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Crematorium battle rages on as hearing on lawsuit set
Thomas Dwyer claims city did not meet noticing rules
By Jana Seshadri
Thomas Dwyer may have lost his bid for a seat on the Sunnyvale City Council, but his battle against the crematorium in his neighborhood is gaining ground. This issue, which prompted Dwyer to enter the council race in the first place, was scheduled to be heard Nov. 13 at 9 a.m. in the San Jose Superior Court,at 191 N. First St., according to Sunnyvale Assistant City Attorney Rebecca Moon.
Dwyer filed the lawsuit last May in the Superior Court of Santa Clara County to contest what he argues was the council's approval of a crematorium to an existing mortuary without proper notification of neighbors. The council granted a use permit to the Wyant and Smith Mortuary last December to add a crematorium to the facility. The crematorium began operating Oct. 2.
Some residents in the neighborhood, especially those belonging to the Heritage District Neighborhood Association, protested the council's approval arguing that the city violated state regulations that require all property owners within 300 feet of the funeral home to have been notified prior to hearings on the subject by mail.
Dwyer, who belongs to the association and lives in the immediate neighborhood of the mortuary, claims that not everyone in his neighborhood was informed of the hearings on the crematorium ahead of time.
"I hope the judge will revoke the council's permit," Dwyer said. If it does, the council will have to rehear the application for the use permit, which is what Dwyer would like to see happen.
"Forty-five percent of the neighbors were not notified properly," said George Bull, co-president of the association. The purpose of this notification is to give people enough warning to allow them to participate in hearings on subjects that immediately impact neighbors.
Alexander Henson, attorney for Dwyer, said that the mailing list of property owners, which is the main evidence, "inexplicably omitted" from the mailing list 22 homes within 300 feet of the mortuary.
Moon agrees that some property owners were missed, including Dwyer, because the list is computer-generated and this omission did happen. However, notices were posted at the site and on the television station KSUN.
Furthermore, Moon contends that Dwyer's lawsuit was not filed within the 90-day statute of limitations in the government code regarding land use, which the city will use as its defense. Dwyer had until March to file his suit, but didn't file it until May.
City council members have been instructed by the city attorney not to talk about the issue because it's under litigation.
The mortuary has been operating at the 174 N. Sunnyvale Ave. location since 1952. Since it began doing business, the city has zoned the area R2, which classifies it as a low/medium-density residential area. This gives the neighborhood protection from future businesses cropping up and limits existing businesses from expanding.
According to Smith, however, "this mortuary has not been expanded." Instead, he says that he was enhancing the personalized service that he has always offered to his clients.
Smith said he has been cremating bodies for decades--only, the bodies were being sent to different locations. Concerned about his clients not getting back the correct remains of their loved ones, Smith decided to install a crematorium in his own facility, even though he says it will not be a financially lucrative proposition for him.
One other concern the residents have is that their property values will drop significantly if there is a crematorium in their neighborhood. Bull is concerned it will not do much good for the downtown area either. The city is pouring in millions of dollars into revamping the downtown area, and a crematorium in the neighborhood will only harm future development, he argues.
"We have a serious economic problem here," Bull said.
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Sunnyvale, California Since 1994
