By: James L. Hyer, Esq.
Immediate legislative and administrative action is necessary to preserve the historic cemeteries of New York State (NYS) effectively. Worthy of preservation, these cemeteries present an amalgam of historic information, offering valuable data about the past and the evolution of society. Preservation of these sites will permit the continued opportunity to research the burial practices of the region, including the location and relocation of cemeteries, methods of burial, segregation in burial, trends of cemetery design and public perception of burial. This comment offers arguments in favor of historic cemetery preservation, a synopsis of pertinent NYS cemetery law, as well as ways to alter NYS laws, regulations and procedures to better achieve preservation.
Why should Historic Cemeteries Be Preserved?
The NYS Department of State reports that approximately 6,000 cemeteries exist in the State: 1,900 being regulated by the New York State Cemetery Board (CB), and the remaining 4,000 as municipal, religious, family and private cemeteries. These cemeteries share in a history of burial customs historians believe began thousands of years ago in South Africa. Further, cemeteries have held an important role in shaping American culture, as the use of cemeteries grew beyond that of interment. Most notably, the rise of garden cemeteries in the 1800’s changed the American perception of death. Historian Dr. June Hobbs noted, “Coffins began to be called caskets, to indicate their function as a receptacle for something precious…” and continued, “The fashionable name for a graveyard became ‘cemetery,’ from the Greek [word] for ‘sleeping place.’
Furthermore, the physical fixtures of the historic cemeteries provide additional rationale for their preservation. Marvelous fencing, mausoleums, crypts, sculptures, landscaping and other ornate décor may be observed, while archaeological treasures such as crypts and security coffins exist below the surface of historic cemeteries throughout NYS. Gravestones and their inscriptions provide a useful tool for historians, as “the selected icon and verse would have meant something to the deceased or the descendants, thus sometimes giving a glimpse into personalities and attitudes.” With more than 8,000 religious and secular symbols, and hundreds of emblems to represent fraternal, civic, social, professional, or military organizations, gravestone inscriptions on headstones have been admissible in court proceedings brought to preserve historic cemeteries.
What Threats Endanger Historic Cemeteries?
The primary threats to historic cemeteries in NYS are vandalism and theft, mismanagement, abandonment and neglect, development, and relocation. Vandalism is defined under the regulations governing CB as, “the willful or malicious destruction or defacement of property in a cemetery, including but not limited to, the toppling of memorial stones, damage to crypts, niches, grave sites, monuments and memorials.” Cemetery vandalism commonly targets gravestones, and has motivated the establishment of organizations including Saving Graves, which monitors such vandalism. Improper routine restoration, maintenance, and cleanups cause the threat of mismanagement, exemplified by the common practice of moving headstones from their original positions to places deemed more suitable, including use as pavers, steps, etc. In an effort to halt mismanagement, numerous organizations across the County, including The Lower Hudson Conference of Historical Agencies and Museums, have sought to educate preservationists and cemetery managers on proper preservation methods.
Abandonment and neglect are further threats to historic cemeteries. The courts of NYS have defined the degree of neglect and outline factors that constitute “abandonment” of a cemetery. In Chace v. Leising et. ux., the court noted, “So long as a cemetery is kept and preserved as a resting place for the dead, with anything to indicate the existence of graves, or so long as it is known or recognized by the public as a cemetery, it is not abandoned, but where a cemetery has been so neglected as entirely to lose its identity as such, and is no longer recognized as a cemetery, it may be said to be abandoned.” Factors utilized to determine abandonment of a cemetery include lack of fencing, vicarious growth, the connection of clotheslines from trees within the cemetery to nearby homes, litter covering the plot, and few visible headstones. The lack of an internment within the period of twenty years is also a factor considered in the determination if a cemetery is in fact abandoned. As old communities disappear and families move away, it is common that historic cemeteries fall into a state of neglect as they are lost, forgotten or completely disregarded.
Growth of our communities, combined with the lack of building and land use codes, routinely has led to development of sites containing historic cemeteries. For example, during construction in Albany, New York, numerous bodies were found in building foundations under parking lots. Noting that this cemetery was earmarked for the destitute, Carol Raemsch, a bio-archaeologist with Hartgen Associates as quoted as saying, “These were poor people who didn’t matter much back when there weren’t a lot of rules about building, construction was done right on top of them.”
Often a threat closely associated with development, relocation might be deemed by many as the most appalling danger to historic cemeteries in NYS. Those opposing disinterment have claimed that the act would be against religious tenets and would, “amount to a desecration of the body, the grave and the cemetery.” The courts have acknowledged the sensitivities involved with the relocation of the dead, requiring that good and substantial reasons be provided before disinterment is permitted. However, relocation is allowed in New York. During the development of the New York City watershed, for example, the filling of the Ashokan Reservoir caused the relocation of forty cemeteries consisting of 2,700 graves.
What Laws And Regulations Govern NYS Cemeteries, And What Change is Needed To Further Protect Historic Cemeteries?
New York State law creates six distinct categories of cemeteries: (1) public cemetery corporations (PCCs), (2) private & family cemetery corporations, (3) religious cemeteries, (4) municipal cemeteries, (5) Indian cemeteries and (6) pet cemeteries. This comment excludes discussion of Indian cemeteries as they have distinct issues regarding preservation, and pet cemeteries. Although cemeteries are afforded certain statutory protections regarding their maintenance and preservation, these protections vary for each category and often are inadequate. However, with regard to municipal cemeteries where the protections are largely in place, familiarity with the pertinent laws are vital to preservationists.
- Public Cemetery Corporations (PCCs)
The declaration of policy for the statute governing PCCs clearly pronounces the interests of NYS in cemetery administration and preservation: “The people of this state have a vital interest in the establishment, maintenance and preservation of public burial grounds and the proper operation of the corporations that own and manage the same. This article is determined… to prevent cemeteries from falling into disrepair and dilapidation and becoming a burden upon the community…”
In furtherance of this policy position, numerous statutory provisions were created with the intent of protecting the integrity of public cemeteries in NYC.
Under the N.Y. Not-For-Profit Corporation Law, guidelines are established for PCCs. These cemeteries are administered by a Cemetery Board (CB) Within the Division of Cemeteries (DOC) in the Department of State. In a recent interview, Richard D. Fishman, Director of the DOC, noted that although the DOC deals with the issue of historic preservation, and that a number of the cemeteries under the DOC’s jurisdiction are historic landmarks, historic preservation is not a primary focus.
However, the CB is empowered to establish rules and regulations necessary to carry out its statutory mandate to regulate PCCs. The promulgation of such regulations are agency actions subject to review under the New York State Historic Preservation Act (NYSHPA) as a number of cemeteries affected are listed on or eligible for listing on the State Register. These regulations also are subject to review under the New York State Environmental Quality Review Act (SEQRA). These review processes have not been utilized to date, as Mr. Fishman claims, incorrectly, that SEQRA and NYSHPA review do not apply to CB rules and regulations. Accordingly, the DOC immediately should conduct a Generic Environmental Impact Study under SEQRA to review their current rules and procedures to evaluate their effectiveness with regard to historic preservation of the cemeteries under their jurisdiction.
One such regulation provides municipalities the opportunity to request assistance from the DOC in the, “organization, implementation and administration of a volunteer cemetery maintenance and cleanup program for abandoned cemeteries.” Upon receipt of a municipal request, the DOC is to provide assistance including, “professional and technical guidance, a listing of service providers, such as historical monument restorers and provide written guidelines for general maintenance.” As written, this regulation may be used proactively by activists seeking to preserve historic cemeteries. However, Mr. Fishman reported that although there is a statutory mandate for this program, it has never been implemented due to lack of funding. Further, Mr. Fishman notes that the DOC does not have the staff or the expertise to run such a program. As such, the state legislature should consider the relocation of this program to the Department of Parks, Recreation and Historic Preservation and to provide the staff and funds necessary for the program’s administration and implementation.
The CB regularly investigates and imposes sanctions on PCCs for mismanagement or failure to comply with the various rules and regulations issued by the Board. Several provisions within the statute speak to the issue of maintenance and preservation by PCCs. These provisions are broken into two groups, statutory duties and funds, and deserve attention as they are inadequate in a number of areas.
Among the statutory duties of PCCs is the authority of a corporation to remove or correct dangerous conditions in cemetery lots including, “any plant life, fencing or embellishment or structure other than a mausoleum, monument or mound, in a lot, plot or part thereof which becomes worn, neglected, broken, or deteriorated, that its continued existence is a danger to persons or property within the cemetery grounds, “after proper notice is given to the last known owner. It is within the 9interest of the PCCs to promptly repair dangerous conditions as they may be held liable for injuries resulting from them. The corporation also has the discretion to repair non-dangerous damage or defacement, but must provide notice to the last known owner if the damage or defacement involves a plot. A monitoring system should be implemented whereby routine yearly or bi-yearly inspections are made of the cemeteries to inspect and report on damage and defacement to the grounds. If such damage or defacement has adverse affects on historically significant fixtures, repair by the PCC should be made mandatory.
Note, however, that cemetery renovations consisting of major alterations require approval of the CB. PCCs must first file a report with the CB outlining the specifics of the proposed renovation. The CB may request further information as needed to make its final determination. Although the CB does not currently consider possible adverse affects on the historic traits of a given cemetery, major alterations require SEQRA and NYSHPA review and the COB should conduct such review.
Further, PCCs are directed to survey their cemetery land in order to produce maps of the property labeling lots, plots, avenues, paths, alleys and walks. These maps must to be kept both in the PCC office and filed with the CB, available to the public in both locations. These maps would assist in an effort to preserve a given cemetery, offering such important information as the perimeter of the cemetery. However, the provision is limited in two respects: (1) PCCs are only required to survey and map, “from time to time”, so the maps available may not be current, and the regulations exempt “small cemetery corporations.” PCCs are further required to keep and furnish to the public upon demand a record of all burials in the cemetery including the date of burial, name, age and place of birth of the persons buried. Akin to the mapping requirement, these records can provide a treasure trove of historical information. However, this requirement also exempts small cemetery corporations. Both regulations should be revised to include yearly record-keeping requirements and provide no exemptions.
Section 1507 directs PCCs to establish permanent and current maintenance funds:
Every cemetery corporation shall maintain and preserve the cemetery, including all
lots, plots and parts thereof. For the sole purpose of such maintenance and preservation,
every cemetery corporation shall establish and maintain (A) a permanent maintenance
fund, and (B) a current maintenance fund. At the time of making the sale of a lot, plot or
part thereof, the cemetery corporation shall deposit not less than ten per centum of the
gross proceeds of the sale into the permanent maintenance fund. An additional fifteen
per centum of the gross proceeds of the sale shall be deposited in the current
maintenance fund. In addition to the foregoing, at the time the cemetery corporation
receives payment for the performance of an interment or inurnment, the cemetery
corporation shall collect and deposit into the permanent maintenance fund the sum
of thirty-five dollars.
The provision provides a comprehensive structure for protection of these cemeteries as the current maintenance fund, “shall be used and applied for the sole purpose of ordinary and necessary expenses of the care and maintenance of the cemetery,” while the permanent maintenance fund, “shall be held by the corporation as a trust fund, for the purpose of maintaining and preserving the cemetery.” However, this provision is severely limited as DOC records reflect that only 5% of the PCCs currently have perpetual care funds because many existed prior to the statutory duty to establish one. Further, the PCC authority to acquire real or personal property, absolutely or in trust, and utilize the same or income derived from the same to maintain or preserve the cemetery is highly under utilitzed. Accordingly, the NYS legislature and administration must acknowledge this essential façade of the strength of this fund structure and support such programs as mentioned above geared towards assisting these financially limited PCC in their respective preservation efforts.
In the event a monument is damaged due to vandalism, a PCC must notify the last known owner or other party interested party identified under the act, repair the monument from monies derived from a fund for such purposes if it exists, or, if none exists, have the discretion to make needed repairs from other corporate funds. A monument maintenance fund may be established by a PCC, subject to the approval of the CB, financed by an additional charge levied at the time of each interment. This provision is inherently weak as the establishment of such a fund is at the discretion of the PCC and it should be made mandatory.
Cemeteries incorporated under Article 15 also must contribute to the state cemetery vandalism, restoration, monument repair or removal and administration fund established under the New York State Finance Law. The provision requires, for each cremation or interment, that up to five-dollars be submitted to the fund that shall use the money for:
The maintenance of abandoned cemeteries previously owned by a corporation
incorporated pursuant to this chapter or the membership corporations law and
the repair or removal of monuments or other markers not owned by the cemetery
corporation, provided, however, that the CB may determine that circumstances
necessitate an unequal distribution due to specific needs and may provide for
- Private & Family Cemeteries
The NYC Not-For Profit Corporation Law provides guidelines for the creation of private cemeteries, noting that, “seven or more persons may become a private cemetery corporation by setting off for a private cemetery enclosed real property, to the extent of not more than three acres, and by electing at a meeting of the owners of the property ro be set off, at which not less than seven shal be present, three of their number to be directors, to hold office for five years, “ and continues that a famile cemetery may be created by, “any person, by deed or devise, [who] may dedicate land [not exceeding three acres] to be used exclusively for a family cemetery.”
Family cemeteries are governed by a brief statutory provision on preservation and maintenance, while the statute regarding private cemetery corporations is silent in these areas. In regard to family cemeteries, the statute reads:
The instrument dedicating such land shall describe the same, may appoint directors
to manage such cemetery, prescribe, or provide for making rules, directions or by-
laws for such management, direct the manner of choosing successors to the directors,
specify their qualifications, and grant to them and their successors money or personal
property as a fund for maintaining, improving, and embellishing the cemetery, in
accordance with the deed or will for the purpose of maintaining, improving, and
embellishing the cemetery, shall not exceed ten per centum of the net value of the
estate of the testator.
Similar to the regulations governing PCCs, this provision allows for the establishment of a fund for the maintenance of the cemetery, but unlike the former does not require it. Family cemetery corporations are also authorized to receive any bequest or transfer to utilize for the purpose of maintaining, improving and embellishing the cemetery. However, these maintenance and preservation provisions fall short of provisions the necessary protections for private and family cemeteries, and as such it is common that private and family cemeteries are often those that fall prey to neglect, and abandonment. To prevent such occurrences, the NYS legislature should amend the statute and impose compulsory requirements on the owners of these cemeteries that include the establishment of a board of trustees to oversee the cemetery and the establishment of a permanent maintenance fund for the care of the cemetery.
- Religious Cemeteries
The guidelines for religious cemeteries are outlined under the New York Religious Corporations Law. Though establishment of private trusts is permitted, the statute does not call for the mandatory establishment of funds for the maintenance and perpetual care funds analogous to those required for public cemetery corporations. Such required funds would eliminate the possibility of future restraints on the part of the religious corporation causing the neglect or abandonment of the cemetery.
- Municipal Cemeteries
Under NYS law, municipalities become charged with the care and preservation of cemeteries either through their creation by the municipality or by abandonment. Villages, towns, and counties all may create cemeteries. Following that creation, the standard of care adopted by the respective municipalities for these cemeteries is subject to a variety of differing reviews. Village cemeteries remain under the supervision and control of the CB. The county board of commissioners is authorized to adopt reasonable rules and regulations for, “the care, management and protection of the cemetery grounds.” It is important to note that the adoption of such rules and regulations is not be subject to review under the NYSHPA, but is subject to SEQRA review.
Following the creation of a town cemetery, after the sale of a lot the town board must, “expend the moneys realized from such sale in improving and preserving the particular burial ground from the sale of whose lots the moneys were received.” Alternatively, after the establishment of a cemetery by the county, the county commission of public welfare is to care for and supervise the grounds. Further, the county is directed to provide these cemeteries with, “adequate maintenance, perpetual care, ornamentation and markers. Abandoned cemeteries may fall under the care of either the town or county in which it is situated. Towns are also given preservation duties for abandoned cemeteries:
It shall be the duty of the town board to remove the grass and weeds from any such
cemetery or burial ground in any such town at least three times in a year from any
cemetery or burial ground, by whomsoever owned, in such town, where such control
is not vested by other provisions in the town or in trustees of other corporate body,
and provide for the preservation, care and fencing of any such cemetery and the town
board of any town must also provide for the removal of grass and weeds from all
cemeteries, other burial grounds, which are abandoned or not controlled by an
existing body and for the care of which there exists no special find or endowment.
To assist the towns in fulfilling this duty, the Legislature further authorized town boards to receive from any party and execute trusts for the maintenance of cemetery or plots therein for which the town is required to care. With regard to abandoned cemeteries within a given county, the board of supervisors is given the option of voting to determine if perpetual care, upkeep and maintenance are to be provided. SEGRA review would be required for such a vote.
When discussing the need for preservation of the historic cemeteries of NYS, it is vital to remind ourselves that these cemeteries provide us with a direct link to our past and are deserving of our stewardship. Currently, these historic resources are threatened due to the failure of our State government to comply with existing regulations and statutes. In addition to this mere compliance, consideration of the suggested statutory and regulatory revisions mentioned in this comment also should be provided. In the words of author Louis McMaster Bujold, “The dead cannot cry out for justice; it is a duty of the living to do so for them,” and in the case of stewardship of the historic cemeteries of NYS, we must preserve these sites both for the living and the dead.