Judges: JAMES D. \"BUDDY\" CALDWELL, Attorney General
Filed Date: 12/10/2010
Status: Precedential
Modified Date: 4/17/2021
Dear Ms. Zeringue:
You have requested an opinion from this Office related to the interactions among the general Louisiana cemetery law (La.R.S.
[FEMA] may provide funding for undertakings that are located on or in an area of an unmarked human burial or burials that will be funded by the 404 Program of the Hazard Mitigation Grant Program (HMGP) under the . . . [Stafford Act]. These undertakings are likely to occur on privately-owned, residential property.
In light of the general requirements that FEMA is bound to follow, in many cases, the applicable laws of the State in which it is operating, you have asked the following eight questions about Louisiana's cemetery laws.
1. FEMA anticipates that it will be asked to fund the repair or construction of facilities that do not conform to cemetery uses and are located on a property containing a known family burial plot or an unmarked human burial. What is a reasonable way to determine the "immediate area where one or more human skeletal remains are found" as provided in La.R.S.
2. Is a property owner required to seek removal of dedication for a portion of a property pursuant to La.R.S.
3. FEMA requires its applicants and subgrantees to conform to all federal and State laws. FEMA anticipates that it will receive requests for the reimbursements of the costs associated with the post-Katrina/Rita reconstruction of facilities on private property that do not conform to cemetery uses that will be sited on or near their pre-Katrina locations and are in the immediate area of known unmarked human burials. Is there an exception in the Cemetery Act that allows for the reconstruction of damaged nonconforming facilities on private property in the immediate area of a cemetery property?
4. Is the use of a facility constructed before the passage of the Cemetery Law in 1974 on a property that was once used as a cemetery "grandfathered" if the facility has continually remained in service, except for the few months immediately following Hurricanes Katrina and Rita? Would the facility be treated differently if it was constructed after the passage of the Cemetery Law? Can the use of a "grandfathered" facility be changed? Can such a facility be expanded? Would an expansion be acceptable if it does not require ground disturbance? What steps, if any, must FEMA require an applicant to take in order to ensure that the "grandfather" exception applied before FEMA approves funds for repair or expansion?
5. Can a FEMA applicant complete the construction or repair of a facility following the discovery of unmarked burial sites, human skeletal remains, or burial artifacts during construction if the provisions of the Unmarked Human Burial Sites Preservation Act are met and it is feasible to restore the burial site and avoid further disturbance of the human skeletal remains or burial artifacts, or is it necessary to first remove all human skeletal remains and request removal of the cemetery dedication through a court of competent jurisdiction prior to completing the project?
6. Do the provisions of the Cemetery Law apply if the remains of Hurricanes Katrina and Rita victims are discovered in the debris of a destroyed facility during the reconstruction or repair of the facility?
7. Who has jurisdiction over human skeletal remains from an unmarked burial site if they are less than fifty years old and are not the subject of a criminal investigation or legal inquiry? *Page 3
8. Do the provisions of the Cemetery Law, such as the cemetery dedication, apply to a property if discovered buried human skeletal remains are removed from the property by the local law enforcement agency and will be treated as a criminal investigation or legal inquiry by the coroner?
Because each one of the above questions requires the analysis of disparate Louisiana laws and because the answers to each question are not necessarily dependant on the answers to any other question, they are each considered separately below.
1. What is a reasonable way to determine the "immediate area where oneor more human skeletal remains are found" as provided in La.R.S.
This office is aware of no specific legal guidance to determining the "immediate area" around human burials under La.R.S.
If, however, burials are anticipated to be impacted by any current or proposed activities, compliance with both the Unmarked Burials Act (i.e., submitting to the permitting process set forth therein) and the cemetery dedication provisions of La.R.S.
There is no clear legal requirement for such a removal under Louisiana law with one possible exception. In cases where the property in question has been legally recorded, either under La.R.S.
Although, beyond the one above-noted exception concerning recordation, there is no legal requirement to remove a cemetery dedication in the clear absence of human burials, in an abundance of caution and to ensure that the subject property has clear title — free from any defects that may result from an erroneous classification of the property as cemetery property — we recommend that, when faced with an unrecorded cemetery or a known unmarked human burial, La.R.S.
For the purposes of this question, it is our opinion that activities in the "immediate area" of cemetery property are controlled by our answer to Question 1 related to buffers. For all dedicated cemeteries under La.R.S.
4.a. Is the use of a facility constructed before the passage of theCemetery Law in 1974 on a property that was once used as a cemetery"grandfathered" if the facility has continually remained in service,except for the few months immediately following Hurricanes Katrina andRita?
In a footnote in La. Atty. Gen. Op. No. 10-0018, we stated the following:
It is also important to point out that, although the dedication of property to cemetery uses is an ancient legal concept, there have been, over time, many violations of this concept. However, nonconforming uses of cemetery property that predate the codification of this concept by the Louisiana Legislature in 1974 are likely "grandfathered" into compliance with current Louisiana law. In other words, notwithstanding any other law to the contrary, constructions on dedicated cemetery property pre-1974 are likely not violations of the law.
It is important to note that this statement was not part of the substantive opinion of this Office in La. Atty. Gen. Op. No. 10-0018. Rather it was simply dicta that was tangentially related to the substantive questions at issue therein. Now that the substance of that footnote has been presented as a formal question to this *Page 7 Office through the current opinion request, we must modify that former dicta in light of the more comprehensive analysis contained, infra.
It is our opinion that there is no "grandfathering" contemplated under Louisiana law allowing a nonconforming use to be considered as a conforming use merely because it predated the codification of the dedication provisions in 1974. In other words, because we are of the opinion that there is no exception to the dedication provisions and because the dedication provisions existed as binding case law and custom prior to 1974, we conclude that nonconforming uses cannot be "grandfathered" into conformance.14
We acknowledge the scenario with regard to currently existing nonconforming uses. If a nonconforming use was constructed, innocently or not, on dedicated cemetery property, it is a violation of La.R.S. 304-306 and the antecedents to those laws. However, if the nonconforming use is a permanent or semi-permanent structure, it may now be virtually impossible to remove the nonconforming use (especially if that nonconforming use is still in use). In addition, in many cases (especially those cases where there is no record of the existence of a cemetery or burial), the construction of a nonconforming use may have obliterated any evidence of the existence of a cemetery on the property.15 These realities create obvious enforcement problems, making the removal of nonconforming uses under many circumstances virtually impossible.
However, when, as in the situations presented by your opinion, the nonconforming uses have ceased and must undergo reconstruction to be fit for any future use, it is easier to enforce the law and remove the nonconforming use. In other words, when it is known or likely that a cemetery or human burials have been subject to a nonconforming use, such nonconforming use should be removed, if practicable, subject to the applicable requirements of the Unmarked Burials Act.16 *Page 8 4.b. Would the facility be treated differently if it was constructedafter the passage of the Cemetery Law?
Because we have opined, in answer to question 4.a. of this opinion, that construction before the codification of the dedication provisions in 1974 still requires conformance with a cemetery use, it is our further opinion that a post-1974 nonconforming use would be treated no differently than one occurring prior to 1974. In both instances, the use is nonconforming and is not permissible under the law.
4.c. Can the use of a "grandfathered" facility be changed?
Because we have above opined that there is no "grandfathering" under Louisiana law for nonconforming uses of dedicated cemetery property, it is our opinion, with one caveat, that a nonconforming use cannot be changed. In our opinion, the only acceptable change in use of a nonconforming structure under the dedication provisions would be to discontinue the nonconforming use. In this regard, it is our opinion that, absent a removal of the cemetery dedication, any currently nonconforming use could be converted to a cemetery use either in the form of a mausoleum or similar structure or a structure intended to service the continued use or maintenance of the property as a cemetery.17 4.d. Can such a facility be expanded?
For any existing nonconforming facility to be expanded, it is our opinion that several requirements must be met. First, if the cemetery dedication is to be removed, compliance with both La.R.S.
Second, if the cemetery dedication is not to be removed, as noted above, the only acceptable expansion of a nonconforming use would be to create a structure that is intended to be used for "cemetery purposes" under La.R.S.
4.e. Would an expansion be acceptable if it does not require grounddisturbance?
The answer to this question hinges on a distinction between the dedication provisions of La.R.S.
4.f. What steps, if any, must FEMA require an applicant to takein order to ensure that the "grandfather" exception applied beforeFEMA approves funds for repair or expansion?
Based upon our previously-stated opinions herein, this question is moot. Because there is no "grandfather" exception to the dedication provisions under La.R.S.
5. Can a FEMA applicant complete the construction or repair of afacility following the discovery of unmarked burial sites, human skeletalremains, or burial artifacts during construction if the provisions of theUnmarked Human Burial Sites Preservation Act are met and it is feasibleto restore the burial site and avoid further disturbance of the humanskeletal remains or burial artifacts, or is it necessary to first removeall human skeletal remains and request removal of the cemetery dedicationthrough a court of competent jurisdiction prior to completing theproject? *Page 10
In response to this question, we refer you to La. Atty. Gen. Op. No. 10-0234 (footnotes included, but renumbered from original opinion), in which we have opined as follows:
[O]nce human remains have been interred in a piece of property, that property is forever dedicated as a cemetery.19 In addition, such property cannot be put to any use other than a "cemetery use" unless and until any and all human remains have been removed from the property and a court of competent jurisdiction issues an order removing the dedication.20
Accordingly, it is our opinion that compliance with the Unmarked Burials Act alone does not obviate the need to remove the cemetery dedication on a particular piece of property. Compliance with the Unmarked Burials Act, pursuant to a properly-issued permit, ensures, from a scientific/archaeological perspective, that the archaeological resources represented by the human remains, burial artifacts, and burial sites are protected and/or properly analyzed and removed. In some instances, this may amount to leaving human remains in the ground when avoidance of disturbance is the appropriate course of action according to the Division.21 However, it is our opinion that, because the dedication provisions are absolute, the cemetery or burial in question would either have to be avoided or removed and a court of competent jurisdiction would have to issue a judgment pursuant to La.R.S.
6. Do the provisions of the Cemetery Law apply if the remains ofHurricanes Katrina and Rita victims are discovered in the debris of adestroyed facility during the reconstruction or repair of the facility?
It is our opinion that the laws that are the subject of this opinion request, namely the dedication provisions and the Unmarked Burials Act, are not implicated when *Page 11 the remains of modern disaster victims are encountered during reconstruction or debris operations. These provisions of Louisiana law contemplate the intentional interment, inurnment, or placement of human remains for the purposes of final disposition.22 The scenario contemplated by this question, in our opinion, is more analogous to a crime scene situation (which is discussed more fully, infra) and should be dealt with accordingly.23 7. Who has jurisdiction over human skeletal remains from an unmarkedburial site if they are less than fifty years old and are not the subjectof a criminal investigation or legal inquiry?
It is apparent from the wording of this question that you are referring to the following language from the Unmarked Burials Act, specifically La.R.S.
C. Each law enforcement agency that receives notice of an unmarked burial site or human skeletal remains shall immediately notify the coroner of the parish where the site or remains are found. The law enforcement agency shall also notify the secretary through the division of archaeology within two business days of any discovery unless circumstances indicate that the death or burial is less than fifty years old or that there is need for a criminal investigation or legal inquiry by the coroner.
D. If the coroner finds that the unmarked burial site is over fifty years old and that there is no need for a legal inquiry by his office or for a criminal investigation, the secretary shall have jurisdiction of the site, human skeletal remains, and the burial artifacts.
These portions of the Unmarked Burials Act set the threshold age of a burial for coverage by the jurisdiction of the Division at fifty years or older.24 In the event that an unmarked burial is determined not to be fifty years old and it is also determined that there is no "need for a criminal investigation or legal inquiry by the coroner,"25 it is our opinion that such remains must be handled in accordance with the general provisions of La.R.S.
A. (1) Upon completion of an autopsy or completion of the coroner's investigation, if the investigation reveals that an autopsy is not required, the coroner shall release the body to the family or friends for burial.27
(2) The coroner shall arrange for the burial of paupers, preferably by a Louisiana licensed funeral home. The burial expenses shall not exceed the actual cost of the service, and shall be paid by the parish or municipality in which the death occurred. . . . The state or any municipality or parish may establish a maximum amount which it shall pay for individual burial expenses.28
Thus, in answer to your question, it is the opinion of this Office that, should human skeletal remains be identified that are less than fifty years in age, 29 such *Page 13
remains are not within the ambit of the Division and the Unmarked Burials Act. Rather, they are under the jurisdiction of the local coroner who has the duty to either dispose of those remains pursuant to La.R.S.
The law does not speak directly to this question. However, it is clear from an in pari materia reading of the law related to cemetery dedication and the Unmarked Burials Act that the Legislature did not intend for crime scenes in Louisiana to inadvertently become dedicated cemetery property.
As noted above, the basic idea of cemetery dedication derives from La.R.S.
• We are aware of no specific legal guidance to determining what constitutes the "immediate area" around human burials under La.R.S.
• There is no legal requirement to remove a cemetery dedication from an area that does not actually contain human remains, with the following qualification: If the subject area has been included in a recorded cemetery or otherwise shown to be within a cemetery area on historic or modern documents or maps, even if no human remains are actually present, La.R.S.
• There is no exception in Louisiana law to allow for the reconstruction of a nonconforming use on dedicated cemetery property. If such a use exists, once the nonconforming use is no longer used or usable for its originally intended purpose, compliance with La.R.S. 304-306 is mandatory before any reconstruction can begin.
• Because there is no exception to the dedication provisions (La.R.S.
• A nonconforming use constructed subsequent to the Cemetery Act in 1974 would be treated no differently than one constructed before 1974. *Page 15
• The only acceptable change in use of a nonconforming structure under the dedication provisions would be a change that brings the new use into compliance with the dedication provisions, which would be a use for "cemetery purposes" under La.R.S.
• A nonconforming use may only be expanded by a removal of the cemetery dedication and, if applicable, compliance with the Unmarked Burials
Act.
• Compliance with the Unmarked Burials Act alone does not obviate the need to remove the cemetery dedication on a particular piece of property.
• The dedication provisions and the Unmarked Burials Act are not implicated when the remains of modern disaster victims are encountered during reconstruction or debris operations.
• Human skeletal remains that are less than fifty years in age are not subject to the jurisdiction of the Division of Archaeology or the Unmarked Burials Act. Such remains are within the jurisdiction of the local coroner who has the duty to dispose of those remains pursuant to La.R.S.
• The Legislature did not intend for crime scenes to inadvertently become classified as dedicated cemetery property simply by virtue of the discovery of human remains.
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 GANERAL
By:___________________ RYAN M. SEIDEMANN Assistant Attorney General
JDC/RMS/tp
§ 304. Permanency of dedication
A. After property is dedicated to cemetery purposes pursuant to this Chapter, neither the dedication nor the title of a plot owner shall be affected by the dissolution of the cemetery authority, by nonuse on its part, by alienation of the property, or otherwise, except as provided in this Title.
Dedication to cemetery purposes pursuant to this title is not invalid as violating any laws against perpetuities or the suspension of the power of alienation of title to or use of property but is expressly permitted and shall be deemed to be in respect for the dead, a provision for the interment of human remains, and a duty to and for the benefit of the general public.
§ 306. Removal of dedication; procedure
Property dedicated to cemetery purposes shall be held and used exclusively for cemetery purposes unless and until the dedication is removed from all or any part of it by judgment of the district court of the parish in which the property is situated in a proceeding brought by the cemetery authority for that purpose and upon notice of hearing to the board and by publication as hereinafter provided, and proof satisfactory to the court: (1) That no interments were made in or that all interments have been removed from that portion of the property from which dedication is sought to be removed; and (2) That the portion of the property from which dedication is sought to be removed is not being used for interment of human remains.
An official act of dedication of cemetery property shall be filed with the clerk of the district court for the parish in which the cemetery is located and with the Louisiana Cemetery Board. These requirements shall not apply to individual cemetery spaces within dedicated cemetery property. The provisions of this Subsection shall apply only to a cemetery established after June 21, 2008.
§ 655. Right of disposing of remains
A. The right to control interment, as defined in R.S.
(1) The surviving spouse, if no petition for divorce has been filed by either spouse prior to the death of the decedent spouse.
(2) A majority of the surviving adult children of the decedent, not including grandchildren or other more remote descendants.
(3) The surviving parents of the decedent.
(4) A majority of the surviving adult brothers and sisters of the decedent.
(5) A majority of the adult persons respectively in the next degrees of kindred as established in Civil Code Article
B. In the event that the decedent has made multiple declarations of interment, the last declaration shall control.