Shedding Light on Cemetery Zoning Regulations
Zoning laws are regulations that govern how land can be used in a particular area. These laws can dictate the types of construction allowed, the density of population, the height of buildings, and other elements of land development. In the context of cemeteries, zoning laws can have a significant impact on their establishment and operation. They determine where cemeteries are permitted, what types of facilities can be included, and under what conditions they may be expanded or modified.
Why are cemetery zoning laws equivalent to the Golden Rule? Zoning regulations for cemeteries are often specific to the local community. They can vary by municipality and can be deeply rooted in the historical, cultural, and spatial context of the area. For example, in some communities, cemeteries have served as prominent landmarks or historical sites for hundreds of years. As a result, their location is not automatically protected as historic locations are; but rather, their cemetery designation from the municipality or county supersedes most other land use considerations. In another community, perhaps where cemetery land use is at a premium, zoning laws may be constructed explicitly to ensure no encroachment occurs on neighboring land areas. The location of the cemetery, as well as its size and facilities, is the genesis of many common zoning laws regarding cemeteries.
For all cemetery operators, the key principle governing cemetery zoning is how it comes into play in the development, establishment, and operation of cemeteries. Regardless of those specifics, the utility of cemetery zoning regulations to local governmental bodies remains the same: cemetery parcels do not provide any short-term, short-money tax revenue . By making more meaningful use of the property through "residential" properties and others that are easier to tax, the municipality perceives some short-term revenue. However, because cemeteries are established as non-profit charities, these properties are likely to "sit" for an extensive period of time before the land is developed through sales to a grave owner. Further, for those who do choose to pre-purchase graves (typically through a Property Purchase Agreement), the money is deposited into a State-approved "perpetual care endowment" fund, the dividends of which are expended to perform minor cemetery maintenance at the time of burial. The endowment is not spent to establish or maintain the cemetery grounds, nor can the land "owner" who sells the graves therefore take on the costs of the maintenance of those grounds. Over time, when the land in a cemetery is finally developed through burial, there may be local tax revenue generated; however, those revenues are only due to the inventoried value of the burial plot, and/or the improvements made by the cemetery "operator." Since burial real estate is intended to be purchased and remain preserved until (and after) death, there is absolutely no immediate financial benefit to the municipality from the "long-term" cemetery property. Thus, cemeteries are viewed by municipalities similarly to parks and conservation land – as long-term, no-return, capital purchases that bite away at the limited land available for taxable uses, and have no quick payoff. Therefore, when operating your cemetery, always consider how your operations affect the local community.
Key Considerations for Cemetery Zoning
When evaluating cemetery zoning applications and proposals, relevant factors include the impact of the proposed use on surrounding property on the natural environment, and the needs of surrounding property owners and residents. When led by community organizing campaigns, concerned individual property owners will often mobilize against the proposed use and city or township action. Groups may oppose an application or an ordinance in the name of protecting health, safety, and welfare, while others may be motivated by religion and race. In turn, some municipalities will allow a proposed cemetery use with conditions that limit property use and development. Issues may include, but are not limited to, noise control, restrictions on frequency and time of burial and interment activity, screening, and retention of natural vegetation. These measures may address some of the environmental concerns and cut back on any negative impacts a facility and its operations may have on the neighbors. Municipal and township zoning boards will often not overrule or deny a cemetery zoning application based on the general impact of a cemetery use. This is in part because cemeteries are considered to be consistent with many other agricultural and commercial activities, which may be permitted within certain zoning districts.
Common Zoning Mandates for Cemeteries
Cemetery zoning requirements often vary from state-to-state and city-to-city, but there are certain typically required features of cemeteries that remain relatively consistent across the country. For example, many cemeteries are required to be built in a way that is accessible and usable for those with disabilities. Typically, though not universally, ADA compliance is therefore a requirement.
Another common requirement for cemeteries is that they must have relatively large land parcels that cannot be subdivided for other uses. For instance, some municipalities require a minimum size of 20 acres within which a cemetery is located. Subdividing a cemetery, in such an example, would disallow the use of a relative small amount of that land for other purposes.
If your neighborhood does not have a cemetery, this often means that a new one needs to be built. Some municipalities will organize charter meetings at which members of the community can discuss and debate the specifics of cemetery construction. Although those zoning and planning regulations vary, the members of the community will generally be involved in determining what changes are necessary to ensure proper oversight of cemetery development.
Cemetery Zoning Hurdles and Solutions
When it comes to cemetery development, zoning can often present hurdles that are more like hurdles on a high jump course than the 36-inch or even 42-inch jumps that are acceptable at a regular track meet. Those planning to expand their cemetery want to create a peaceful and serene resting place for future generations. However, local jurisdictional authorities must also balance that with the need to maintain minimum space requirements for commercial development and maximum population densities for residential development.
Common Zoning Concerns for Cemetery Development and Operations Most cemetery developers and operators are familiar with, at some level, the various Land Use Designations or Districts usually found in a common zoning ordinance. These general Districts include:
Some jurisdictions are lax regarding strict interpretation of their zoning rules and interpret these zoning categories flexibly. Some jurisdictions provide special exceptions that allow a cemetery developer to use ground space set aside for Commercial or Residential purposes as a cemetery.
Communities, generally, are resistant to new commercial or residential development that requires additional infrastructure, such as roads, police, fire, ambulance, and other public services. This is particularly true in rural communities that are not familiar with the need for extensive grave space acreage over time, nor with the need for other infrastructure and services associated with or traditionally provided to cemetery operations and maintenance.
Zoning and "spot" or "downzoning" as a Takings Cemetery developers and operators also should be cognizant that any "zoning" or "downzoning" of cemetery property, which diminishes the value of the property they have acquired and planned to use as a cemetery, may be a "taking" of the portion of the property so downzoned or the entire property if "downzoning" also adversely affects the proposed activities to be conducted on the property.
Cemetery operators should be alert to the possible takings issues if the local zoning office attempts to downzone a cemetery’s properly zoned property. It is important to have knowledgeable counsel review the particular zoning ordinance or regulations, and potentially file a lawsuit alleging that the dedicated—platted, plotted or otherwise designated—cemetery property cannot be downzoned without becoming a regulatory "taking" of property in violation of the 5th Amendment to the Constitution of the United States and the State Constitutions, both of which prevent the governmental taking of private property without "just compensation."
Overcoming Snohomish County’s Spot Zoning of Cemetery Property Cemetery operators attempting to develop a new cemetery in Snohomish County, Washington, encountered this scenario where the County Council directed that the 389-acre property previously zoned for commercial use and selected as the site for a new cemetery, had to be downzoned to a Forest-and-Agricultural zone; the land then became an undevelopable property that would never host a cemetery.
Snohomish County’s change to the zoning of the property constituted a "substantial interference" with the original zoning designation, and a total prohibition on the proposed use of the land. The county’s actions were therefore a "takings" of cemetery property under state law. It was held that substantial rights of cemetery operators had been violated.
Cemetery Zoning Applications and Permissions
A. Prepare Documentation
Prior to the application, preparation of deed restriction and tax exemption forms are critical. Additional documentation may be requested by the municipality, including expert letters attesting to such issues as the suitability of the land and landscaping or support from groups such as a Chamber of Commerce or other cemetery associations. Individuals who seek to establish a cemetery can expect to also provide a number of zoning-related documents: a site plan; an application for a building permit; and, if deemed necessary by the zoning board, a variance. If the property owner is denied a building permit, such denial can be appealed to the zoning board.
B. Consult the Zoning Board
The landowner will inform the zoning board of his claims and may request a formal hearing. Consistent with an applicant’s right to seek out crossings of governmental jurisdictions , the landowner may appear before a municipal board of adjustment, at which time he may make his case. Alternatively, the applicant may bypass the board and secure his right under the applicable law to appear before the zoning board, where his application will then go forward.
C. Public Hearing
Census, zoning approvals and supporting laws will be utilized as a foundation for a public hearing. The appointment of a state or municipal official, such as a registered land surveyor, is helpful, as this individual can give a statement attesting to the proper records. A solo practitioner may want to have a more experienced partner or attorney from another office attend the hearing as an observer. Once the hearing is complete, the municipality will issue a written decision. If a building permit or variance for construction is denied, the applicant has the right of appeal.
Case Law Highlights: Cemetery Zoning Do’s and Don’ts
To illustrate the above considerations, review the following examples of successful and unsuccessful ventures through the cemetery zoning process:
Example 1 – Successful Rezoning and Expanded Development
The Fort Snelling Memorial Chapel Association bought approximately 250 acres of land adjacent to the Fort Snelling Historical Site and the Minnesota River in 1853 for the purpose of establishing a cemetery. The State sold the Association the land as a cemetery, but after the U.S. government took over the land during World War I the state, now with expanded powers, imposed new zoning classifications. After a few failed attempts to rezone their land for added development opportunities, the Association formed a non-profit organization to oversee a lobbying campaign and pushed the state to grant special consideration for cemetery businesses to expand into surrounding agricultural lands. The effort was successful, and the Association was allowed to expand and develop excess land that has now expanded into about 390 acres.
Example 2 – Successful Approval of Expanded Development
Following the death of a beloved councilmember, city planning officials considered placing a cemetery on 22 acres of vacant land in St. Paul. Coupled with a citizen initiated zoning recommendation, the city petitioned the Minnesota legislature for a legislative amendment that would allow it to move forward with a cemetery plan. The amendment was passed in 2004, allowing the city to operate on as a commercial cemetery operation and sell the developed plots of land at a price per square foot comparable to semi-rural settings.
Example 3 – Failure to Get Variance Approved
In 2005 the Maryland-National Capital Park and Planning Commission denied a petition from the at the time largest cemetery operator in the D.C. area, which was located along Interstate 95 in Bowie, Maryland. The operator sought to expand into an adjacent parcel with a height variance that would have allowed it to develop a 152-foot tall mausoleum. However, the applicant was largely forced to seek the variance in order to have the same head south or east as its competitor cemetery, leading the board to believe that the applicant was simply trying to capitalize on the competitor’s success.
Future Directions in Cemetery Zoning
Looking ahead, several trends may have a significant impact on cemetery zoning. The changing attitudes of society toward death and burial practices may necessitate new zoning considerations. For instance, as green burial gains popularity, communities will increasingly be asked to accept cemeteries that align with these environmentally friendly methods. As the health care industry continues to prioritize environmental stewardship, burial in natural surroundings may permit the deceased person’s family and friends to honor those values in a lasting and meaningful way .
In addition, as the population grows, density issues may require local governments to allow vertical burial in order to make efficient use of land. This trend is already happening in some jurisdictions and will likely expand to others.
Finally, technological advancements may alter the way we deal with both the living and the dead. As more people choose to be cremated instead of buried, developers may be asked to create new projects that allow for vigils or memorial services. While at first glance cemeteries and funeral homes seem at odds with modern technology, those who are planning for the future are finding ways to incorporate virtual spaces that allow those who cannot physically attend to be present.