The state has lost its bid for a court order that would have permanently blocked Amigone Funeral Home from reopening its controversial crematory on Sheridan Drive in the Town of Tonawanda.
State Supreme Court Justice Henry J. Nowak dismissed a petition for a permanent injunction filed Sept. 23 by State Attorney General Eric T. Schneiderman on behalf of the state Department of Environmental Conservation.
The judge found that an interim agreement Amigone signed in July 2012 regarding the operation of the crematory remains in effect indefinitely, making a permanent injunction unnecessary.
At that time, Amigone agreed to a six-month moratorium on operating the crematory from July 22, 2012, through Jan. 22, 2013. Amigone’s 43 neighbors feared that when the moratorium expired, Amigone would reopen the facility, which they say damages their quality of life with its noise, soot and odors. So the state sought the permanent injunction.
But the judge ruled last week that the agreement is still in effect, and he cited its provisions for what Amigone must do if it wants to reopen the crematory at the current location.
It has to give two weeks’ written notice to the attorney general and retain a third-party consulting firm “to determine the validity of and develop recommendations for on-site operational changes that will address the residents’ concerns regarding odors, soot, smoke and further ensure compliance with the law.”
In addition, at least seven days before reopening the crematory, it has to give the attorney general a report on those recommendations along with its plan for implementing them.
The judge also found that under the agreement, the attorney general “may not bring any civil or criminal claim” about past alleged violations of state law in the operation of the crematory that are referenced in the agreement. He said the attorney general’s petition for a permanent injunction included the previous claims alleged in the agreement.
Amigone does not dispute that neighbors have complained about the crematory when it was in operation from 1991 to July 2012 but says it has never been found in violation of any air pollution or noise limits.
Amigone said the agreement resolved all allegations of violations contained in the petition for a permanent injunction and that the filing of the petition was a breach of the agreement.While denying the state bid for an injunction, the judge also denied Amigone’s claim that the state legal action was frivolous and that the state should pay Amigone’s attorney’s fees.
He noted that the state had cited a July 15, 2013, letter from Amigone’s attorney to the Clean Air Coalition of Western New York.
In the letter, Amigone indicated it would reopen the crematory at its current location on July 30, 2013, if it was unable to move forward with a county hearing on its request to designate a new area on its Sheridan Drive property as “cemetery land” so it could move the crematory a few hundred feet farther away from Werkley Road, the street behind the funeral home.