09/24/2015

Right To Burial On Private Property Affirmed

By: T. Scott Gilligan, OFDA General Counsel

Right To Burial On Private Property Affirmed

Several townships in Ashtabula County were looking to restrict the rights of Ohio property owners to bury the remains of deceased family members on their private property. As we have discussed in previous articles, there is no state law that prohibits a family from interring the body of a relative on private property. Therefore, these townships, concerned about the practice, looked for ways to prohibit it within their borders. They sought the opinion of the Ohio Attorney General on methods they could utilize to stop the interment of human remains on private property within township limits.

The first argument the townships presented was to claim the interment of the remains of only one person did not fit into the statutory exemption for a "family cemetery." Section 4767.02(A) of the Ohio Revised Code prohibits a person from owning or operating a cemetery unless it is an exempt "family cemetery" or it is registered with the Ohio Department of Commerce. One of the requirements of registration is to have an endowment fund of at least $50,000. Obviously, this requirement would dissuade most private land owners from establishing a cemetery on their property unless they can claim the family cemetery exemption. Therefore, the townships argued the interment of just one person did not qualify property as a "family cemetery," and therefore, registration with the Ohio Department of Commerce would be required.

In an opinion issued last year, the Attorney General rejected that claim. Although Section 4767.02(C) defines a "family cemetery" as one "containing the remains of persons, at least three-fourths of whom have a common ancestor or who are the spouse or adopted spouse of a child of a common ancestor," the Attorney General opined a family cemetery can consist of the remains of only one person. If the remains of only one person are interred, the Attorney General found the definition of a family cemetery is met because in that case 100% of the interred remains in the cemetery would share a common ancestor. Since that is above the threshold of 75%, the statutory definition is fulfilled.

The next argument presented by the townships was the townships have the authority to adopt laws that prohibit the burial of human remains on private property. In examining this argument, the Attorney General differentiated the powers of a municipal corporation from an unincorporated township. It was noted in Title 7 of the Ohio Revised Code, Section 759.05 specifically authorizes municipalities to prohibit the interment of the dead within municipal corporation limits.

Unlike Title 7 which contained a specific authorization for municipal corporations to ban interments, Title 5, which spells out the powers of townships, does not contain a similar provision. Therefore, the Attorney General concluded township trustees do not have the authority to prohibit the burial of human remains on private property within the unincorporated areas of the township. The Attorney General specifically found that while the General Assembly had conferred upon municipal corporations the power to prohibit burials, it did not give the same authority to townships.

The final argument presented by the township was the local Board of Health would have authority to adopt regulations prohibiting the burial of human remains on private property. Again, the Attorney General rejected this claim because it could find no provision in the Ohio Revised Code to indicate the General Assembly intended to vest local Boards of Health with the authority to prohibit the interment of human remains on private property. While the Ohio Department of Health has the authority to make orders and rules governing the receipt and conveyance of human remains, local Boards of Health are not given any authority in that regard. Therefore, the Attorney General expressed its opinion that a local Board of Health has no authority to adopt a regulation which prohibits the burial of a deceased family member on privately-owned property of a family member.

The Attorney General's opinion affirms OFDA's long-standing advice to its members that property owners have the right to inter remains of family members on private property located outside of a municipal corporation. If burial is to be within an incorporated area of a municipality, the family should check with the city solicitor and local zoning authorities to see if interment is permissible.

Even in areas where interment is permitted on private property, it is important for funeral directors to advise family members that burial may impact market value and/or the ability to sell the property in the future. As rural areas around cities are developed into residential suburbs, the developers are often faced with the need to disinter bodies in family cemeteries and reinter them in established cemeteries. Obviously, the time and expense of carrying out this process lessens the value of the property for development. Family members should be aware of this potential drawback when weighing the pros and cons of developing a family cemetery on private property.

OFDA members with questions regarding this article may contact Scott Gilligan at 513-871-6332.