This article was taken from the Columbus, IN Republic and permission was
granted to post here at this website.
James R. Hull, Ph.D.
Preserving history
Saturday, July 26, 2003
By Marla Miller, mmiller(a)therepublic.com
A block retaining wall and patchy saplings shade the sinkholes and illegible
headstones weathering away in Mitchell-Gaines Cemetery. The pioneer family
cemetery in Cross Creek Subdivision, surrounded by two houses and a privacy
fence, lost out on a law designed to protect burial grounds from intrusive
development. The little-known law took effect July 2000 and prohibits
developers and homeowners from disturbing the ground within 100 feet of a
cemetery without notifying the Department of Natural Resources Division of
Historic Preservation and Archaeology. Landowners must submit a development
plan to DHPA, which has 60 days to review it, said Jeannie Regan-Dinius,
cemetery registry coordinator for the DHPA. "It doesn't say you can't build
within 100 feet," she said. "You just have to work through our office."
Private citizens and preservation groups lobbied to get the law passed,
Regan-Dinius said. "Before the law, people could build right up next to
cemeteries," she said. "Our concern is there is somebody there and the area
needs to be treated with respect." She has compiled a preliminary list of
every cemetery in every county. The statewide cemetery registry will assist
in enforcing the law and help developers as they plan construction."It's
difficult to protect what you don't know is there," she said. "It's a
joint
effort between the cemetery registry and the law that's going to protect
these sites." Community awareness key The DNR is relying on county
planning and zoning departments to help spread the word. "The local
community has to help enforce this law," she said. "If someone comes in and
wants to develop near a cemetery, they need to say 'here's who you need to
contact and here's what you need to do.' "We're counting on local
citizens
to help keep us informed. If someone sees something they don't think is
right, they can give us a call and we'll go from there." Because the DNR
cannot prosecute, it is up to county prosecutors to go after offenders,
Regan-Dinius said. Disturbing a cemetery without a permit is a Class A
misdemeanor. It is considered a Class D felony if the person disturbs buried
human remains or grave markers while committing the offense. Locally,
development near a cemetery has been an issue once, around the time the law
took effect, said Roger Hunt, executive director of Columbus/Bartholomew
Planning Department. If a plat indicates a cemetery, it's an informal
policy to notify the applicant and DNR. "The state has the review
authority, so we can't really hold up the platting," he said. "But
informally, we would always get back with whoever submitted the plan." The
average citizen likely is unaware of the law, he said. It applies to
individual homeowners building a barn and to commercial developers building
a subdivision. The DHPA office also must be notified of certain cemetery
restoration work, such as probing for stones or erecting a new fence,
Regan-Dinius said. "If you're digging into the ground, you need to call
us," she said. "No matter what, it's useful to call us." Records also
at
issue In Bartholomew County, many smaller, rural family cemeteries have
been lost because they were left off property records. "If it's all buried
underground and there's no specific location, then it's a lost cemetery,"
Hunt said. "The record-keeping part of it is the most critical part. Get it
in black and white somewhere on the records. Ultimately, the deed is better
because it goes along with the sale." A second law passed in 2000 requires
that before a person may record any interest in property on which a cemetery
is known to be located, the property owner must record the deed in the
recorder's office. The bottom portion of the deed must state in capital
letters in bold type that the deed pertains to property that contains a
cemetery. The auditor's office is responsible for sending a copy of the
deed to the DNR and county commissioners. Vernon Jewell, former auditor and
current treasurer of Bartholomew County, started an in-house system to track
affected properties. "As it was brought to our attention, we started noting
it on property record cards," he said. "How are they going to comply with
the law if they don't know about it?" Property ownership cards are kept in
the auditor's office and list the current owner. They also show any transfer
of ownership, Jewell said. "It's a way of protecting buyers, but also a way
to help preserve that cemetery," he said. "That's why so many have been
lost. If you don't know, you could farm right over it or build a house over
it." Auditor Nancy McKinney, who took office in January, asked County
Attorney Grant Tucker to clarify her office's responsibility. "I'm waiting
for legal interpretation on how we should record on the documents," she
said. "We need to be very careful how we word something because what we do
here will end up being recorded. You don't just start putting things on a
deed without having a legal basis." When property that involves a cemetery
changes hands, the law puts the burden on the seller to make sure it gets
noted on the deed, Tucker said. "I can't tell that the auditor has any
affirmative duty to scrutinize every deed," he said. "There's nothing in
the
statute that requires the auditor to be the police of the concept. "I don't
know how they could verify that every single deed that came through did or
didn't have a cemetery. It's unreasonable and unmanageable."
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