Chapter 46 - Cemeteries

Part 1 - Abandoned Public Cemeteries
Expand

Article I - County to Assume Possession and Control of Abandoned Public Cemeteries

46-1. Title

This Part 1 shall be referred to as the "Henderson County Ordinance Regulating Abandoned Public Cemeteries.

46-2. Authority

This Part 1 is enacted pursuant to the authority of N.C.G.S. Chapter 65, Articles 1 and 10, N.C.G.S.153A- 149, N.C.G.S. 153A, Article 16, and N.C.G.S. 153A-169. This Part 1 shall be interpreted in accordance with any sections of the N.C.G.S. which, by their terms, limit the authority or responsibility of Henderson County with respect to abandoned public cemeteries.

46-3. Jurisdiction

This Part 1 shall apply in the unincorporated areas of Henderson County.

46-4. Definitions.

The following terms are defined for purposes of this Chapter:

  1. Abandoned Cemetery - A cemetery for which there is no ascertainable person or entity responsible for maintenance and care, and which has not actually been maintained or cared for so that it has fallen into a state of disrepair as evidenced by overgrown foliage, broken grave markers, loss of grave identity, or such other circumstances indicating neglect or abandonment.
  2. Public Body - A County, municipality, or other governmental entity; or a quasi- governmental entity established by a governmental entity such as an authority, a district, a public hospital, a County home, etc.
  3. Public Cemetery - A cemetery that:
    1. Is or was last owned or controlled by a public body without any relinquishment of ownership or control by said public body; or
    2. Has been dedicated for use by the public generally by an express or implied dedication, and accepted by the public expressly by an act of a public body or impliedly by the actual use of the cemetery by the general public.
46-5. List of Abandoned and Public Cemeteries.

The Board of Commissioners shall prepare and maintain a list of all public cemeteries in Henderson County located outside of the limits of any incorporated towns and cities and not established and maintained for the use of an incorporated town or city, together with the names and addresses of the persons in possession and control of the same. To such list shall be added a list of those public cemeteries identified which are also abandoned.

46-6. Possession, Control and Maintenance.

The Board of Commissioners shall assume possession and control of all cemeteries identified as abandoned public cemeteries in the list prepared and maintained pursuant to § 46-5 above or which are found by the Board to be abandoned public cemeteries pursuant to an application filed in accordance with § 46-7 below. The Board of Commissioners shall cause to be taken all appropriate actions to care for and maintain all abandoned public cemeteries for which possession and control is assumed pursuant to this Part 1, shall see that their boundaries and lines are clearly laid out, defined and marked, and shall take proper steps to preserve them from encroachment. Upon the assumption of possession and control of an abandoned public cemetery by the Board of Commissioners, no further burials shall be allowed in such cemetery.

46-7. Identification of Abandoned Public Cemeteries

Any person or entity may make application to the Board of Commissioners requesting that the Board of Commissioners assume possession and control of an abandoned public cemetery located in the unincorporated areas of Henderson County. Such application shall be made on a form approved by the Board of Commissioners, but shall, at a minimum, include the following information:

  1. Name of applicant.
  2. Special relationship to any of the deceased buried in the abandoned public cemetery or other special interest, if any.
  3. Location of abandoned public cemetery, including address, parcel identification number as shown on the Henderson County Geographical Information System (GIS), and a GIS map showing approximate location of the abandoned public cemetery on the parcel identified.
  4. Name of last person or entity owning or controlling the property on which the abandoned public cemetery is located.
  5. Sufficient evidence to support a finding by the Henderson County Board of Commissioners that the cemetery which the Board is requested to assume possession and control over is an abandoned public cemetery as defined by this Part 1.

Article II -Abandoned Public Cemeteries in Possession and Control of Henderson County

46-8. Access.
  1. Any of the following persons may request access to any property owned or controlled by Henderson County to discover, restore, maintain, or visit an abandoned public cemetery:
    1. A descendant of the person whose remains are reasonably believed to be interred in the grave;
    2. A descendant's designee; or
    3. Any other person who has a special interest in the grave or abandoned public cemetery.
  2. Such request shall be made to and may be granted by the County Manager or his/her designee.
46-9. Denial of Access.

In the event a request made in accordance with §46-8 above is denied by the County Manager or his/her designee, the person making the request shall proceed in accordance with N.C.G.S. 65-101 and N.C.G.S. 65-102. There shall be no appeal to the Henderson County Board of Commissioners, and the County Manager, or his/her designee, shall be authorized to appear on behalf of Henderson County in any proceeding brought in accordance with N.C.G.S. 65-101 and N.C.G.S. 65-102.

46-10. Duties and Responsibilities

The Henderson County Manager, or his/her designee, shall have the following duties and responsibilities pursuant to this Part 1:

  1. Receive applications submitted pursuant to §46-7.
  2. Review and make a recommendation to the Board of Commissioners regarding whether the cemetery which the Board of Commissioners is requested to assume possession and control over is an abandoned public cemetery as defined by this Part 1.
  3. Submit to the Board of Commissioners for addition to or deletion from, as appropriate, the list prepared and maintained pursuant to §46-5 above any cemeteries which are required by §46-5 to be added to such list.
  4. Submit the list, and additions to or deletions from the list prepared and maintained pursuant to §46-5, to the North Carolina Secretary of State on behalf of the Board of Commissioners.
  5. Receive and respond to requests for access to abandoned public cemeteries which are in the possession and control of Henderson County pursuant to §46-8; participate on behalf of Henderson County in proceedings brought under N.C.G.S. 65-101 and N.C.G.S. 65-102.
46-11. Through 46-20. (Reserved)

Part 2 - Removal of Graves
Expand

Article III - Removal of Graves from Abandoned Cemeteries

46-21. Title.

This Part 2 shall be referred to as the "Henderson County Ordinance to Regulate the Removal of Graves from an Abandoned Cemetery."

46-22. Jurisdiction.

This Part 2 shall only apply in the unincorporated areas of Henderson County.

46-23. Scope.

This Part 2 is enacted in order to comply with the provisions of N.C.G.S. 65-106 with regards to a request for the removal of any grave by any person, firm, or corporation in accordance with N.C.G.S. 65-106 only. This Part 2 shall not affect the ability of any person not covered by N.C.G.S. 65-106 to remove any grave

46-24. Definitions.

The following terms are defined for purposes of this Part 2:

  1. Abandoned Cemetery Or Burying Ground - A cemetery or burying ground:
    1. Which is no longer kept and preserved as a resting place for the dead and is without anything to indicate the existence of graves;
    2. In which all graves have been removed; or
    3. Which has been so neglected as to entirely lose its identity as such, and is no longer known, recognized and respected by the public as a cemetery.
46-25. Consent Required.
  1. Before any person, firm, or corporation, which owns land on which an abandoned cemetery or burying ground is located may effect the disinterment, removal, and reinterment of any grave(s) or grave markers within the abandoned cemetery or burying ground, such person, firm or corporation must obtain the prior consent of the Henderson County Board of Commissioners. The Board of Commissioners may consent to such a request for the disinterment, removal and reinterment of a grave or grave marker if the following is demonstrated by the applicant:
    1. The cemetery or burying ground is an abandoned cemetery or burying ground as defined by §46-24.
    2. The applicant demonstrates a readiness to comply with the requirements of N.C.G.S. 65-106.
  2. Any person, firm, or corporation requesting consent of the Board of Commissioners pursuant to this §46-25 and/or N.C.G.S. 65-106 must make application to the Board of Commissioners. Such application shall be made on a form approved by the Board of Commissioners, but shall, at a minimum, include the following information:
    1. Name of applicant.
    2. Location of abandoned cemetery or burying ground, including address, parcel identification number as shown on the Henderson County Geographical Information System (GIS), and a GIS map showing approximate location of the abandoned public cemetery or burying ground on the parcel.
    3. Evidence that applicant is the owner of the property upon which the abandoned cemetery or burying ground is located.
    4. Sufficient evidence to support a finding by the Henderson County Board of Commissioners that the cemetery or burying ground in which the grave(s) or grave marker(s) are located is an abandoned cemetery or burying ground as defined by this Part 2.
  3. Upon receipt of the consent of the Board of Commissioners, if given, the applicant shall proceed in accordance with N.C.G.S. 65-106.
46-26. Conflict with Other Laws.

Nothing in this Part 2 shall limit the ability of or replace the duties and obligations of any person, firm, or corporation in effecting the disinterment, removal and reinterment of a grave or grave marker pursuant to other applicable laws; however if the terms of this Part 2 apply, compliance with this Part 2 shall be required in addition to the requirements of such other applicable laws.

46-27. Violations and Penalties.

Any person violating any provision of this Part 2 shall be subject to the penalties set forth in the Henderson County Code, Chapter 1, General Provisions, Article II.

46-28. Through 46-45. (Reserved)