11/12/2008

Ohio Law Restricting Location of Crematory Does Not Apply to Funeral Home

By T. Scott Gilligan, OFDA General Counsel

Ohio Law Restricting Location of Crematory Does Not Apply to Funeral Home
By T. Scott Gilligan
OFDA General Counsel

Seeing the inevitable rise in the cremation rate, an OFDA member recently decided to take the leap and install a crematory in the funeral home. The member contacted the local zoning commission and, despite objections from a nearby neighbor, obtained the required zoning permits to install the crematory.

However, prior to the retort being installed in the funeral home, the objecting neighbor threatened legal action if the crematory was installed. The neighbor also produced a copy of Section 1721.18 of the Ohio Revised Code. That section, which went into effect in 1953, provides any company incorporated for the erection and maintenance of a crematory may not erect a crematory within 200 yards of a dwelling house unless the owner of the dwelling house gives his consent. The neighbor, whose house was within 200 yards of the location of the proposed crematory, claimed he would file suit based upon the statute if the funeral home proceeded with its plans.

The member contacted OFDA to determine if the law would prohibit the establishment of the crematory at the funeral home. Fortunately, we were able to locate a 1986 Ohio Supreme Court case which greatly limited the application of the statute. In that case, a funeral home in Sandusky, Ohio obtained a building permit to construct a crematory. After the crematory was built, a neighbor who lived 90 feet away from the crematory sued the funeral home claiming the crematory was constructed in violation of Section 1721.18. The trial court agreed and imposed damages against the funeral home for interfering with their neighbor's peaceful enjoyment of their property.

The Ohio Supreme Court reversed the trial court's decision and found Section 1721.18 did not apply to the funeral home. In doing so, it held the restrictions in the statute would apply only to a company that had been incorporated for the erection and maintenance of a crematory. Since the Sandusky funeral home's Articles of Incorporation indicated it was formed not only to operate a crematory, but also to operate a funeral home, the statute did not apply.

The Ohio Supreme Court's ruling greatly limits the scope of the restrictions found in 1721.18. As long as the funeral home's Articles of Incorporation does not state the business is organized solely for the purpose of operating a crematory, the statute will not apply to the funeral home when it seeks to build a crematory.

OFDA members with a question regarding this article may contact Scott Gilligan at (513) 871-6332.