Judges: JAMES D. \"BUDDY\" CALDWELL, Attorney General
Filed Date: 12/17/2010
Status: Precedential
Modified Date: 7/5/2016
Dear Ms. Zeringue:
You have requested an opinion from this Office regarding what Louisiana law allows as a proper "cemetery use" of dedicated cemetery property under La.R.S.
The Federal Emergency Management Agency (FEMA) proposes to provide funding from the Public Assistance Program under the . . . [Stafford Act] (
The Attorney General responded to FEMA's earlier request for advice on the treatment of the property on March 18, 2010.1 At that time you informed us that the demolition and removal of the current structure, the Thomy Lafon School, did not require a removal of the cemetery dedication under the dedication provisions and that there is no need to seek a judicial dededication of the cemetery property when the nonconforming use is removed.
It is within this factual framework that you present this Office with three specific questions related to possible future uses of the Thomy Lafon School site and structures ("Lafon School") and whether such uses would conform with the dedication provisions. Those questions are: *Page 2
1. Can small portions of the non-conforming school structure, such as selected free-standing walls, sculpture, and planters, located on the cemetery property be left in place following the demolition of the non-conforming structure as part of a memorial display commemorating the historic cemetery and other earlier uses of the site?
2. Can a small interpretive display commemorating earlier uses of a site, including the historic cemetery, and providing information about a significant historic person indirectly associated with the site be constructed on the cemetery property?
3. Can salvaged building materials from the demolished non-conforming structure be used in the construction of the interpretive display?
Each of these specific questions is answered separately hereinbelow.
Can small portions of the non-conforming school structure, such asselected free-standing walls, sculpture, and planters, located on thecemetery property be left in place following the demolition of thenon-conforming structure as part of a memorial display commemorating thehistoric cemetery and other earlier uses of the site?
As we understand from discussions with you and your staff subsequent to the issuance of La. Atty. Gen. Op. No. 10-0018, it seems that the general course that FEMA intends to follow with regard to the future of the Lafon School property is to make that property into a green space or park. It is further our understanding that various public comments have suggested that a memorial to the school, the cemetery, and Mr. Lafon should be placed on the property following the demolition of the current structures.
Thus, keeping the above-noted plans in mind, it is clear from your question that the purpose for leaving portions of the Lafon School intact on the property would be for memorial purposes rather than for the use of the components for nonconforming purposes. It is our opinion that leaving portions of otherwise nonconforming uses intact on dedicated cemetery property for the purposes of memorialization or commemoration is consistent with the "cemetery uses" contemplated by the dedication provisions. This opinion is based upon the customary historical uses of cemetery property.2 *Page 3
Cemetery property, especially during the nineteenth century, was intended to be a place for leisure, contemplation, and commemoration.3
In fact, it was not unusual to see many significant cemeteries in the United States serving a dual purpose in the nineteenth and twentieth centuries of burial ground and park.4 Because we see no difference between those historic uses and the proposed reason for leaving behind some components of the existing nonconforming uses, we are of the opinion that this scenario would be consistent with La.R.S.
Can a small interpretive display commemorating earlier uses ofa site, including the historic cemetery, and providing informationabout a significant historic person indirectly associated with thesite be constructed on the cemetery property?
As with the scenario above and for the same reasons, it is our opinion that such a use would be consistent with the dedication provisions in La.R.S.
However, should the construction of such a display require any amount of ground disturbance in a known cemetery, such activities would trigger the Louisiana Unmarked Human Burial Sites Preservation Act5 ("the Unmarked Burials Act") and would require adherence with that law to ensure the protection of any human remains, burial artifacts, and the burial site generally.6 The Unmarked Burials Act is not triggered if the commemorative display is constructed on already-existing foundations from the preexisting structures (i.e., constructing the displays in such a way as to avoid any new adverse impacts to the cemetery).
Can salvaged building materials from the demolished non-conformingstructure be used in the construction of the interpretive display?
This question is not directly related to the application of Louisiana cemetery law to FEMA's plans for the Lafon School site, with one caveat: It is our opinion that no building materials from existing "cemetery spaces"7 can be reused in the construction of the interpretive display absent compliance with the Unmarked *Page 4
Burials Act as well as La.R.S.
The remainder of the answer to your question is one of Louisiana property law. From a cemetery law standpoint, aside from the caveat noted above, there is no limitation on the source of the materials for commemorative displays. Whether materials from the existing structure may be reused depends on who owns these materials and whether that owner consents to the use of the materials.
Based upon conversations with you and your staff, it is our understanding that the Lafon School property is owned in fee title by the Orleans Parish School Board ("OPSB"). The assets of the OPSB, while retained in fee, are currently managed by the Recovery School District ("RSD"). Because the materials of the Lafon School are currently component parts of the immovable property owned by the OPSB, under La.C.C. Art.
We hope this sufficiently answers your inquiry; however, if we may be of further assistance please do not hesitate to contact our office.
Sincerely yours,
JAMES D. "BUDDY" CALDWELL ATTORNEY GENERAL
By: ___________________
RYAN M. SEIDEMANN
Assistant Attorney General