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It’s not a cemetery unless it contains a dead body

The Supreme Court of Virginia split 4-3 today on the issue of just what constitutes a cemetery.

In a case from Rockingham County, the lower court and the Supreme Court majority held that a site can’t be a cemetery without the burial of a dead body. The circumstances in Shilling v. Baker suggest that’s much too narrow a definition, the minority said.

The ashes of an owner of a scenic hilltop overlook had been scattered on the property in 1949, and the family had erected a memorial plaque there. Over the years, the ashes of additional family members were scattered and more plaques were placed on the site.

In 2007, the family member who owned the site contracted to sell it on the condition that the “cemetery” be located 500 feet down the hill. Another family member objected and contended that the cemetery was established as a pre-existing, non-conforming use before a county zoning ordinance that governed cemeteries was passed.

Scattering ashes does not create a cemetery under either the common law, state statutes or the county ordinances, the majority concluded.

The minority said state law does not suggest that burial of remains is a prerequisite for a valid cemetery. “[T]he holding of funeral ceremonies, the placing of memorial plaques, the scattering of cremains in a specific area, and the continued upkeep and treatment of the area as the family cemetery, including referring to it as such, all support the conclusion that the ‘Baker Cemetery’ is and has been since 1949 a valid cemetery.”

By Alan Cooper

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