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HomeMy WebLinkAboutAgenda - 08-22-1995 - VIII-L 1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: August 22, 1995 Agenda Abstract Item # _Y=-IL SUBJECT: RELOCATION OF GRAVES -LOT 9 OF THE RESERVE SUBDIVISION/PHASE II DEPARTMENT: Planning PUBLIC HEARING: Yes X No ATTACHMENTS: INFORMATION CONTACT: Bagwell 8/2/95 Letter Planning Director X2592 G.S. 65-13 PHONE NUMBERS: Hillsborough 732-8181 Mebane 227.2031 Durham 688-7331 Chapel Hill 967-9251 PURPOSE: To consider the request of Marin Development Company to relocate graves found on Lot 9 in Phase II of the Reserve Subdivision. BACKGROUND: The Reserve Subdivision is a subdivision approved by the Town of Chapel Hill but located outside the corporate limits.Recently,grave sites were discovered on Lot 9 of Phase II of that development. Ken Bagwell, the attorney for Mann Development Company, has requested permission to relocate the graves in accordance with N.C. General Statute 65-13. The basic provisions of the statute which are applicable to this case are as follow: • The person,firm or corporation owning the land on which the grave sites are located must first obtain the approval of the governing board of the county. • The party effecting the removal must publish a notice of the removal at least once a week for four successive weeks in a newspaper of general circulation, with the first notice being published not less than 30 days before removal. • Any remains must be reinterred in a suitable cemetery. • The party causing removal of such graves must, within 30 days of completion of the removal,file a certificate of removal with the Register of Deeds office. • All expenses associated with the removal shall be borne by the party effecting the removal • All removal shall be made under the supervision of the Board of County Commissioners or other appropriate official,such as the Health Director. l f 2 Mr. Bagwell has indicated that both the Division of Archaeology of the N.C. Department of Cultural Resources and the UNC Department of Anthropology have been contacted to determine if there is any historical or archaeological significance associated with the grave sites. None was identified. Mr. Bagwell has also indicated that a funeral director (as required by G.S. 65-13) has been employed to oversee the removal of the graves and that publication of the required notice will commence during the week of August 13-19.Copies of the affidavit of publication will be provided to the County upon completion of the notice requirement. RECOMMENDATION: The Administration recommends approval of the removal and reinterment of the remains found on Lot 9 of Phase H of the Reserve subject to: • Submission of an affidavit of publication following completion of the notice requirement; and • Oversight of the removal by the Health Director or his designee. J Recei BAGWELL & HOLT, P. A. AUG 0 3 ic95 3 ATTORNEYS AT LAW 100 EUROPA DRIVE,SUITE 421 Managers I e CHAPEL HILL, NORTH CAROLINA 27514 i'c O.KENNETH BAGWELL,JR. TELEPHONE:)919)942-0062 THOMAS R.HOLT FACSIMILE:(919)942-1822 NATHANIEL C.SMITH J.DICKSON PHILLIPS,III OF COUNSEL August 2, 1995 John Link Orange County Manager P.O. Box 8181 Hillsborough, NC 27278 Re: Marin Development Company; Relocation of Graves from Lot 9, The Reserve II Dear John: I am writing to confirm that the above referenced matter has been scheduled on the Consent Agenda for the meeting of the Orange County Commissioners on August 22. As we discussed yesterday, the relocation of the graves must be done in compliance with N.C.G.S. §65-13. I will attend the meeting on behalf of Marin Development Company, along with the funeral director who will oversee the relocation. Thank you, and please call if you have any questions or concerns. Sincerely, Bagwell & Holt, P.A. O. Kennea well Jr. g OKB:m xc: Sally L. Brown, President Marin Development Company 4 §65-13 CH. 65. CEMETERIES §65-13 ARTICLE 5. Removal of Graves. § 65-13. Removal of graves; who may disinter, move and reinter; notice; certificate filed; reinterment expenses, due care required. (a) The State of North Carolina and any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, any church, electric power or lighting com- pany, or any person, firm, or corporation may effect the disinter- ment, removal, and reinterment of graves as follows: (1) By the State of North Carolina and any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, when it shall determine and certify to the board of county commissioners in the county from which the bodies are to be disinterred that such removal is reasonably necessary to perform its governmental functions and the duties delegated to it by law. (2) By any church authority in order to erect a new church, parish house, parsonage, or any other facility owned and operated exclusively by such church; in order to expand or enlarge an existing church facility;or better to care for and maintain graves not located in a regular cemetery or bury- ing ground for which such church has assumed responsibil- ity of care and custody. (3) By an electric power or lighting company when it owns land that is to be used as a reservoir on which graves are located. (4) By any person, firm or corporation, which owns land on which abandoned cemeteries or burying grounds are lo- cated after first securing the consent of the governing body of the town, city or county in which such abandoned ceme- teries or burying grounds are situated. (b) The party effecting the disinterment, removal and reinter- ment of a grave containing a decedent's remains under the provi- sions of this Chapter shall, before disinterment, give 30 days writ- ten notice of such intention to the next of kin of the decedent, if known or subject to being ascertained by reasonable search and inquiry, and shall cause notice of such disinterment, removal and reinterment to be published at least once per week for four succes- sive weeks in a newspaper of general circulation in the county where such grave is situated and the first publication shall be not less than 30 days before disinterment. Any remains disinterred and removed hereunder shall be reinterred in a suitable cemetery or burial ground. (c) The party removing or causing the removal of all such graves shall, within 30 days after completion of the removal and reinter- ment, file with the register of deeds of the county from which the graves were removed and with the register of deeds of the county in which reinterment is made, a written certificate of the removal 6 5 §65-13 ART. 5. REMOVAL OF GRAVES §65-13 1 facts. Such certificate shall contain the full name, if known or rea- sonably ascertainable, of each decedent whose grave is moved, a precise description of the site from which such grave was removed, a precise description of the site and specific location where the decedent's remains have been reinterred, the full and correct name of the party effecting the removal, and a brief description of the statutory basis or bases upon which such removal or reinterment was effected. If the full name of any decedent cannot reasonably be ascertained, the removing party shall set forth all additional rea- sonably ascertainable facts about the decedent including birth date, death date, and family name. A fee of one dollar($1.00)for each page or portion of page of such certificate of removal facts shall be paid to the register of deeds of each county in which such certificate is filed for registration. (d) All expenses of disinterment, removal, and acquisition of the new burial site and reinterment shall be borne by the party effect- ing such disinterment, removal, and reinterment, including the ac- tual reasonable expense of one of the next of kin incurred in attend- ing the same, not to exceed the sum of two hundred dollars ($200.00). (e) The office of vital statistics of North Carolina shall promul- gate regulations effecting the registration and indexing of the writ- ten certificate of the removal facts,including the form of that certif- icate. (f) The party effecting the disinterment, removal, and reinter- ment of a decedent's remains under the provisions of this Chapter shall ensure that the site in which reinterment is accomplished shall be of such suitable dimensions to accommodate the remains of that decedent only and that such site shall be reasonably accessible _i to all relatives of that decedent, provided that the remains may be reinterred in a common grave where written consent is obtained from the next of kin.If under the authority of this Chapter disinter- ment, removal, and reinterment is effected by the State of North Carolina or any of its agencies, public institutions, or political sub- divisions, the United States of America or any agency thereof, any electric power or lighting company, then such disinterment, re- moval, and reinterment shall be performed by a funeral director duly licensed as a "funeral director" or a "funeral service licensee" under the provisions of Article 13A of Chapter 9,0 of the North Carolina General Statutes. (g) All disinterment, removal and reinterment under the provi- sions of this Chapter shall be made under the supervision and direc- tion of the county board of commissioners or other appropriate offi- cial,including the local health director,appointed by such board for the county where the disinterment, removal and reinterment take place. If reinterment is effected in a county different from the county of disinterment with the consent of the next of kin of the deceased whose remains are disinterred,then the disinterment and removal shall be made under the supervision and direction of the county board of commissioners or other appropriate official, includ- ing the local health director,appointed by such board for the county of the disinterment, and the reinterment shall be made under the supervision and direction of the county board of commissioners or other appropriate official, including the local health director, ap- pointed by such board for the county of reinterment. 7 §65-13 CH. 65. CEMETERIES §65-13 6 Due care shall be taken to do said work in a proper and decent manner, and, if necessary, to furnish suitable coffins or boxes for reinterring such remains. Due care shall also be taken to remove, protect and replace all tombstones or other markers, so as to leave such tombstones or other markers in as good condition as that prior to disinterment. Provided that in cases where the remains are to be moved to a perpetual care cemetery or other cemetery where upright tombstones are not permitted, a suitable replacement marker shall be provided. (h) Nothing contained in this Article shall be construed to grant or confer the power or authority of eminent domain, or to impair the right of the next of kin of a decedent to remove or cause the removal, at his or their expense, of the remains or grave of such decedent. (1919,c. 245; C.S., ss. 5030, 5030(a);Ex. Sess. 1920,c. 46; 1927, c. 23, s. 1; c. 175, s. 1; 1937, c. 3; 1947, cc. 168, 576; 1961, c. 457; 1963, c. 915, s. 1; 1965, c. 71; 1971, c. 797, s. 1; 1977, c. 311, s. Local Modification. — Orange: tombstones,see§ 14-148.As to interfer- 1963, c. 915, s. 11/2. ence with graveyards, see §§ 14-144, Cross References.—As to removal 14-149. of or interference with monuments and CASE NOTES This section is much broader than disinterment of a body. The statute the older C.S.5030,and reflects a rec- speaks to the situation where a body had ognition of the need for broad authority been properly interred,but for some rea- by church authority to meet the needs of son justified by the public interest or by a growing membership in relocating some compelling private interests it is graves which would restrict that growth. necessary to effect a disinterment, re- Singletary v. McCormick, 36 N.C. App. moval,and reinterment.This statute no- 597, 244 S.E.2d 731 (1978). where provides for the situation where The phrase"in order to"in subdi- there has been an improper interment. vision (a)(2) of this section is synony- Strickland v. Tant, 41 N.C. App. 534, mous with the phrase"as the means to." 255 S.E.2d 325, cert. denied, 298 N.C. Singletary v. McCormick, 36 N.C. App. 304, 259 S.E.2d 917 (1979). 597, 244 S.E.2d 731 (1978). Action for Removal of Grave in Vi- Relocation of Street to Enlarge olation of Former Provision. — See Church Facility.—Though graves pro- King v. Smith, 236 N.C. 170, 72 S.E.2d posed to be relocated were within the 425 (1952). area of a relocated street,the street was The building of a new vestry room to be relocated"as the means to"expand of a church to be used with the one as or enlarge an existing church facility, presently located in relation to the use of and therefore relocation of the graves the choir,etc.,comes within the purview was permissible. Singletary v. of the statute permitting the removal of McCormick, 36 N.C. App. 597, 244 the bodies buried in the churchyard by S.E.2d 731 (1978). the proper authorities of the church, Section Not Exclusive Grounds for when necessary or expedient to do so,in Disinterment.—This statute does not carrying out the arrangement. Mayo v. provide the exclusive grounds for the Bragaw,191 N.C.427,132 S.E.1(1926). 8