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Open Trench Meets Open Grave

Columnist: Bob Andrews
August, 2013 Issue
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Bob Andrews
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I hold a cemetery manager license, number CEM 140, issued by the State of California. Does it matter? Well, state law prohibits burial of bodies (or even burial of cremated remains) outside an established cemetery. You have to jump through a lot of hoops to establish a private cemetery. One of the hoops is the hiring of a licensed cemetery manager.
 
I bring this up because Mendocino County Supervisor (and former Congressman) Dan Hamburg didn’t call me or, seemingly, follow any permit rules for a private cemetery before he reportedly buried his deceased wife on their ranch earlier this year. The Mendocino County Sheriff has opened a criminal investigation. In response, Hamburg has filed a lawsuit alleging that the burial rules are unconstitutional.
 
This stranger-than-fiction story raises interesting questions: Is it appropriate to break a law before challenging it? Does Supervisor Hamburg’s “privacy” trump state law on burials? Are the regulations nonsensical or too burdensome? Is there a special exception-to-the-rules for citizens with wealth and obvious political influence? Is it easier to ask forgiveness than permission?
 
There aren’t many licensed cemetery managers in California, about 280 of us in all. To apply, you must be at least 18. You must be a high school graduate or have a GED. You must not have committed certain crimes that would disqualify you. You must pay a fee of $800 and pass a rigorous exam. And even after you meet all of those qualifications, you cannot actually manage a cemetery until you have at least two years of cemetery work experience. You must renew your license annually by payment of an $80 fee. The exam, by the way, is now available six days per week at 17 sites throughout California. On average, fewer than five people take the exam each month.
 
According to state records, Mendocino County has only two licensed cemetery managers. Napa County had five (but one license has been cancelled). Marin County had five, but one license has been cancelled and one other is listed as delinquent. Sonoma County had 13 listed cemetery managers, but one license has been cancelled and two others are delinquent.
 
The costs and procedures to become a licensed cemetery manager are nothing compared to those required to establish a private cemetery. The applicant, by the way, must be a corporation. To obtain what’s called a Certificate of Authority from the state, you must first meet local city or county planning requirements. Imagine the costs involved with submitting a land use proposal for something as unique as a cemetery. One private family applicant in Napa County estimated that obtaining a use permit at the county level cost them $8,000. It could cost much more, depending on the land you choose for a cemetery, the current zoning, the number of graves you intend to provide and a powerful unknown factor: objections by neighbors. You also need to have a civil engineer prepare a very accurate plot map. And you need to establish what’s known as an “Endowment Care” trust, funded initially with at least $35,000. There are more legal fees involved with that process, as I’m sure you can imagine.
 
Once you’ve obtained local approval, you need to file an application with the State Cemetery and Funeral Bureau. Filing fee: $400. After a thorough review, the bureau schedules an onsite inspection by a field representative. You need to meet a laundry list of requirements at the time of the inspection.
 
You need a sign of specific size at the entrance to your private cemetery, noting it’s an Endowment Care property and giving certain other information. You need a sales “contract” even if you have no intention of selling graves. You need a document to be used to obtain authorization for interments and a separate document to obtain written consent for disinterments. You need printed rules and regulations for your cemetery and a copy of the Consumer Guide to Funeral and Cemetery Practices. You must present your accurate plot map and show you have your cemetery manager’s license on file. You need to have completed all proposed landscaping of the cemetery before the inspection. There are other requirements if you intend to sell any graves. After you comply with all the rules and get your permit, there will be quarterly filing requirements and annual inspections of your private cemetery. As each grave is used, you will need to deposit additional money in the Endowment Care trust.
 
Those are the rules. Supervisor Hamburg went ahead with a burial without complying with them. His lawsuit alleges there’s “no compelling governmental interest” in limiting private burials and that the regulations violate the right to privacy. California disagrees and doesn’t want individuals making their own decisions, for instance, about whether a proposed burial site is situated far enough from water sources. I suspect law enforcement officials generally oppose unregulated burials for a number of other reasons as well.
 
Let’s get down to the nitty gritty here. The Hamburgs have a 46-acre parcel that might be appropriate for a private cemetery, but precious few of the rest of us do. Those who want a private cemetery can probably afford the cost of compliance with the permit process or the cost of a lawyer to oppose it. A newspaper article on the lawsuit states that Mrs. Hamburg “had long talked of being buried on the 46-acre parcel.” That means there very well may have been plenty of time to comply with existing local and California laws to establish a private cemetery. Other people, including a prominent wine family in Sonoma County and two families in Napa County, have complied with the laws. Is Supervisor Hamburg indirectly saying that these other families were stupid not to have buried first and let questions be asked later?
 
Supervisor Hamburg represents government. Is it appropriate for him to choose to ignore the law?


 

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