Family members of 215 decedents whose graves in St. Matthews Cemetery were moved when portions of the land began to collapse into a creek will have some say in the final resting spot of their deceased loved ones.
Erie County Supreme Court Judge Dennis E. Ward on Monday denied St. Matthew Cemetery’s request for retroactive approval of the relocation of the burial sites after it had already moved them this spring.
In other words, the cemetery in West Seneca may have to again exhume the grave sites and move them to different locations or even other cemeteries depending on the wishes of family members and a final ruling by the court.
Ward stated that to determine a final resting place for each of the decedents, the cemetery should continue to notify next-of-kin for each of the 215 decedents. He appointed two referees to coordinate the effort.
“Though the Court denied the Cemetery’s request for retroactive approval of its actions ‘at this time,’ it established the process through which the Cemetery can gain this approval,” St. Matthews said in a statement.
The decision is a new twist in what became a controversial decision by cemetery officials to move the graves sites without approval from the families or the court.
Cemetery officials on April 9 noticed that a strip of land on the south bank of Cayuga Creek began to collapse, forming a scarp close to the grave sites.
Later that day, the cemetery inquired with three contractors for plans to stabilize the ground.
Joseph D. Dispenza, the president of Forest Lawn Cemetery, a nonprofit that owns St. Matthews, said in an affidavit that the contractor he selected noted that “immediate action was required to stabilize the ground next to the grave sites.”
From April 12 through April 19, the contractor worked to stabilize the ground with 60-foot steel sheets to build a wall.
But the ground continued to shift toward the creek.
“Forest Lawn immediately brought back our team of experts to assess whether the situation posed imminent danger to the graves,” Dispenza said in his affidavit.
“My immediate concern was whether it would be necessary to move the graves to protect them. [The contractor] responded to me: “I don (sic)not believe that any action is required at this time to address the condition of the grave sites, although the ground settlement may not have stopped… the wall appears to be stable and does not appear to have moved towards the creek.”
On Easter Sunday, Dispenza said the “situation had drastically changed for the worse.”
The steel wall had begun to slope downward and the ground had continued to fall toward the creek. Dispenza said he called an emergency meeting where the group decided to move the grave sites.
State law allows grave sites to be relocated, but cemeteries generally must first secure consent from family members. If family members do not provide consent, the cemetery must petition the State Supreme Court for approval.
But St. Matthews Cemetery officials failed to obtain all the consents it needed to move the graves.
Instead, citing an emergency, the cemetery went forward with moving the grave sites approximately 900 feet away and sought court approval after the work had finished.
“It really is the most horrible decision-making that I could’ve imagined in a case like this,” said Barry Covert, an attorney representing more than 70 families.
Covert said Tuesday the dispute is with the cemetery’s attempt to characterize the situation as an emergency, which made it impossible to obtain permission from family members on such short notice.
He said the cemetery had prior knowledge that the ground was unstable “well before” the emergency action. Some of his clients, he said, have lost trust with the Forest Lawn group of eight cemeteries.
“It’s a mess, it’s horrible, and they could have avoided this all,” Covert said.
“Because even if they claim there was a bad section of the cemetery that was in danger of having the ground move toward the creek, they could have just moved those caskets (closest to the creek) at first and then sought permission for the other 210 or 205. They had plenty of time to do that.”
Judge Ward said in his Aug. 26 ruling that his role was not to render a decision on whether an emergency existed, although he noted that “the unique circumstances of this case necessitated the Cemetery’s actions.”
Nonetheless, “The Cemetery has no authority under the statute to make the final decision, unless its initial action is subsequently ratified by the appropriate family member or by the reviewing court,” the judge ruled.
“Absent the family’s consent, it becomes the court’s duty to determine the appropriate final resting place for each decedent.”