Can a New York town transfer a town cemetery to a village within its borders without special legislative authorization?

Plain-English summary

The Village of Webster wanted to take over a cemetery located within its boundaries, then under the Town's title, so the Village could restore and maintain it. The straightforward path looked like General Municipal Law § 72-h, which lets a town board convey real property to a village for nominal or no consideration. But § 72-h(b) carves out anything "otherwise made inalienable by state or local law." That carve-out is what tripped up the proposed transfer.

The AG concluded that a town-owned cemetery is inalienable by state law. Two textual signals supported that reading.

First, Town Law § 292 specifically authorizes a town to convey a cemetery to a not-for-profit cemetery corporation. Listing one type of permitted transferee strongly implied that other types of transferees, including villages, were not permitted (the canon of construction expressio unius est exclusio alterius).

Second, Town Law § 296 spells out an entirely separate route for converting cemetery land to ordinary disposable property: the town can petition a court to remove the interred remains and reinter them elsewhere. Once that's done, the town "may convey or otherwise dispose of the land in the same manner as other town lands." If a town could already convey cemetery property under ordinary procedures, § 296's removal-and-reinterment process would be unnecessary. The provision exists because the underlying cemetery property cannot be conveyed under ordinary procedures.

So General Municipal Law § 72-h was unavailing. The right path was special legislation. The opinion noted historical precedent for exactly this kind of transfer: Town Law § 291(4) authorizes a transfer from the Town of Southampton to the Village of Sag Harbor, and ch. 669 of the Laws of 2002 authorized a Southampton-to-North Haven transfer. A 1972 informal opinion had similarly concluded that Southampton lacked authority to convey cemetery land to a village without a special act of the Legislature.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: How does a piece of land become a town cemetery in the first place?
A: Town Law § 291(1) is the vesting statute: title to land used by the inhabitants of a town as a cemetery or burial ground for at least 14 years vests in the town. The opinion treated this rule as the starting point and assumed the town held title to the cemetery in question on that basis.

Q: What is the expressio unius canon and how did it work here?
A: It means "the expression of one is the exclusion of another." When a statute lists permitted recipients of an authorized action and stops there, courts and the AG read the list as exhaustive. Town Law § 292 explicitly permits transfer to a not-for-profit cemetery corporation. The absence of any other permitted recipient category suggests the Legislature didn't mean to allow other transfers under that section.

Q: What's the procedure under § 296 if a town wanted to dispose of cemetery land?
A: The town can petition a court for an order to remove the interred remains. Once the remains are removed and reinterred in another cemetery, the now-former cemetery land can be conveyed like any other town real property. That procedure is the legislature's chosen path for divesting cemetery character; it cannot be bypassed by routing through § 72-h or some other intermunicipal-transfer mechanism.

Q: Could the Village just maintain the cemetery without a title transfer?
A: The opinion didn't address an arrangement short of conveyance, but a maintenance contract or intermunicipal cooperation agreement under General Municipal Law article 5-G could plausibly let the Village do restoration work without taking title. The opinion's holding is narrowly about transfer of title.

Q: Where did the historical precedents come from?
A: Three Southampton examples. Town Law § 291(4) was added by special legislation to authorize a transfer from Southampton to Sag Harbor. Chapter 669 of the Laws of 2002 was special legislation authorizing a transfer from Southampton to North Haven. A 1972 informal opinion concluded Southampton needed special legislation for a third proposed transfer. The pattern is consistent: cemetery transfers between municipalities have been done by going to the Legislature, not by relying on general intermunicipal authority.

Background and statutory framework

New York's cemetery law sits in a few places. Town Law article 14 deals with town-held cemeteries. Section 291(1) vests title in the town. Section 292 authorizes transfer to not-for-profit cemetery corporations. Section 296 handles disinterment and conversion to ordinary town land. Village Law § 15-1500 confirms that villages can acquire property for cemeteries, but the question here was whether a particular acquisition was authorized.

General Municipal Law § 72-h is the general intermunicipal transfer provision. It lets a town board, in its discretion, convey real property to a village (or other named units of local government) for nominal or no consideration. Subsection (b) excepts any property "otherwise made inalienable by state or local law."

The interplay among Town Law §§ 291, 292, and 296 makes town cemeteries inalienable by ordinary procedures. The AG's opinion treats that statutory architecture as the "otherwise made inalienable" carve-out that takes the cemetery off the table for § 72-h transfer.

Citations and references

Statutes:
- Town Law § 291 (cemetery title)
- Town Law § 292 (transfer to not-for-profit cemetery corporation)
- Town Law § 296 (removal of remains and conveyance)
- General Municipal Law § 72-h (intermunicipal transfer)
- Village Law § 15-1500 (village cemetery acquisition)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2012-9_pw.pdf

Original opinion text

Town Law §§ 291, 291(1), 291(4), 292, 296; Village Law § 15-1500; General
Municipal Law §§ 72-h, 72-h(a), 72-h(b); Session Laws 2002 CH 669
Transfer of a town cemetery to a village requires specific legislative approval.

September 6, 2012
Donald A. White
Village Attorney
Village of Webster
Davidson Fink LLP
28 East Main Street
Suite 1700
Rochester, New York 14614

Informal Opinion
No. 2012-9

Dear Mr. White:
You have requested an opinion relating to the Village's possible acquisition of
a cemetery within the Village from the town within which the Village, and the
cemetery, is located. You have advised that the Village wishes to obtain control
over the cemetery so that the Village may restore and maintain it. Specifically, you
have asked whether the transfer of the cemetery from the Town to the Village
requires authorization, in the form of a special law, from the Legislature. As
explained below, we are of the opinion that specific legislation is required before the
cemetery can be transferred.

For the purpose of analysis, we assume that the Town currently holds title to
the cemetery. Pursuant to Town Law § 291, the title to land used by the
inhabitants of the Town as a cemetery or burial ground for at least 14 years vests in
the Town. Town Law § 291(1). You have provided facts that suggest that the
cemetery in question was used as a public burial ground for more than 14 years,
and thus this assumption is well-founded.

A village can acquire property for a cemetery. Village Law § 15-1500. And a
town board can transfer real property to a village for little or no consideration
pursuant to section 72-h(a) of the General Municipal Law. But section 72-h does
not authorize a town to transfer property that otherwise is made inalienable by
state or local law. General Municipal Law § 72-h(b). We are of the opinion that a
cemetery owned by a town is inalienable pursuant to state law and thus that the
authority granted by section 72-h is unavailing to effect the proposed transfer.

We reach this conclusion in light of the statutory scheme the Legislature
enacted relating to town powers and responsibilities with respect to cemeteries.
First, state law specifically permits a town to transfer a cemetery to a not-for-profit
cemetery corporation but does not expressly authorize a transfer from a town to any
other type of entity. Town Law § 292. The express authority to convey a cemetery
to one type of entity implies that transfers to other types of entities, including other
municipalities, is not permitted. Statutes § 240, 1 McKinney's Cons. Laws of N.Y.
at 411-12 (1971) (statutory construction principle of expressio unius est exclusio
alterius). Second, state law establishes a procedure whereby a town can petition a
court to have the interred remains removed from a cemetery and, upon their
removal and interment in another cemetery, the town can "convey[ ] or otherwise
dispose[ ] of [the now-former cemetery] in the same manner as other town lands."
Town Law § 296. The authority to convey cemetery property like "other town lands"
once it is no longer used as a cemetery indicates that that a transfer under ordinary
procedures governing conveyance of town property is forbidden when remains are
interred there.

We therefore recommend that you seek special authorizing legislation before
proceeding with the transfer of the cemetery from the Town. Municipalities have
sought and received legislative grants of authority to make such transfers. Town
Law § 291(4) (transfer by town of Southampton to village of Sag Harbor); Act of Dec.
9, 2002, ch. 669 (transfer by town of Southampton to village of North Haven); see
also 1972 Op. Att'y Gen. (Inf.) 202 (town of Southampton not authorized to convey
title to cemetery lands to village without special act of Legislature).

The Attorney General issues formal opinions only to officers and departments
of state government. Thus, this is an informal opinion rendered to assist you in
advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
in Charge of Opinions