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Judge hears crematorium case, to mail ruling
By Jana Seshadri
Though the much-anticipated crematorium case was heard in San Jose Superior Court Nov. 13, presiding Judge Thomas W. Cain did not hand down his decision in court.
According to Rebecca Moon, assistant city attorney for the city of Sunnyvale, the judge will mail his ruling.
The judge's decision will determine whether the council will rehear the application of the crematorium.
Thomas Dwyer, who lost the city council race Nov. 6, had filed a lawsuit against Sunnyvale contending that the city approved addition of a crematorium to Wyant and Smith Mortuary last December was approved without properly notifying all the property owners within 300 feet of the mortuary. Dwyer contends he didn't receive notification. The newly installed crematorium started operating Oct.2.
"This is essentially a question of whether or not my client's constitutional right of due process has been denied by Sunnyvale," said Alexander Henson, Dwyer's attorney. Henson argues that a person is entitled to notice if his property rights will be affected. According to Henson, of the 47 homes in the immediate neighborhood of the mortuary, 18 homes were not even on the mailing list.
"There's been no evidence of that," Moon argued, that the city notified all the residents in the neighborhood through a computer-generated mailing list and the omission could have happened. According to Government Code No. 65010, section B, even if the court finds a procedural error, a city council's decision cannot be reversed by the courts unless the error is found to be prejudicial and would harm the defendant substantially.
In this case, Moon said, the city council heard all the concerns from the residents and a different result would not have been probable, had Dwyer been present during the council meeting last December.
"What if Dwyer had a concern that wasn't heard by the council?" Judge Cain asked. Henson also argued that the court cannot speculate about Dwyer's concerns and no one can predetermine what the council's decision would have been.
Dick Smith, owner of the mortuary, was present in court during the hearing. Smith's attorney, Mark Hynes, displayed a large photograph to the court, which showed an aerial view of the whole area in question. Hynes explained to the judge that before the council meeting last December, notices were published in the newspapers, posted around the neighborhood and on the city's website.
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Sunnyvale, California Since 1994
