Vantage Point: Taking on a Dead Issue

Cemeteries: graveyards, burial grounds, areas set apart for internment of the dead.

That’s a generic definition, but do we know a cemetery when we see one? What kinds of protection from disturbance do the bones of the deceased have? What rights do the living have to visit them, and what rights do landowners have to bar those visitors?

It is sometimes difficult to know if in fact a burial site exists where stones are found. I recall finding an old headstone in a hedgerow on a farm and asking the farmer about it. Oh, he replied, it had been lying in the field in his way so he just tossed it aside. That isn’t always the treatment of the dead. In older cities like Philadelphia, development and excavation come to an immediate halt when human bones turn up. There may be no headstones or other markers in what were “potter’s fields” in years past, places where those who either were too poor to have a proper burial or no family to claim them might have been interred. The buried might have been slaves, prisoners, or foreigners. In any event, once found, the remains should be treated with the same respect as any other and known individuals. In some Philadelphian instances this has meant installation of markers identifying the site as historic, and sometimes it has meant removal and reinternment elsewhere. But known cemeteries and potter’s fields are left intact and respected as final resting grounds.

What happens if there is a dispute about whether or not a place really is a cemetery? If it is a cemetery, who has rights to visit? A situation in Scott Township in Pennsylvania’s Lackawanna County is on its way to the United States Supreme Court to address a few Constitutional nuances of this question. Rose Mary Knick is suing the municipality for a taking of her private rights resulting from a 2012 ordinance granting public access to cemeteries during daylight hours, whether those sites are on public or private land, and imposing daily fines on noncompliant landowners. In April 2013, a Township code enforcement official came onto Ms. Knick’s 90-acre tract under authorization of the ordinance, and upon observing some grave markers, issued her a violation notice.

The entry to look for gravestones may not have been happenstance. Robert Vail had been researching ancestral obituaries in 2008 when he found information indicating that one predecessor in particular was said to have been buried on the McLaughlin Farm, now owned by Ms. Knick. Mr. Vail believes other ancestors may have been buried there as well, and says his only interest is in going to visit and honor his family members, one of whom may be a Revolutionary War veteran. Ms. Knick, who bought the land in 1970 to raise horses, acknowledges that there are stones out there in the fields. She says she has no idea how they got there and questions whether there are bodies beneath them. She claims Mr. Vail never contacted her about visiting the site but believes his family may be “politically connected” since she first heard of his claim in 2008 during discussion at public meetings.

Ms. Knick took immediate action after that first violation notice, filing for an injunction and relief in the Lackawanna County Court of Common Pleas. That court refused to issue a decision, stating it was not the proper venue for the kind of relief Ms. Knick sought. So she filed with the US District Court for the Middle District of Pennsylvania, claiming that Scott Township violated the Fourth, Fifth, and Fourteenth Amendments to the US Constitution in maintaining a system of warrantless inspections and that the ordinance took her property without just compensation. When that court dismissed all counts of her complaint, Ms. Knick appealed to the US Court of Appeals for the Third Circuit.

In its review of Ms. Knick’s suit against Scott Township, the Third Circuit Court noted that “[t]he Township’s ordinance is extraordinary and constitutionally suspect.” Nevertheless, it could not rule on that ordinance until Ms. Knick had exhausted Pennsylvania’s inverse condemnation procedures. And so she has petitioned for and won a hearing before the highest court in the land.

What she hopes the US Supreme Court will settle is how many hoops one must leap through to have a “ripe” claim. Each of the federal courts has referred back to a Tennessee case, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, a 1985 US Supreme Court decision that says the injured party must first seek just compensation through appropriate state-level channels in eminent domain suits before pursuing a Fifth Amendment takings claim in federal court.

As surveyors, we encounter some less than clear situations in the field. We find grave markers but don’t know if they mark actual graves. We find headstones planted in a seemingly organized manner but don’t know if this is a family plot or part of an old church tract. Sometimes we don’t even know if it is a pet plot. It’s worth checking local ordinances and state laws to see how such areas should be treated, after making sure to locate whatever it is we find and informing our clients.

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.

Sidebar:
For those who want to know more, read on:
Images posted for “Vail Cemetery”: https://bit.ly/2LiGoHS

The Third Circuit Court of Appeals decision: https://bit.ly/2LvtGEZ

The brief opposing Knick’s petition to the US Supreme Court in her appeal of the Third Circuit decision: https://bit.ly/2JHj9Sh

The case relied upon by the courts in denying Knick’s claims: Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 1985: https://bit.ly/2LCHVod

About the Author

Wendy Lathrop, PS, CFM

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.