§ 1506-E — Lease of cemetery lands

§ 1506-e. Lease of cemetery lands.\n (a) Cemetery board approval. Except as set forth in paragraph (i) of\nthis section, no cemetery corporation shall lease any portion of its\nland without notice to and approval of the cemetery board.\n (b) Requirements for approval of a lease of cemetery land. The\napplication to the cemetery board for approval to lease cemetery land\nshall meet the following requirements:\n (1) The cemetery's lot owners or board of directors have approved the\nlease.\n (2) If the cemetery has any existing leases of land, it must disclose\nthem so the board can consider the impact of existing leases on cemetery\noperations.\n (3) In addition to its submission to the cemetery board, the cemetery\ncorporation shall, no earlier than ten days prior to such submission,\npost notices in the immediate proximity of the land proposed to be\nleased, the cemetery office and, in a manner so as not to violate local\nzoning ordinances or to create a traffic hazard, all entrances. Each\nsuch notice shall provide information written in plain English\nconcerning the proposed lease and, if the proposed lease includes\nconstruction of new structures or buildings, include a drawing, which\nshall be an accurate rendition of the proposed construction. In\naddition, such notices shall state the telephone number and address\nwhere comments may be received and the last date on which such comments\nwill be accepted, which shall be no earlier than sixty days following\nthe date the notices are posted.\n (4) The proposed lease has been negotiated at arm's length for a fair\nmarket rent and contains all of the agreements between the parties.\nWhere the proposed lease would be a related party transaction under this\nchapter, the cemetery shall disclose this fact and demonstrate\ncompliance with restrictions related to such transactions, as set forth\nin section seven hundred fifteen of this chapter, and the cemetery board\nmay require that the lease contain a clause by which the cemetery board\nmay set reasonable reporting requirements that would disclose any\nfinancial relationship between the lessor and lessee related to the\nleased property.\n (5) The initial lease term is not greater than forty-nine years, and\nthe cemetery demonstrates that such a term will not interfere with land\nneeded for burial purposes. Notwithstanding the provisions of this\nsubparagraph, the cemetery board may approve a lease with extensions of\nthe initial term not to exceed ninety-nine years from the date of the\ninitial lease, provided that the security shall be updated at year\nforty-nine and every twenty years afterward during the term of the lease\nand all extensions thereof, if applicable, and approved pursuant to\nparagraph (h) of this section.\n (6) If the proposed lease involves land adjacent to cemetery\noperations, the proposed lease requires the tenant to construct and\nmaintain a physical or visual buffer approved by the cemetery board,\nwhich may be vegetative, and that protects visitors to the cemetery, and\nthat otherwise complies with the requirements of this section.\n (7) The proposed lease requires the tenant to be responsible for any\nand all taxes, assessments, and charges related to its occupancy and use\nof the land, whether imposed against the tenant or the cemetery\ncorporation.\n (8) If the proposed lease includes permission to construct any\ninfrastructure, buildings or other structures, the application to the\ncemetery board shall provide for the removal of such infrastructure,\nbuildings or other structures after the cemetery retakes possession of\nthe land, unless the infrastructure, buildings or other structures are\nto be retained by the cemetery pursuant to paragraph (f) of this\nsection.\n (9) The proposed lease shall include an agreement to pay for the\nremoval of any proposed infrastructure, buildings and structures, except\nany that are approved to be retained as set forth in paragraph (f) of\nthis section, and return the land to a condition suitable for cemetery\nuse upon the expiration or termination of the lease and such agreement\nshall be secured by a fund, bond, letter of credit or other security\nsufficient to pay for such future removal. The application shall include\na written description of the proposed funding mechanism for the\nestablishment of a fund, written evidence of a bond, or other security\nto the cemetery board for payment of the cost of restoring the leased\npremises to a condition suitable for use for cemetery purposes at the\nend or earlier termination of the term of the lease, including but not\nlimited to the cost of removing any and all buildings and structures\nthat may then be located on the leased premises and will not be\nretained. Any such bond shall be issued by an entity authorized to do\nbusiness in the state of New York, and any irrevocable letter of credit\nor a certificate of deposit shall be from a New York state or federally\nchartered bank, trust company, savings bank or savings and loan\nassociation that is qualified to do business in the state of New York\nand insured by the federal deposit insurance corporation.\n (10) The land proposed to be leased will not be used for any activity\nthat would be disruptive to cemetery operations or that would have a\nsignificant impact on cemetery traffic.\n (11) If the proposed use or activity arising therefrom could disturb\nnormal and usual cemetery activities, the proposed lease limits the\nhours of activity.\n (12) The proposed lease will not include the manufacture or disposal\nof hazardous material or the use or storage of hazardous material in\nviolation of any law or otherwise create a significant risk of\nenvironmental harm to the cemetery property.\n (13) The proposed lease may permit assignment or sub-leases, including\nsub-leasing and assignment of space on cell towers to communications\nproviders, provided the original lease remains in effect and the use\nremains the same.\n (c) The following uses are deemed to comply with subparagraph ten of\nparagraph (b) of this section:\n (1) Communications service facilities, also known as cell towers;\n (2) Solar panels; and\n (3) Energy storage equipment, as defined in section four hundred\nninety-nine-aaaa of the real property tax law.\n (d) For any lease involving related party transactions pursuant to\nsection seven hundred fifteen of this chapter, the cemetery board may\nset reasonable reporting requirements that would disclose any financial\nrelationship between the lessor and lessee related to the leased\nproperty.\n (e) Any material modification, alteration or expansion of the lease or\nadditions of any infrastructure, structures or buildings outside the\nscope of the prior approval requires cemetery board approval.\n (f) If the cemetery corporation intends that any infrastructure,\nstructures or buildings proposed under the lease be retained and used\nfor cemetery purposes after the lease terminates or expires, the\napplication to approve the lease shall also include an application for\napproval of such infrastructure, structures or buildings as intended to\nbe used by the cemetery. The board shall render decision on the\napplication for a major alteration in conjunction with the decision on\nthe application to lease cemetery land. If that application is approved,\nsuch infrastructure, buildings or structures shall be excluded from the\nrequirements of subparagraph nine of paragraph (b) of this section.\n (g) The application shall include at least two written estimates of\nthe cost of removing the infrastructure, buildings and structures\nexcluding retained infrastructure and associated structures and\nreturning the land to a condition suitable for burial purposes at the\nconclusion of the lease.\n (h) (1) The cemetery board shall approve the type and amount of the\nsecurity which shall be maintained in full force and effect, in an\namount not less than that which was approved by the cemetery board,\nuntil: (i) the leased premises shall have been restored to a condition\nsuitable for use for cemetery purposes at the end or earlier termination\nof the term of the lease, (ii) any and all buildings and structures then\nlocated on the leased premises shall have been removed, (iii) proof in\nform acceptable to the cemetery board demonstrating that all costs of\nsuch restoration and removal work have been paid in full and that no\nperson or entity performing labor or furnishing materials for such work\nhas filed a notice of mechanic's lien that shall have been delivered to\nthe cemetery board, provided however that a cemetery may contest such\nlien as long as such contest prevents the foreclosure of a lien, and\n(iv) if applicable, each governmental unit or agency that issued any\npermit for such restoration and removal work shall have issued a\ncertificate of compliance or other similar instrument indicating that\nsuch work has been completed in a due and proper manner. The parties\ndirected to perform the restoration and removal work contemplated by\nthis paragraph and as approved by the cemetery board shall not be\nlimited by the amount of the bond, letter of credit, or certificate of\ndeposit or by any inability to recover all or any part of such bond,\nletter of credit, or certificate of deposit from the issuing surety,\nbank, trust company, savings bank, or savings and loan association.\nNeither the cemetery board nor the department of state shall be liable\nto the tenant, the cemetery, or any other person or entity by reason or\nany determination or approval made under this paragraph.\n (2) Prior to the commencement of construction, the cemetery shall\nsubmit proof to the cemetery board that such security in such amount is\nin place.\n (i) Leases for the following uses do not require cemetery board\napproval:\n (1) A lease or license to grow and harvest crops with a term less than\nfive years;\n (2) A lease of a dwelling to the caretaker or other officer or\nemployee of the cemetery that is actually used and occupied as that\nperson's residence; and\n (3) A renewal or assignment of an existing lease of existing\nstructures on land owned by the cemetery, not dedicated to cemetery\npurposes and that was subject to a lease, provided that such purchase or\nacquisition was approved by a court or the cemetery board, if such\nrenewal does not change the scope of the existing lease.\n (j) All lease payments and other consideration received by the\ncemetery corporation, less the necessary expenses incurred, shall be\ndeposited into the permanent maintenance fund established by the\ncemetery corporation pursuant to paragraph (a) of section fifteen\nhundred seven of this article, except that upon a showing of a need to\nfund specific projects, maintain and preserve, or expand current\ncemetery operations, the cemetery board may permit any portion of the\nlease payments or other consideration to be used for such purposes, with\nthe remainder to be deposited to the permanent maintenance fund.\n