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Moving Father's Grave to Build a Sewer: Taking Cemetery Land by Eminent Domain

They're moving father's grave to build a sewer

They're moving it regardless of expense

They're moving his remains to put down nine-inch drains

To irrigate some posh bloke's residence

These lyrics to an old English song humorously illustrate the issue of taking cemetery land by eminent domain for other uses. Eminent domain has deep roots in American common law, and was commonly practiced during the pre-revolution, colonial era with little regulation, and often no compensation given to private land owners. The Fifth Amendment imposed some limits on the practice, but the use of eminent domain by state and local governments has expanded in frequency and scope over time, including a marked increase in its use for private projects in recent years. To illustrate, one study found that between 1998 and 2002 there were 10,000 actual or threatened condemnations. 

With open space becoming scarcer in developed areas, it was only a matter of time before state entities began using eminent domain to take cemetery land. The very idea that remains interred in a cemetery might be disturbed at some future point to make way for the construction of a school, airport runway, or a freeway seems at odds with the ingrained American notion that the deceased are to rest in peace for perpetuity in their grave. Yet this is exactly what happens. 

State law varies in the protections and process by which cemeteries are protected from condemnation. In Florida, state law specifies that cemeteries may only be taken for specific uses: “road system, transportation corridor, or rights-of-way purposes.” This comes with a major caveat-- if the taking entity holds a public hearing where it is determined that there is no reasonable alternative to condemnation of the cemetery property for the project, then condemnation is permitted. 

In Texas, cemetery property is exempt from taxation and seizure by eminent domain, and it may not be seized nor sold by creditors of the individual owners of the cemetery. The only way cemetery property may be condemned is if the land’s legal designation as a cemetery is removed by order and decree of district court, or directors of cemetery association or two thirds of owners of burial plots in cemetery consent to the condemnation.  Texas state law empowers counties to exercise the right of eminent domain to condemn and acquire land for public use. This right of eminent domain applies to all public or private land, except, the statute specifically states that counties’ powers of eminent domain do not extend to “land used for cemetery purposes.” 

While state statutes do exist to protect cemeteries from being condemned via eminent domain, these are not always enough to halt development when the powers in favor are dead-set on it. In 1960, a California district court of appeal held that state law prohibited the taking of cemetery land for the development of an interstate. In response, the California Department of Transportation sought federal muscle. At the department's behest, the feds then filed a successful condemnation action in federal court, under the theory that it was a federal taking for a state project that enjoyed federal funding. The cemetery sued the CA state officials to enjoin them from accepting title from the feds, but the CA Supreme Court ruled against them. So, at least in California, state law can be ignored provided the project for which the cemetery land is taken is funded, at least in part, with federal dollars.

Dave Brennan

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