The Funeral Law Blog

Zoning Mistake at Heart of Crematory Controversy in Black Mountain, NC

Harwood Home for Funerals in Black Mountain, North Carolina has spent the past few months at the center of a controversy with some citizens of Black Mountain.  Harwood’s owner Rick Harwood wished to expand his business to offer cremation services.  To do so he planned to purchase an incineration machine and expand the footprint of his existing building to install it.  The controversy came about due to a zoning mistake that prohibited expansion of the building.  In 2010, Black Mountain rezoned Harwood’s location to central business district zoning which does not allow for a funeral home to be operated.  The director of planning and development said that while this zoning change made Harwood Home for Funerals a nonconforming use, it was likely due to a mistake of zoning. 

When Mr. Harwood applied to the planning board for a rezoning of his property so he could be in compliance with the zoning laws and expand his building, he made it known that he wished to offer cremation and that he would be installing an incineration machine.  He believes that cremation may be the chosen option for as many as 75% of his customers by 2030.  Some citizens of Black Mountain heard of this change and are worried about harmful fumes and bad odors being emitted from the building.  The machine Mr. Harwood plans on purchasing has safeguards that work to eliminate emissions while any smoke left after incineration is recirculated and purified before being released to the world outside.  The issue for Mr. Harwood is that his existing location is a 90-year-old building that cannot feasibly hold the incineration machine.  So, he needs an appropriate rezoning of just his property to a highway business district that would allow him to remodel and install the machine.  This will allow him to install the incineration machine in a manner that would minimize or eliminate any of the feared fumes or odors.

Black Mountain, like most local governments across the country, has a city planning committee that will hear requests for zoning variances or rezoning, make a determination about the requested change, and pass along their recommendation to the local legislative body who makes the ultimate decision on the issue.  The Black Mountain Planning Board voted 4-3 in favor of recommending rezoning for the funeral home and sent the matter to the Board of Alderman (the Black Mountain legislative body).  On November 7, the Board of Aldermen held a public hearing about the rezoning matter and heard the concerns of the citizens.  Many of the public comments were made in opposition to the installation of an incineration machine because of fear about toxins and fumes being released into the air.  Ultimately the board decided that this matter only came into the public eye due to the mistake in zoning and that arguments opposing the rezoning merely in opposition to the addition of a crematory were irrelevant because Mr. Harwood could install the machine in his building without rezoning and they, as the local government, could do nothing to stop him.  The Board of Alderman unanimously voted to rezone Harwood Home for Funerals to a highway business district as requested.  Had the property been properly zoned for a funeral home when the city most recently updated their zoning then Mr. Harwood would be able to expand his building and business without any approval from the city or input from the citizens.

Elliott Harry

Cemetery Tourist: Salem Cemetery in Winston-Salem, NC

Salem Cemetery was incorporated in 1856-1857 by E.A. Vogler, C.S. Bonner, A.H. Shepherd, H.A. Lemly, Thomas J. Wilson, Robert Gray, William Barrow, E.S. Patterson, E. Belo, H.W. Fries, Joshua Boner, E. Fries, and Jesse A. Waugh as the "Salem Cemetery Company." 

An early depiction of Salem from 1881 shows Salem Cemetery south of Cemetery Road and west of Park Avenue.

Salem Cemetery is adjacent to the Moravian cemetery of God's Acre, established in 1771, and just south of downtown Winston-Salem.  Photos below are from a visit on November 19, 2016.

No Man Left Behind

Given the costs associated with burials, it is no surprise that the homeless and those living in poverty cannot afford the traditional means of disposition, or have relatives that can claim the remains and cover the costs. Typically, the State takes possession of unclaimed human remains and either donates it to scientific/health purposes or pays for the disposition. However, many states have specific exceptions that do not allow military veterans to be donated to science for dissection. The reasoning behind this exception forbidding dissection of an unclaimed veteran may come from our country’s high reverence for those who have served our country.  

This public reverence for our veterans was exemplified recently in Wilmington, North Carolina, when a homeless Marine died and his remains went unclaimed after six months in a morgue. A Marine and former law enforcement officer took charge and claimed the homeless Marine in order to provide him a proper burial. They are presiding over the funeral with Missing in America, a nationwide non-profit corporation whose primary purpose is to identify unclaimed remains of veterans and provide them with a proper burial. This “No Man Left Behind” mindset ingrained into our veterans during their service helps shed light on the public sentiment that likely led to a veteran dissection exception in many states.

Jordan Ballard

Affordable Housing, Cemetery vie for Space in Chapel Hill

A planned community of affordable apartments in eastern North Carolina has some residents worried that there won't be enough room for a local cemetery.

The Chapel Hill Town Council sold off several acres adjacent to a local cemetery in 2013 to a non-profit in order to construct low-cost apartment housing for working families and seniors. Although construction is not slated to begin until next year, some locals are already concerned that this means there won't be room for the Chapel Hill Cemetery to expand in the future. One long-time resident, Eunice Brock claims that the land was promised to the cemetery by the Town Council twenty years ago.

“Most of the people in the town, especially if they’ve had family buried out there, expect it to just continue along on the side,” she told The Daily Tar Heel, the University of North Carolina's student newspaper.

While it is true that there are restrictions on what municipalities may due with land that has been officially designated for cemetery purposes, there are no such restrictions on land allegedly promised to cemeteries - and certainly not for the expectations of locals. 

There are currently only 53 plots left in Chapel Hill Cemetery, which cemetery administration only expects to last for about a year. After that, residents wishing to be buried will have to look elsewhere. Ms. Brock, with an apparently lack of irony, worries that this could be more expensive. Of course, there are always alternatives to burial. Chapel Hill is planning on building a columbarium adjacent to the cemetery.

As we have noted before, an ever-increasing population and a finite amount of land means that the living and the dead will continue to battle over real estate. While it may be true, as the French philosopher Auguste Comte remarked, that the dead govern the living, we need not allow them to regulate our land.

Steven Verez

The Tree of Life

The tree of life is a metaphor that appears in many different areas of study from religion, to biology, to literature.  However, thanks to two Italian designers the tree of life may soon no longer be limited to metaphor.  Anna Citelli and Raoul Bretzel have designed a biodegradable burial pod in which the body of the deceased is placed in the fetal position inside the pod and a tree is planted over the pod.  As the body decomposes it releases nutrients to the tree above.  The designers envision cemeteries with markers and headstones replaced by trees designating the burial places of loved ones.  They have also designed smaller pods for the burial of cremains. 

The designers have run into legal trouble with their burial pod design in their native Italy, which forbids “natural burials.”  However, there is a strong possibility that their design would be legal under many states’ statutes.  Despite being a non-traditional burial method, the body or cremains are still placed inside a container and interred in the ground with no intention to disinter the remains at a later date.  This is a key design element which would allow the burial pods to be legal in many parts of the United States. 

Turning to North Carolina, in addition to donation, the state provides for two methods of disposition: burial or cremation.  While this may seem limiting, “burial” is described as, “interment in any form, cremation and the transportation of the dead human body as necessary therefor.” N.C. Gen. Stat. § 90-210.20(c).  This is an incredibly broad definition of burial and as a result is inclusive of ideas such as burial pods.  The only regulation on how a burial is to take place is that, “when final disposition of a human body entails interment, the top of the uppermost part of the  . . . encasement shall be a minimum of 18 inches below the ground surface.” N.C. Gen. Stat. § 65-77.  When an individual is cremated, North Carolina law only demands that the cremains of multiple individuals not be comingled together or placed in the same closed container unless the individuals are of the same family.  N.C. Gen. Stat. § 90-210.130.  Burial pods designed to nourish trees are perfectly legal under these provisions as each set of cremains would receive their own pod and corresponding tree.  Therefore, while on the surface the concept of a biodegradable burial pod designed to nourish a tree with the help of a decomposing human body may seem strange, it is highly likely that the design is legal under existing North Carolina law.  

Lindsey Rogers

Heritage or Hate: Do all dead deserve respect?

Over the summer, Confederate monuments and graves were desecrated across the South.  In July, Confederate monuments located in cemeteries Reidsville, NC and Durham, NC were vandalized with the phrase “Black Lives Matter.”  The tragic shooting at Emanuel AME Church in Charleston, SC reignited a debate surrounding the prominent presence of the Confederate flag and other symbols of the Confederacy around the South.  Many frustrated individuals took their anger – about the Emanuel AME Church shooting and the deaths of numerous African American individuals at the hands of police across the country – out on these symbols.

Vandalism in cemeteries raises interesting questions about our reverence for the dead and our outrage at their disturbance.  A simple Google search regarding cemetery vandalism turns up countless headlines with tags like “community outrage” and “family outrage.”  Our society recognizes that the dead possess a “right” to rest in peace.  The families do not deserve the emotional trauma brought on by such vandalism.  Grave desecration and vandalism are normally senseless acts that make us wonder why anyone would damage memorials to the dead.  Most states have criminal statutes dealing with vandalism and desecration in cemeteries.  In June 2015, the North Carolina General Assembly adopted House Bill 552, which added a new section to North Carolina’s criminal statutes making it an offense to deface any real property “including cemetery tombstones and monuments” with graffiti vandalism.  First time offenders would be charged with a Class 1 misdemeanor; repeat offenders meeting certain conditions laid out in the statute, however, could be charged with a Class H felony.  This statute makes graffiti vandalism a separate offense from other acts of desecration and vandalism.

But does our view on respecting peaceful repose change depending on whose grave is being vandalized and the purpose behind the vandalism?  Do the graves and monuments of the Confederacy deserve less respect than others, simply because of their decision to fight on the side of the South?  Do the vandals separate the graves of the dead from the monuments that create a present reminder of slavery and oppression in the antebellum South? Grave desecration and vandalism of cemeteries is not an appropriate way to get a message across.  The burden of clean-up falls on the community and the cemetery, causing more harm than good.

Brandy Davis

Piece of Old City Hall Found in Abandoned Cemetery

Happy Hill Cemetery in Winston-Salem, North Carolina has been anything but “happy” throughout the last few decades.  Designed as a cemetery for the once thriving black community known as Happy Hill, the Cemetery has seen years of destruction beginning with the construction of U.S. Highway 52 in the 1950s that cut the cemetery in half.  The graves disturbed during the construction of U.S. 52 were reinterred in another cemetery.  Time and neglect took its toll on the Cemetery which quickly became an overgrown lot with lost and damaged headstones.  A group which calls themselves the Happy Hill Cemetery Friends meets every Saturday morning to help restore the Cemetery to its original condition, identify the graves, and determine which churches owned which portions of the Cemetery. 

It was on one of these Saturday mornings, in 2012, when men clearing the southern edge of the Cemetery discovered a carved piece of terra cotta molding roughly the size of a banker’s box.  After much research it was determined that the terra cotta piece belonged to the exterior molding of the now-demolished 1892 Winston Town Hall. By 1926 Winston Town Hall had been demolished to make way for the Reynolds Building which still stands on the corner of Liberty and Fourth Street today.   At the time, the Cemetery was an easy dumping ground for construction debris. 

Today there is debate over what should be done with this piece of Winston’s past. Some would like it displayed in City Hall, some would like it displayed in a museum, while others think it should be incorporated into the redesign of the Reynolds Building.  While these are all valid ideas, one unspoken question remains: who exactly owns the terra cotta molding and therefore, who can make the decision as to what to do with it.  The molding was originally part of a city-owned building but was later dumped and abandoned in Happy Hill Cemetery.  Happy Hill Cemetery itself has been abandoned and volunteers have yet to determine which churches own which portions of the cemetery.  Even if the Cemetery’s ownership was determined, most of the churches no longer exist.

North Carolina General Statute § 65-85(1) defines an abandoned cemetery as a cemetery “ceased from maintenance or use by the person with legal right to the real property with the intent of not again maintaining the real property in the foreseeable future.”  As the original property owners no longer exist it can be reasoned that Happy Hill Cemetery is abandoned as it is not being maintained by those with the legal right to the property and will not be maintained by those nonexistent churches in the foreseeable future.  It may also be deemed “neglected” as it was, “left unattended or uncared for through carelessness or intention and lacking a caretaker” (See N.C. Gen. Stat. § 65-85(5)). However, as the Happy Hill Cemetery Friends continue their work it may no longer be deemed “neglected.”

Under North Carolina General Statute § 65-113, the County Commissioners may choose to maintain and control abandoned cemeteries.  However, this statute only applies to public cemeteries and North Carolina General Statute § 160A-345 states that cemeteries “owned or controlled by any church or religious organization” cannot be condemned by the city nor can the city acquire title to the property unless “the owner of the property consents to the acquisition.”  As such, the city has no authority to direct the cleanup of the Cemetery and determine what is to be done with any debris found on the property.  Yet at the same time, the churches no longer exist and therefore cannot consent to the city acquiring control of the Cemetery.  As such, with the city being prohibited from acquiring the Cemetery and with the original owners no longer in existence, Happy Hill Cemetery has become a cemetery with no true owner.

Lindsey Rogers

Cemeteries Owned by a "Fraternal Organization"

The North Carolina Cemetery Act regulates cemeteries and the cemetery industry in North Carolina. The Cemetery Act states, “Any cemetery beneficially owned and operated by a fraternal organization or its corporate agent for at least 50 years prior to September 1, 1975, shall be exempt from the provisions of Article 9 of this Chapter.” NC Gen. Stat. § 65-47(b). However, the Cemetery Act does not define “fraternal organization,” and this lack of clarity raises questions about the types of organizations that are exempt from the Act.

The Cemetery Act was enacted in 1975. Before 1975 “fraternal organization” was only used three times in North Carolina session laws, and none of these laws defined the term. The IRS grants fraternal organizations tax-exempt status under IRC 501(c)(8) and IRC 501(c)(10). IRC 501(c)(8) is a classification for organizations with a fraternal purpose, that operate under a lodge system, and that provide for the payment of life, sick, accident, or other benefits. IRC 501(c)(10) is a classification for organizations that operate under a lodge system and devote their net earnings exclusively to religious, charitable, scientific, literary, educational, and fraternal purposes, but do not provide for the payment of life, sick, accident, or other benefits. For example, Freemasons have a 501(c)(10) status.

Some fraternal organizations, like Odd Fellows, own and operate cemeteries. Some, like Woodmen of the World, provide insurance and benefits to members. Others, like the Freemasons, have no involvement in the cemetery industry. Under the Cemetery Act, a cemetery owned and operated by a fraternal organization prior to September 1, 1925 has to comply with the regulations, but, because “fraternal organization” is not defined, does this apply to fraternities as they are described in the IRC? It is also possible and reasonable to assume that it applies to other organizations that call themselves fraternities, but that do not fit inside the parameters defined by the IRS. The North Carolina General Assembly should amend the statute to provide clarity. 

Brandon Heffinger

“I’m a Tar Heel born, I’m a Tar Heel bred, and when I die I’m a Tar Heel dead”

The quote in the title is an excerpt from “I’m a Tar Heel Born,” the fight song of the University of North Carolina at Chapel Hill.  Fans of the University sing the fight song at the conclusion of school sporting events, to demonstrate figuratively their devotion to the university and its athletics efforts.

Two student organizations on campus, which pre-date the fight song, have throughout their existence applied a more literal interpretation of the quote. The Dialectic and Philanthropic Societies (“Di-Phi”), the oldest student organization at any public university in the United States, was formed originally as the Debating Society in 1795.  have historically provided funeral and burial expenses for organization members who pass away during their time at UNC.  The groups have plots in the Old Chapel Hill Cemetery on campus.

Minutes preserved by the organization online show the group discussing recently-deceased members and arranging to cover funeral expenses. In one such meeting on September 30, 1833, the minutes document that group members were to wear crepe, or black bands, on their arms to mourn the lost of fallen member James T. Smith.  The minutes further ordered that representatives of the society would notify Mr. Smith’s father that “[the] society will pay all expenses incurred by burial of his son.”

The organization is not only the oldest on campus in Chapel Hill but also one with great influence of the shaping of the university over the years. Originally one group, the society split into two sects – the Dialectic Society and the Philanthropic Society. At first, every student was required to join one of the societies.  Its first order of business as a society was to order books for the university.  The Dialectic and Philanthropic Societies respectively adopted the official colors of light blue (symbolizing the blue ribbons holding significance in the nearby agricultural communities) and white (symbolizing truth and virtue). They pre-dated an official school government and established their two colors as the university’s official school colors to counter schools like the University of Virginia and Wake Forest, who exhibited school colors at athletic contests.

The groups also founded many organizations on campus, such as the General Alumni Association, the Yackety-Yack yearbook, and many academic schools.  It is only fitting then that their tradition of honoring death would come to be memorialized in the school’s fight song and become the (Carolina Blue) lifeblood of the university.

Charlie Lane

Would Be NC Funeral Home Operators Kept Waiting

Two NC businessmen are fuming at what appears to be an incredibly slow response by the North Carolina Board of Funeral Services. The two businessmen, one of whom is a licensed funeral director in NC, are attempting to open a funeral home in Durham. The two men have obtained all the necessary local permits and spent $65,000 on a building to make it operable as a funeral home. After the renovations, they submitted an application to the NC Board of Funeral Services seeking an inspection by a Board inspector, and waited for the Board’s response. Then they kept waiting for weeks. After tiring of waiting for a response, the businessmen contacted the Board to see why they didn’t hear back, and were told about an issue with their application. The businessmen then fixed the issue, but were stuck waiting on the Board once again. The businessmen eventually travelled to Raleigh in an attempt to meet with the Board, but were turned away. In response, the businessmen were “less than cordial” with several members of the Board staff, who now refuse to meet with the businessmen without an attorney present.  

North Carolina statues empower the NC Board of Funeral Services to regulate the practices of funeral services. The Board consists of nine members, each serving a three year term. Seven of those members are appointed by the governor, one is appointed by the Speaker of the NC House, and the final member is appointed by the President Pro Tempore of the NC Senate. North Carolina law requires all funeral establishments meet certain requirements, some of which are having a preparation room with a properly sized operating table, adequate drainage, easily cleanable wall and floor coverings, and proper ventilation. State law also requires a licensed funeral director or a funeral service licensee to be a partner to the business if the funeral home operates as a partnership.  Failure to meet any of these requirements can result in fines imposed by the Board, and depending on the nature and frequency of the problem, a funeral director can have their license revoked.

One of these businessmen is a licensed funeral director. It is also apparent that they have spent a lot of money to make their business location comply with these requirements (although we don’t know if they perfectly comply from the story). The issue for these businessmen is that while the Board is "empowered to... inspect…funeral establishments”, NC Law does not require the Board to inspect a funeral home upon request. Without any such requirement, the statute appears to grant the Board full discretion as to whether it inspects a funeral home or not. As such, these businessmen, who may meet all of the requirements to operate a funeral home, have no means of forcing an inspection by the Board, and thus they must wait. While this is a less than ideal situation for the businessmen, unless they have friends in the Governor’s office or high up in the NC General Assembly, it is unwise for these businessmen to act “less than cordial” to the Board staff.

James Harrell