What You are Dying to Know

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1 OHIO TOWNSHIP CEMETERY LAW What You are Dying to Know Brian M. Zets, Esq. Isaac Wiles Burkholder & Teetor, LLC Two Miranova Place, Suite 700 Columbus, Ohio Phone: Fax:

2 Legal Issues Surrounding Cemeteries A state may regulate the location of cemeteries through the exercise of its police power by statute directly regulating the location of cemeteries. Laurel Hill Cemetery v. San Francisco, 216 US 358 (1910). Such police power may be delegated to and exercised by political subdivisions or subordinate public corporations of the state, including municipal corporations or health authorities. HOW TO FUND THE CEMETERY Levy & Taxes for Expenses (R.C ) To defray the expenses of the purchase or appropriation, and the enclosing, care, supervision, repair, and improving of lands for cemetery purposes, and of maintaining and improving entombments, including mausoleums, columbariums, and other interment rights, the board of township trustees may levy a tax sufficient for that purpose. 2

3 HOW TO FUND THE CEMETERY Levy for Buildings (R.C ) Where the township owns a burial place within the grounds of a cemetery association, the board of township trustees may levy a tax, not exceeding five mills on the dollar of the tax duplicate of the township, for the purpose of erecting permanent buildings upon such cemetery grounds. In anticipation of such tax, the officers of such cemetery association may issue and sell bonds, to bear interest at a rate not to exceed the rate provided in R.C. Section HOW TO FUND THE CEMETERY Endowment Fund (R.C ) A board of township trustees may create a permanent cemetery endowment fund for the purpose of maintaining, improving, and beautifying township cemeteries and burial lots in township cemeteries. The fund shall consist of money arising from the following sources: A. Gifts, devises, or bequests received for the purpose of maintaining, improving, or beautifying township cemeteries; B. Charges added to the price regularly charged for burial lots for the purpose of maintaining, improving, or beautifying township cemeteries; C. Contributions of money from the township general fund; D. An individual agreement with the purchaser of a burial lot providing that a part of the purchase price is to be applied to the purpose of maintaining, improving, or beautifying any burial lot designated and named by the purchaser; E. Individual gifts, devises, or bequests made for the maintenance, improvement, and beautification of any burial lot designated and named by the person making the gift, devise, or bequest. Upon unanimous consent of the board of trustees, the board may use the principal of the fund if the board is unable to maintain, improve, and beautify township cemeteries using only the income from the fund. 3

4 HOW TO FUND THE CEMETERY R.C (Expenditure of Proceeds Exception) provides: The proceeds arising from the sale of cemetery lots under R.C. Section shall be used in maintaining, improving, beautifying, and embellishing such grounds, and for maintaining and improving entombments, including mausoleums, columbariums, and other interment rights, except that upon unanimous consent of the board of township trustees, such proceeds may be used in the purchase or appropriation of additional land for cemetery purposes in accordance with R.C. Sections and ; and the board of township trustees may build and maintain proper and secure fences around all such cemeteries, to be paid for from the township funds. HOW TO FUND THE CEMETERY Additions to Cemetery Grounds (R.C ) In any township in which there is a cemetery owned or partly owned by such township, if in the opinion of the board of township trustees, it is desirable to add to the area of such cemetery by the purchase of additional grounds, and if suitable lands cannot be procured by contract on reasonable terms, the board may appropriate lands, not exceeding ten acres, by proceedings in accordance with R.C. Sections to , for the expansion of an existing cemetery if the township zoning ordinances do not prohibit such use. Lands appropriated for the expansion of a cemetery shall not be appropriated within fifty feet of a dwelling house or other building and shall be considered a part of the original cemetery even though separated therefrom by a road or highway. For such purpose the board may expend funds as provided in R.C. Section , or the board may levy a tax, not to exceed one-half of one mill, on the taxable property of the township, for a period not to exceed five years, which tax shall be collected as other taxes, and appropriated for the purchase or appropriation of such additional cemetery grounds which shall become part of the township cemetery. 4

5 HOW TO MAINTAIN THE CEMETERY Mowing (R.C ) The board of township trustees shall have the cemetery laid out in lots, avenues, and paths, shall number the lots, and shall have a suitable plat of the lots made, which plat shall be carefully kept by the township fiscal officer. The board shall make and enforce all needful rules and regulations for the division of the cemetery into lots, for the allotment of lots to families or individuals, and for the care, supervision, and improvement of the lots. The board also may make and enforce all needful rules and regulations for burial, interment, reinterment, or disinterment. The board shall require the grass and weeds in the cemetery to be cut and destroyed at least twice each year. Suitable provision shall be made in the cemetery for persons whose burial is at the expense of the township. HOW TO MAINTAIN THE CEMETERY General Care (R.C ) The board of township trustees shall provide for the protection and preservation of cemeteries under its jurisdiction, and shall prohibit interments therein when new grounds have been procured for township cemeteries or burial grounds. Where such old cemeteries are in or near village plats, and the public health is liable to be injured by further interments therein, the board shall institute suits to recover possession thereof, remove trespassers therefrom, and may recover damages for injuries thereto or any part thereof, or to any fence or hedge enclosing them, or to any tomb or monument therein. The board may enclose cemeteries under its jurisdiction with a substantial fence or hedge, and shall keep any such fence or hedge in good repair. It may re-erect any fallen tombstones, regardless of the cause of the falling, in such cemeteries. The board, as it considers necessary, may purchase, maintain, and improve entombments, including mausoleums, columbariums, and other interment rights. The board may levy a tax to meet any costs incurred for these purposes, not to exceed one-half mill in any one year, upon all the taxable property of the township. 5

6 HOW TO SELL CEMETERY LOTS R.C provides: Upon application, the board of township trustees shall sell at a reasonable price the number of lots as public wants demand for burial purposes. Purchasers of lots or other interment rights, upon complying with the terms of sale, may receive deeds for the lots or rights which the board shall execute and which shall be recorded by the township fiscal officer in a book for that purpose. The expense of recording shall be paid by the person receiving the deed. Upon the application of a head of a family living in the township, the board shall, without charge, make and deliver to the applicant a deed for a suitable lot or right for the interment of the applicant's family, if, in the opinion of the board and by reason of the circumstances of the family, the payment would be oppressive. (Rev. 2016) HOW TO RE-ENTER UNUSED CEMETERY LOTS R.C provides: The board of township trustees may reenter a lot for which the terms of sale or deed was executed prior to July 24, 1986, or an entombment, including a mausoleum, columbarium, or other interment right for which the terms of sale or deed was executed prior to September 29, 2015, if the board determines the lot or right is unused and adopts a resolution creating a procedure for right of reentry in accordance with this section. The resolution shall state that the board of township trustees has the right of reentry to the cemetery lot or right purchased prior to July 24, 1986, or prior to September 29, Before reentering a lot or right, the board shall send a notice by certified mail to the last known owner at the owner's last known address to inform the owner that the owner's interest in the lot or right will cease unless the owner or owner's heir responds by a specified date. If the owner's address is unknown and cannot be obtained reasonably, it is sufficient to publish the notice once in a newspaper of general circulation in the county. To establish reentry, the board shall pass a resolution stating that the owner has not responded by the specified date, and that the board reclaims its interest in the lot or right. 6

7 HOW TO RE-ENTER UNUSED CEMETERY LOTS At least ninety days prior to the termination date for use of the cemetery lot, tomb, including a mausoleum, or columbarium, the board shall send a notice to the owner to inform the owner that the owner's interest in the lot or right will cease on the termination date unless the owner or owner's heir contracts for renewal by that date. The board shall send the notice by certified mail to the owner if the owner is a resident of the township or is a nonresident whose address is known. If the owner's address is unknown and cannot reasonably be obtained, it is sufficient to publish the notice once in a newspaper of general circulation in the county. In order to establish reentry, the board shall pass a resolution stating that because of the lack of response to notice sent by certified mail that provided a termination date, the board reclaims its interest in the lot or right. (Rev. 2016) HOW TO BURY THE INDIGENT Burial or cremation of body at expense of township or municipal corporation (R.C. 9.15) Where was the deceased a resident? When the body of a dead person is found in a township or municipal corporation, and such person was not an inmate of a correctional, benevolent, or charitable institution of this state, and the body is not claimed by any person for private interment or cremation at the person's own expense, or delivered for the purpose of medical or surgical study or dissection in accordance with R.C. Section , it shall be disposed of as follows: A. If the person was a legal resident of the county, the proper officers of the township or municipal corporation in which the person's body was found shall cause it to be buried or cremated at the expense of the township or municipal corporation in which the person had a legal residence at the time of death. B. If the person had a legal residence in any other county of the state at the time of death, the superintendent of the county home of the county in which such body was found shall cause it to be buried or cremated at the expense of the township or municipal corporation in which the person had a legal residence at the time of death. C. If the person was an inmate of a correctional institution of the county or a patient or resident of a benevolent institution of the county, the person had no legal residence in the state, or the person's legal residence is unknown, the superintendent shall cause the person to be buried or cremated at the expense of the county. 7

8 HOW TO BURY THE INDIGENT Burial or Cremation? Such officials shall provide, at the grave of the person or, if the person's cremated remains are buried, at the grave of the person's cremated remains, a metal, stone, or concrete marker on which the person's name and age, if known, and date of death shall be inscribed. HOW TO BURY THE INDIGENT Who is indigent? **A political subdivision is not relieved of its duty to bury or cremate a person at its expense when the body is claimed by an indigent person. A person whose income does not exceed one hundred fifty per cent of the federal poverty line. 8

9 HOW TO MOVE SOMEONE (DISINTERMENT) General Rules (R.C ) The board of township trustees, the trustees or directors of a cemetery association, or the other officers having control and management of a cemetery or the officer of a municipal corporation who has control and management of a municipal cemetery shall disinter or grant permission to disinter any remains buried in the cemetery in either of the following circumstances: 1. If the surviving spouse of the decedent is eighteen years of age or older, within thirty days after the filing of an application of the surviving spouse made in accordance with division (A) of R.C. Section and payment by the applicant of the reasonable costs and expense of disinterment; 2. On order of a probate court issued under division (B) of R.C. Section and payment by the person who applied for the order under that division of the reasonable costs and expense of disinterment. HOW TO MOVE SOMEONE (DISINTERMENT) Form of Application (R.C ) A. An application by a surviving spouse for disinterment under R.C. Section shall be in writing and shall state that the applicant is the surviving spouse of the decedent, that the applicant is eighteen years of age or older and of sound mind, the disease of which the decedent died, and the place at which the remains shall be reinterred. The application shall be subscribed and verified by oath. 9

10 Form of Application (R.C ) cont d: B. 1. A person who is eighteen years of age or older and of sound mind and who is not the surviving spouse of the decedent involved may obtain a court order under this division for the disinterment of the remains of the decedent. Any person who is eighteen years of age or older and of sound mind, including, but not limited to, the person who assumed financial responsibility for the funeral and burial expenses of the decedent, and who wishes to obtain a court order for the disinterment of the remains of the decedent may file an application in the probate court of the county in which the decedent is buried requesting the court to issue an order for the disinterment of the remains of the decedent. The application shall be in writing, subscribed and verified by oath, and include all of the following: a) If applicable, a statement that the applicant assumed financial responsibility for the funeral and burial expenses of the decedent; Form of Application (R.C ) cont d: b) If division (B)(1)(a) of this section is inapplicable relative to the applicant, a statement that the applicant did not assume financial responsibility for the funeral and burial expenses of the decedent; c) A statement that the applicant is eighteen years of age or older and of sound mind; d) The relationship of the applicant to the decedent; e) A statement of the place at which the remains will be reinterred; f) The name, the relationship to the decedent, and the address of the decedent's surviving spouse, of all persons who would have been entitled to inherit from the decedent under R.C. Chapter 2105 if the decedent had died intestate, and, if the decedent had a will, of all legatees and devisees named in the decedent's will. 10

11 HOW TO MOVE SOMEONE (DISINTERMENT) Writ of Mandamus (R.C ) If the board of township trustees, the trustees or board of a cemetery association, or the other officers in charge of a cemetery refuse to disinter or grant permission for disinterment after a surviving spouse makes application underr.c.sections and , the probate court of the county in which the decedent is buried shall issue a writ of mandamus requiring the officers to disinter the remains or to grant permission for their disinterment. HOW TO CREATE CEMETERY RULES 11

12 Regulating Hours (R.C ) The board of township trustees may make rules specifying the times when cemeteries under its control shall be closed to the public. The board shall cause the rules to be published once a week for two consecutive weeks in a newspaper of general circulation within the township or as provided in R.C. Section 7.16, and may post appropriate notice in the township as considered necessary. Thepurposesofsuchrulesshallbetoassureareasonabletimeofaccesstothe cemeteries in view of the differences in attendance anticipated from past experience as to each, to exclude attendance at times when no proper purposes could normally be expected, to permit exceptions to the normal hours of access on reasonable request with adequate reason provided, and to facilitate the task of protecting the premises from vandalism, desecration, and other improper usage. HOW TO CREATE CEMETERY RULES Platting (R.C ) The board of township trustees shall have the cemetery laid out in lots, avenues, and paths, shall number the lots, and shall have a suitable plat of the lots made, which plat shall be carefully kept by the township fiscal officer. The board shall make and enforce all needful rules and regulations for the division of the cemetery into lots, for the allotment of lots to families or individuals, and for the care, supervision, and improvement of the lots. The board also may make and enforce all needful rules and regulations for burial, interment, reinterment, or disinterment. The board shall require the grass and weeds in the cemetery to be cut and destroyed at least twice each year. Suitable provision shall be made in the cemetery for persons whose burial is at the expense of the township. 12

13 QUESTIONS? THANK YOU 13