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City rules now allow "backyard" burial plots
Councilman Geoff Schroeder can't think of any good reason why people shouldn't be allowed to bury a loved one on their own property in Mountain Home.
And he has the law behind him -- or at least the lack of any such law.
A few weeks ago, as city council was preparing an ordinance to raise fees at the city cemetery for plot purchases, burial fees and other costs, they were approached by Jerry Rost, the owner of Rost Funeral Home and the county coroner, who raised some questions about the city's ordinance concerning the burial of bodies.
"I'd had some people ask some questions (as part of funeral pre-planning) and I couldn't answer them," Rost said. "So I went to the council to get some direction."
The problem, Rost and the council discovered, was that essentially there is no law concerning how a person can (or even must) be buried or cremated. There are extensive regulations in state law for formal, publicly owned and privately owned public cemeteries, all designed to "preserve the sanctity and dignity" in perpetuity of any gravesite, and lengthy sets of laws and regulations regarding funeral homes. There also are federal laws and regulations that prohibit both burials and the disposal of cremated remains on federal lands (without special permission).
But "family plot" burial regulations on privately held lands are left entirely to cities and counties to develop relevant ordinances -- and few have them.
Under state law, a person must notify authorities of any death of which they are aware. That's designed to prevent someone from "burying Uncle Fred after he's died in the parlor" without telling anyone. A death certificate must then be issued.
But once that death certificate is issued, and the body released to a family, what they do with it is largely up in the air. There are no state laws (other than possible health code violations that might eventually apply), regarding what they do with the body after that (except a requirement that a body must be embalmed if the person died of a communicable disease).
Common social practice is to send the body to a funeral home, for proper preparation and burial in a casket, or cremation, at which point a large number of state laws and regulations come into play regarding what funeral directors, morticians and embalmers can, can't and must do.
But what if the family chooses not to send the body to a funeral home, or, even if they do, chooses not to have the body buried in the city cemetery?
"I think we all just assumed there were state laws covering this," Mayor Tom Rist said. But when Rost asked his questions for clarification by the city, "after we started looking into it, we realized there weren't.
"We're not the only ones in that boat," Rist said. "Normally, when we need an ordinance for something, we just go find one that someone else has written and steal it. But most towns in the state are like us. They don't have one."
The city ordinance applies only to burials in the city cemetery, and has a number of loopholes in it.
For example, it requires that a casket buried at Mountain View Cemetery must be contained in a concrete box or vault. That's essentially a maintenance issue. In the older part of the cemetery, where some graves go back to the late 19th century, after every winter one or two have collapsed, forcing the cemetery maintenance crew to fill in the the sunken ground and resod. Concrete boxes or vaults prevent that, keeping the lawn over the graves even.
But the ordinance only applies when a body is buried in a casket.
"I've had two people, in just the last month, who've requested that they not be buried in a casket," Rost said. And there's no city ordinance that would prevent that (which also would avoid the cost of both the casket and the sealed concrete box or vault).
Frankly, Rost said, he'd prefer to see an ordinance that both human remains and cremation ashes buried at the cemetery be required to be in a sealed box or container, because "it makes it a lot easier" to recover the remains if a family wishes to have a body disinterred and reburied somewhere else, something that happens roughly once or twice each year.
In fact, it was that issue that prompted the county to adopt a "family plot" burial ordinance in 2003. At that time, a family had come to the county requesting information concerning any laws that they would have to follow in order to have a relative disinterred in California and reburied on their own land in the county. Eventually, the family decided not to do it, but the county realized it needed something to control such burials outside of any public cemetery.
As a result, the county adopted an ordinance that restricts such "family plot" burials to Ag Zone A and requires that family burial plots be platted. It also provides for certain set-back requirements from property lines, roads, dwellings and other designated buildings, and any water sources, both surface and wells. It also requires that above-ground burials in crypts or mausoleums meet certain building code requirements.
In order to "preserve the sanctity and dignity" of the burials, the county also requires that, upon the sale of any land containing a family burial plot, the existence of the graves must be disclosed to the buyer and responsibility for properly maintaining them is the duty of the title holder of the land.
None of those requirements currently apply in the city, and there is at least one formerly residential lot in the city known to have a grave on it (although the burial occurred early in the 19th century when the property was in the county).
Schroeder said that when the issue of a person conducting a burial on their private property was first raised, he, like most of the rest of the council, at first thought the loophole in the law should be closed. "But then I started to think about it, and asked myself, 'why?' And I couldn't come up with a good idea to prevent it. If that's what someone wants to do, why shouldn't they be able to" bury a loved one on their own property, rather than in the city cemetery, he said. "I remain open to be convinced that it's a bad idea."
Schroeder noted that such requests would be extremely rare, although, he added, in today's economy people looking to save funeral and burial costs might consider it a little more often than has been done in the past.
He does believe, however, that for health reasons, a body should be buried in a casket, and thinks it's a good idea to require disclosure of the existence of any grave on a property when that property is sold.
The city is expected to take up the issue at its next council meeting, and according to Mayor Rist, most of the council seems inclined to close the loopholes involving the city cemetery, and create some kind of an ordinance regulating or restricting burials on private land.
"It's something we're really going to have to think about," he said.