Agenda - Planning Commission - 08/05/2010

Home

Zoning Bulletin May 25, 20101 Volume 4 ( No. 10 the Baker and Shilling families scatter the ashes of deceased relatives on a "scenic hilltop overlook" (the "Site") on the Baker Property. The fami- lies placed memorial plaques at the Site. In 1991, Brian Baker ("Baker") acquired 67 acres of the Baker Prop- erty (the "Land"), including the Site. In 1999, without objection from Baker, Kathryn Shilling ("Shilling") buried at the Site an urn containing her mother's ashes. Shilling also placed a memorial plaque at the Site. In 2006, Shilling erected at the Site a 40-foot by 40-foot wrought -iron ornamental fence. Along the fence was a sign that read: "Baker Cemetery." In November 2007, Baker contracted to sell the Land to David R. Kelly. The contract was conditioned on Baker relocating the "Baker Cemetery" 500 feet "down the hill." Shilling opposed this move and filed a complaint in the circuit court. She asked the circuit court to prohibit Baker "from selling the land and from disturbing any part of the cemetery or removing any remains." She also asked the court to declare that the Site was a "cemetery" and to grant her and her relatives an easement to access the area. Baker countered that the Site had not been a lawful cemetery. He also maintained that since the Site had not been a cemetery at the time of the interment of the urn containing the remains of Shillings mother, that in- terment violated the county's Cemetery Ordinance. In 1984, the county had adopted a Cemetery Ordinance. The Cemetery Ordinance defined "cemetery" and required a special use permit to use land as a cemetery. Shilling also countered. She argued that the burial of the urn contain- ing her mother's ashes was a pre-existing, nonconforming cemetery use because the cemetery use at the Site was established when the first family ashes were scattered in 1949. Eventually, the court concluded that the "Baker Cemetery" had not been established as a cemetery prior to the enactment of the Cemetery Ordinance requiring special use permits for cemeteries. The court said this was because a "cemetery" required burial of the dead, and no burial occurred at the site prior to the interment of Shilling's mother's ashes. The court dismissed Shilling's action. Shilling appealed. The Court's Decision: Judgment of the circuit court affirmed. The Supreme Court of Virginia, agreeing with the circuit court, held that prior to enactment of the county's Cemetery Ordinance, the "Baker Cemetery" was not a legal cemetery. The court said this was because the spreading of cremains on property did not create a "cemetery," as de- fined under: the county's zoning ordinances; Virginia statutes; or com- mon law (i.e., other relevant sources of definitions of "cemetery"). The county's Cemetery Ordinance defined "cemetery" as: "[l]and used for the burial of the dead." The court found this required actual burial of a. dead body. © 2010 Thomson Reuters 7 155