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Court rules in favor of Sunnyvale, funeral home
Council will not have to rehear crematorium's application
By Jana Seshadri
Thomas Dwyer III has lost, once again. Judge Thomas W. Cain Superior Court handed down the much-awaited decision on the Wyant and Smith crematorium case Nov. 29. Judge Cain denied Dwyer's petition against the Sunnyvale City Council to rehear the application of the crematorium.
"I'm disappointed that the judge ruled against us," said Alexander Henson, Dwyer's attorney.
Dwyer filed a lawsuit last May to contest the council's approval of adding a crematorium to an existing mortuary without proper notification. The issue prompted Dwyer to run for a council seat during the Nov. 6 municipal general election, but he lost to incumbent and current mayor Fred Fowler.
The council granted a use permit to the Wyant and Smith Mortuary in December 2000 to add a crematorium to the facility. The crematorium began operation Oct. 2.
The case was heard in the Superior Court in San Jose on Nov. 13. Henson argued in court that, contrary to state regulations, which recquires all residents within 300 feet to be notified, the city's mailing list did not include 22 homes. Dwyer was one of those who didn't receive notification.
"The judge seems to be skeptical of the petitioner's evidence," said Sunnyvale assistant city attorney Rebecca Moon.
Moon conceded in Court that some property owners were missed, including Dwyer, because the list was computer- generated and there were omissions. However, notices were posted at the site and on the television station KSUN, she added. And Judge Cain agreed with Moon in his ruling.
"The city of Sunnyvale did meet the minimum requirements of affording a realistic opportunity for the petitioner to protect his interests," Judge Cain stated in his ruling. "The various postings, publications, mailings and the very active and complete participation by a substantial number of property owners and community members at the two public hearings, who raised all the concerns that the petitioner seeks to assert, are some of the aspects that tip the balance toward such a determination."
According to Moon, Dwyer's lawsuit violated the 90-day statute of limitations in the government code regarding land use. Dwyer had until March to file his suit, but he didn't file it until May. Henson argued in court that Dwyer could not file the lawsuit within the 90-day period simply because he did not know about the crematorium hearing earlier. Again, the judge was not convinced. In his ruling, Cain wrote there is no information about when or how Dwyer became aware of the city's approval of the crematorium use permit.
"[Dwyer] seeks to avoid the statute of limitations requirements ... by simply claiming that he was unaware of the respondent's permit decision until 'sometime within 90 days of filing the petition,'" Cain wrote in his decision. "Having missed these statutes of limitations by as much as two months, the court is not persuaded to blindly accept this conclusionary statement. ... To do so would render such statute of limitations and the legislative intent they seek to achieve meaningless in that anyone, at anytime, even years later, could make such an unsupported claim."
The judge's ruling for the city on every ground came as a surprise to Henson. Based on the judge's questioning during the hearing, Henson said he thought the judge was leaning more toward his client.
"He did not even give us one iota," Henson said.
Henson said he did not think his client would appeal the decision, although he said he was not sure. Dwyer could not be reached for comment.
Dick Smith, owner of the mortuary, said he was pleased that the ruling favored the city even though he did not consider it a win for himself.
"This is just something we needed to do," Smith said.
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Sunnyvale, California Since 1994
