Middletown, PA

Council to seek injunction to block proposed crematory

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Press And Journal Photo by Dan Miller — Middletown resident David Black, standing, objects to a proposed crematory at Fager-Finkenbinder Funeral Home during a Middletown Borough Council meeting.

Middletown Borough Council voted 8-1 on Tuesday, Feb. 2  to hire legal counsel toward filing a court injunction to block a proposed crematory behind the Fager-Finkenbinder Funeral Home at 208 N. Union St.
Council had not hired a lawyer as of Monday, Feb. 8, but was “working on it,” Council President Ben Kapenstein said in an e-mail to the Press And Journal. Nothing had been filed in court, and filing an injunction is not expected until after council hires the outside lawyer, Kapenstein said.

Asked for comment regarding council’s plan to file an injunction, Travis Finkenbinder, owner of the funeral home, told the Press And Journal in an e-mail, “We received zoning approval for the crematory project more than seven months ago and continue to move forward with the project.”
Finkenbinder said all he knew of council’s intent was what he had read online at the Press And Journal’s Web site. “We are working to learn more about what occurred during the meeting last week,” he said.
In a related development, the state Department of Environmental Protection (DEP) sent Fager-Finkenbinder a “technical deficiency letter” by certified mail on Monday, Feb. 1 that requested more information regarding the funeral home’s application for an air quality permit to open and operate the crematory.
Council’s surprise action to file the injunction came after councilors – for the second time in two weeks – heard pleas from residents living near the funeral home who are against the proposed crematory.
“This is not right,” said Kirk Ramsey of the 100 block of N. Pine St. “We don’t want this. Everybody in this town is going to lose money. What does Middletown have to gain from this? Nothing.”
Council will have to obtain separate legal counsel because the law firm that is the borough solicitor, McNees Wallace & Nurick of Harrisburg, also represents Fager-Finkenbinder. “They have a conflict,” Kapenstein explained.

In October, Fager-Finkenbinder filed an application with the DEP to operate the crematory at the site. The application is under technical review by DEP – the agency’s target date to finish the review is May 20, but that date was set before DEP sent its “technical deficiency letter.’’
Among  other things, the letter asks Fager-Finkenbinder for more information regarding emissions from the crematory as well as the type and amount of waste generated. The letter asks that the funeral home provide data from a “stack test” that has been conducted within the past five years, noting that the data Fager-Finkenbinder provided in the application was from a test done on Jan. 7, 2009.
The letter asks that Fager-Finkenbinder provide “an acceptable temperature range.” The funeral home application lists a temperature range from 1,400 to 1,800 degrees Fahrenheit, but the secondary combustion chamber temperature during the cremation cycle “must be equal to or greater” than 1,800 degrees Fahrenheit, DEP said in the letter.
The letter asked that Fager-Finkenbinder provide emission calculations for all pollutants based upon the maximum operating potential of 8,760 hours a year as stated in the application. Finally, DEP asked whether the crematory will have “an opaque monitoring device” which is referred to in state regulations as “an alternative” to visually observing the crematory exhaust stack for “the presence of visible and odor emissions.”
DEP also asked for a response from Fager-Finkenbinder within 30 days.
Documents filed as part of the Fager-Finkenbinder application identify 29 residential properties – homes and garages – that are within a 250-foot circle drawn around the proposed crematory.
The residents contend that the crematory will emit potentially harmful mercury emissions – from dental implants in the remains of some of those who would be cremated at the site – as well as offensive odors. Concerns have also been raised over intrusive lighting coming from the facility.
The crematory would reduce the value of nearby properties and conflict with the borough’s ongoing downtown revitalization, the residents say.
“How can we possibly expect to bring new people into our town when we have something like this in the midst of it?” said Jo-Ann Lauffer, of the 200 block of N. Pine St.
She asked that council render “null and void” a determination issued on June 24 by former Middletown Codes Enforcement Officer Jeff Miller that gave Fager-Finkenbinder local zoning approval for the crematory as an “accessory” use to the funeral home. Miller resigned in early December.
According to documents included in the DEP permit filing, Miller rendered that written decision just one day after receiving the application from Fager-Finkenbinder.
Residents also point to documents included in Fager-Finkenbinder’s DEP application stating that the crematory could potentially operate 24 hours a day, seven days a week and 52 weeks a year, although Fager-Finkenbinder also states in the application that the crematory’s actual “operating schedule” would be 12 hours a day, six days a week and 52 weeks a year.
The residents contend that even the 12 hours a day operating schedule would eventually lead to the crematory becoming the primary business driver at the funeral home, which would invalidate the “accessory” finding upon which Miller’s determination was based.
Residents say they fear that Fager-Finkenbinder intends to use the crematory to incinerate remains from all four of its funeral homes, not just the one in Middletown. Fager-Finkenbinder also owns funeral homes in Palmyra, Elizabethtown and Marietta.
“We believe that a review of Mr. Miller’s approval of the Fager-Finkenbinder request should determine whether or not Mr. Miller himself or any other members of the borough management were aware of Fager-Finkenbinder’s intention to operate the crematory up to 12 hours a day or even 24/7,” said David Black, who lives next to the funeral home, said in prepared remarks to council.

Council’s response
After hearing comments from residents, Councilor Robert Reid called on council to seek an immediate injunction. “Do we have enough time to stop this?” Reid asked.
The residents erupted into applause after Councilor Greg Wilsbach added, “We should do everything in our power to try and stop this project.”
But others on council warned against moving too fast.
“Right now we can’t make decisions without legal consultation,” said Vice President Damon Suglia.

However, the only councilor to vote against the motion was Diana McGlone. While saying she shares the concerns of the residents, “I do not like the language of seeking an injunction without getting legal counsel on it first,” McGlone said.
After the vote, Kapenstein said that the motion is for council to “seek out legal counsel and subsequently file an injunction to stop the crematory.”
“We have to hire the attorney first, obviously,” he said. “I’m going to be on it tomorrow. I don’t know how soon it’s going to happen. It seems like we have to move pretty fast. I’ll be calling around tomorrow to try and figure out legal counsel.”
The Press And Journal earlier sent a list of questions detailing the residents’ concerns to funeral home owner Travis Finkenbinder to get a response.
Finkenbinder declined to answer any of the specific questions, but in his response e-mailed to the Press And Journal said that the funeral home is “committed to conforming with all rules, laws and regulations as we install and implement this demanded service at our North Union Street funeral home.”
The supplier of the equipment for the proposed crematory, Matthews Cremation, is part of a 150-year old company based in Pittsburgh that has “dozens of cremation systems in Pennsylvania – several in Dauphin County – all of which have been approved” by DEP, Finkenbinder wrote.
Dan Miller: 717-944-4628, or danmiller@pressandjournal.com

 

Sound Off 2/10/2016

Submissions to Sound Off appear as submitted.

 

“Relative to the crematory at Fager-Finkenbinder Funeral Home. I don’t know what the problem is with the residents. The crematory they are talking about will be in an approved structure, a garage. This garage will look like every other garage on the street but will probably look better and will be better maintained. This is all in your minds. There will be no horror, no evil smelling smoke and pollution or any health or welfare issues. If fact various cultures for thousands of years have cremated their friends and family members on wooden funeral pyres. I would worry more about the deplorable conditions of the Union Street shopping and business area that is between Emaus and Mill streets then I would be about a modern crematory. This would be regulated by state and federal codes. Since the Borough approved it, why not just let this subject go.”

RESPONSE: The problem is that the state and federal regulations on crematory emissions of the toxins which we are concerned about (mercury, dioxins, heavy metals and more) are NON-EXISTENT. There are no regulations on the emissions of these toxins.

Historically speaking, for hundreds of years small numbers of people have cremated remains – but those remains were never as toxic as the remains of humans living today, nor at the populations that exist today. We know a lot more about the pollutants that comes out of these things now.

THE DEBATE OVER A CREMATORY IN DOWNTOWN MIDDLETOWN: A neighbor’s view, and the response from Travis Finkenbinder of Fager-Finkenbinder

 

The following was submitted as a Letter to the Editor from David E. Grabuloff Jr. It is also the text of Grabuloff’s remarks to Middletown Borough Council on Jan. 19.

Following Grabuloff’s letter is a response that was received from Travis Finkenbinder, LFD, president and owner of Finkenbinder Family Funeral Homes, in response to a request for comment from the Press And Journal

Editor:

I and other Borough residents wish to express our concerns regarding the proposed crematory at the funeral home located at 208 N. Union St in an accessory building in a residential district in the center of Middletown. Construction could possibly start in the spring of 2016. Based on the information we have obtained to date about the proposed crematory and the Middletown Borough zoning approval, we have serious concerns regarding the impact this crematory will have on our property values, the environment in which our families live and play, and the general well-being of this great, historic neighborhood in a time of downtown revitalization.   We have the impression that many Middletown residents are still not aware of the potential damage which the proposed crematory could cause to their quality of life and property values. We are also disquieted by the hasty review which the Middletown Borough Authorities seem to have accorded an issue of such potential gravity. A crematory is an incinerator of human remains, and it appears the Middletown Borough has given the funeral home approval to use an accessory building on the funeral home property to incinerate bodies 24 hours a day, 7 days a week, 365 days a year.

The funeral home submitted a Middletown Borough Building and Use Application for zoning approval to convert an existing garage into a crematory on June 23, 2015. Our then Zoning and Codes Enforcement Officer, Jeffrey Miller, approved this application through his response analysis dated June 24, 2015. Are zoning permit applications typically processed in 24 hours? A process that could include all manner of government processes such as paperwork being stamped, logged into a computer, matriculated to the Zoning Officer’s desk, reviewed, researched, and determined.

In the zoning officer’s response, under bullet point 5, he states, “Although not fully analyzed, there are no apparent non-conformities on the subject property.” Isn’t it the job of a Zoning and Codes Enforcement Officer to FULLY ANALYZE all potential hazards and to scrutinize subject properties for NON-APPARENT non-conformities as well as apparent non-conformities, even if this requires more than a single day to respond to a building permit application?

The zoning officer also states that the 2013 Borough Zoning Ordinance “does not provide specific guidance on the subject.” Although he may not have found specific words in the ordinances, we feel there are several ordinances that would require reflection on this matter that would easily extend the approval process to convert an existing garage (an accessory building) into a crematory in a densely populated residential neighborhood past the 24 hours our zoning officer afforded it. This includes several of the points under Article 1 of the Borough Ordinances Section 260-102 Purpose of Enactment. This section touches upon such items as: the promotion and protection of “public health, safety, morals, general welfare, the provision of adequate light and air…the protection of natural and historic features and resources…[and]…the integrity of existing neighborhoods, and to maintain a high standard of air and water quality” along with the adequate regulation of “existing industry in the borough so that it may remain and its noise, odors and other unwanted features can be minimized.”  We believe that the business of the funeral home will remain, but we’re not quite sure adding a crematory to the property will minimize its noise, odors, or other unwanted features. In the very least, these are things that should have been reflected upon.

The proposed crematory will be constructed in an accessory building in the residential zoned property of 208 N. Union St. Middletown Borough Ordinance defines accessory use as ”…a use customarily incidental and subordinate to the principal use or building and located on the same lot with such principal use or building.” What is the principal business of the funeral home –a funeral home that has been in business without a crematory for decades? Is it to provide funeral services for families on the premises of the funeral home at the 208 N. Union St. location? If the proposed crematory performs cremations not intended for funeral services rendered to the patrons of the principal business at 208 N. Union St., is the crematory still using the accessory building for business “customarily incidental and subordinate to the principal use” of the established funeral home on the property?

Also, Middletown Ordinance 260-1501 Accessory buildings, structures, and uses (L) – “Accessory uses include but are not limited to swimming pools, greenhouses and tennis courts.” The crematory is an incinerator of human remains. Do you think an incinerator of human remains, operated for profit, in a residential zone falls under the intended uses of an accessory building when examples provided by the Borough Ordinances are swimming pools, greenhouses, and tennis courts?

Middletown Borough Ordinance 260-110.C(1) – “The following uses are prohibited in all districts throughout the municipality: (1) The incineration, reduction or storage of garbage, offal, animals, fish or refuse, unless by the authority of or under the supervision of the municipality.” Since they will be operating an incinerator (please refer the attached title of the DEP application), is the municipality giving the funeral home authority to incinerate humans (i.e. animals) in our municipality in a residential zoned neighborhood? Is there paperwork relaying this authority to the funeral home?

If at all possible, we would be very interested to learn from Mr. Miller himself, or from one or more of his former supervisors and colleagues in the Borough Management why he/she/they believe that the 2013 Ordinance does not provide specific guidance on the subject and why the issues were not fully analyzed.

In the funeral home’s application to the PA Dept. of Environmental Protection’s Bureau of Air Quality (Title: INCINERATOR: Application for Plan Approval to Construct, Modify or Reactivate an Air Contamination Source…), the funeral home requests in Section B (Titled: Incinerator Information) for review under a “Maximum Operating Schedule” of 24 Hours/day, 7 Days/Week, 8760 Hours/Year and a proposed “Operating Schedule” of 12 Hours/Day, 6 Days/Week, 3,744 Hours/Year which is operating over 10 hours each day, every day, for an entire year. PA Law does allow cremation as an “incidental,” “accessory,” and “subordinate” activity of a funeral home. Yet the proposed operating schedule of 12 hours a day, 6 days a week, 3,744 hours a year suggests that cremations, sooner or later, will become the principal activity at the funeral home rather than incidental, accessory, or subordinate, even if the funeral home management is not consciously contemplating such an outcome presently.

Was this potential operating schedule known to the Middletown Borough authorities when they approved the zoning request to establish a crematory on site on 24 June 2015? Will the funeral home cremate only bodies for services specific to the funeral home at 208 N. Union St. or will they also cremate bodies for services rendered at other funeral homes? If so, would these additional cremations still constitute an incidental, accessory, or subordinate activity of the funeral home at 208 N. Union St?

Allowing these proposed operating hours to go forward without further question in the planning and administrative review of this crematory/incinerator in a residential neighborhood effectively empowers the funeral home to create a primary business in the industrial cremation of bodies right in the heart of our downtown and to use an accessory building to do it. Additionally, this will set a precedent for other businesses to use an accessory building to initiate business that is neither incidental nor subordinate to their principal place of business. Who is going to ensure that the crematory use is customarily incidental and subordinate to the principal use of the funeral home? Who is going to ensure that they are not cremating bodies on a commercial scale?

The potential environmental impact of the crematory on our local community is reflected in the laws and ordinances of many other states. Georgia has a statute which prohibits crematories from operating less than 1,000 feet from residences, and a Georgia state senator has proposed expanding that to 2,000 feet. In terms of 208 N. Union St. there is a habitable dwelling 30 feet from the proposed site, there are 29 residential structures within 250 feet, and many others within 500 feet. Lyall J. Fink Elementary School is less than 1,300 feet away and dead east of the building – wind current typically travels east. Middletown Ordinances were established to require the Borough Management to ensure that no private activities constitute a nuisance or danger to human health and safety, livestock, or plants, or any other property as a result of the emission or dissemination of any fumes, smoke, odor or dust beyond the property lot of the premise upon which use or activity is located. Has the funeral home credibly demonstrated they will not violate this ordinance as they incinerate human remains, possibly on an industrial scale, within 30 feet of habitable dwelling and within 250 feet of many residences and 1,300 feet of an elementary school?

Does the Middletown Borough Management have any information regarding the impact the crematory could have on our air quality, our soil, and the health of our children? Additionally, if the DEP is responsible for conducting quality compliance reviews on the crematory, who from Middletown is responsible for ensuring they do so, especially when the DEP is woefully understaffed and inadequate in their air quality monitoring?

We are in favor of cremation. But frankly we have no desire to look out our windows as we prepare for dinner to see our children play in our yards and see a fully functioning crematory, running day and night, blowing smoke and brightly lit. We are sure you wouldn’t want it next door to your property nor the property of your mother or sister, aunt or uncle, without having any of these concerns addressed. We need to know that these questions were asked and answered. Now is the time to do the due diligence necessary to ensure the public’s safety and well-being, along with the safety and economic values of our properties.

We appeal to the Borough Council and management to take this matter to heart in establishing future agendas and business. We hope that the Council will use its authority and resources to investigate all matters associated with a crematory in a residential district. These include but are not limited to: the crematories effect on property values, public health, public morale, our air quality, in particular mercury emissions, the proposed monitoring from DEP, how this will affect our waste water management systems, and the integrity of our existing residential neighborhoods. Furthermore, we earnestly hope that the Borough hires a zoning officer who will ensure that these intrinsic values established in our ordinances are fully protected.

David E Grabuloff, Jr.

 

 

Response from Travis Finkenbinder:

 

Finkenbinder Family Funeral Homes, owned and operated by the Finkenbinder Family, is a full service funeral organization operating locations in Dauphin, Lancaster and Lebanon Counties. Funeral service has changed considerably over the last few years, most specifically, the rise in demand for cremation as a method of final disposition versus traditional body burial. Due to the increase in demand, coupled with some well-publicized and documented cremation related tragedies, families are demanding this service be provided on-site and by funeral home personnel. Uncompromising the chain of custody ensures their loved one never leaves the care of the Funeral Director they know and trust, and it allows them to participate in and witness the cremation ceremony in comfort and privacy. Our newly remolded state of the art facilities, pricing, licensed staff, and services offered, are second to none in the greater Middletown Area.

We are committed to conforming with all rules, laws and regulations as we install and implement this demanded service at our North Union Street funeral home. We have selected as our equipment supplier, Matthews Cremation, which is part of Matthews International, a 150+ year old company headquartered in Pittsburgh, PA. Matthews Cremation has dozens of cremation systems in Pennsylvania, several in Dauphin County, all of which have been approved by the Pennsylvania Department of Environmental Protection (PA DEP). The unit we propose to install exceeds the design and performance standards of PA DEP, which are the most stringent in the United States. A comprehensive application with supporting documentation has been submitted to PA DEP and is currently under technical review. We are actively working with PA DEP to provide additional information and clarification as recently requested.