International Municipal Lawyers Association - Local Government Blog

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

I am prompted to report on this issue by a news item last week. A Baptist minister in Uniontown, Pennsylvania, buried his 18-year-old son, who died three days after a car crash on July 12, in the backyard of the pastor’s church.  While state law doesn’t prohibit this, some county and local ordinances do, and this county, Fayette County, only allows burials on large parcels zoned for agricultural use.  The church has only five acres and is in a residential zone.

I believe this is the church, courtesy of bing.com

More detailed coverage is available in the Pittsburgh Tribune-Review. Their article quotes the county planner as saying 50 acres are required.  I checked the regulations. It says 50 acres. The pastor says he will apply for a variance.  What will be the hardship claimed?  The church faces fines of $500 a day.  A court hearing is on December 7^th.  It’s a sad, tough case.

The question really is what is an appropriate standard for small, informal burial grounds?  When was the last time you looked at your burial regulations and had a discussion about them?  Do they prohibit scattering of cremated remains and memorial gardens for such remains?  If so, why?  There may be good reasons, such as the ease in removing and relocating remains.  See the ordinances cited below.

The Pennsylvania Association of Township Supervisors has some guidance on-line, but no suggested regulations.   Click here.  People in Mountain Home, Idaho, talked about these issues last year.  Elmore County, where Mountain Home is located, changed its regulations to allow backyard burials under certain conditions. Go here to read it.  It has the basics and is worth considering.

The New York Times had a detailed story on home burials this last summer.   Here’s an attractive homemade coffin pictured in that article that you can use as a bookcase until needed.

 Courtesy The New York Times

These situations are not all that unusual.  Last year, a woman buried her husband in the back yard of their home in Chester, Connecticut.  Elsie Piquet and her husband pledged to each other they would never part, even after death.  He died, but she found out that unfortunately there were no available grave sites side-by-side in Chester.  So, she got a local funeral director and had him bury the casket in their backyard.  Here, courtesy of bing.com, is an aerial of the house at 28 South Wig Hill Road.  Look carefully…

Chester is a rural town and it reminds me of Vermont.  Now there’s a state that knows something about backyard burials.  The Vermont Department of Health website has this guidance:   “Families in Vermont may care for their own dead [1973 Assistant Attorney General opinion] and this includes transporting the deceased, burial on private property, and/or cremation. Vermont law does not require embalming, but you should consider weather and reasonable planning so that disposition is carried out in a timely manner.” See http://healthvermont.gov/vadr/burial/home.aspx.

Here’s some other handy guidance:

“If you live outside the village or city limits, you can usually create a family burial ground on your own land. The site should be 150 feet from a water supply (100 feet from a drilled well) and 25 feet from a power line. Avoid areas with a high water table. It’s also a good idea to bury at least 20 feet from the setback on your property.” 

I can see why it’s not a good idea to bury a person near a drinking water well, but tell me what the issue is with the power line unless it’s a backhoe hitting it?

Note the mention of weather.  My family is from Vermont, I have a home there, and I teach at Vermont Law School.  Let me tell you, no where else in this country do people spend more time on the weather than in Vermont.  You really should listen to Mark Breen and Steve Maleski’s “Eye on the Sky” weather reports on Vermont Public Radio with web streaming.  Go to this site, look for the box entitled “Options” and click on “Eye on the Ski Forecasts.”  Then click on “listen,” then go to “comprehensive forecast” and click on “listen.”  I promise, it will be worth the effort.  You’ll get three credits in meteorology just for listening.  See also http://www.vermontguides.com/2002/11-nov/eyeonthesky.htm.

The zoning enforcement officer issued a cease-and-desist order.  The case went to trial.  Elsie Piquet lost.  The court found that the Chester zoning regulations are permissive in nature and those uses not specifically permitted are prohibited.  This type of regulation is to be compared with regulation characterized as prohibitive zoning “where all uses are allowed except those expressly prohibited.”  Permissive zoning regulations are the predominant type in Connecticut.

The court granted the town’s motion for summary judgment in part on the interpretation of the regulations and in part because the plaintiff did not submit any evidence in support of her claim that the burial should be considered an accessory use.   Click here for a copy of the decision.

I asked the town’s attorney, my friend John S. Bennet, of Gould, Larson, Bennet, Wells and McDonnell in Essex, Connecticut, about the status of the case.  He replied: “It turns out the case is not dead yet. An appeal has been timely taken. I have the paperwork buried here someplace.  Let me know if you need any of it and I will try to exhume it from the file for you and send it along.”

“Natural burial” is emerging – sustainability, if you will, when life is no longer sustainable.  Natural burial began, according to the Centre for Natural Burial, in the United Kingdom in 1993.  See http://www.naturalburial.coop/.

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

My favorite movie is The Wizard of Oz, so I couldn’t help but notice the decision of the Kansas Supreme Court yesterday on a wind energy issue in Wabaunsee County.  Zimmerman v Wabaunsee County.

Wabaunsee County is in the eastern part of the state 30 miles west of Topeka.  In 2008 it had 6,922 people in an area of 791 square miles.  The county lies within the Flint Hills, a six million acre grassland ecoregion of hills largely of limestone and shale.  Here is the Flint Hills area in Kansas.  “WB” is Wabaunsee County.

The Flint Hills extend into Oklahoma where they are known as the Osage Hills.

The soil is no good for growing crops, so ranching has predominated.  Today, the largely native Flint Hills Tallgrass Prairie, most of it unplowed, is one of the last intact preserves of the ecosystem which once was characteristic of the Midwest just east of the Great Plains.  There’s a Tallgrass Prairies National Preserve in the Flint Hills.

The Flint Hills not only has plenty of steady wind, but it also has a good infrastructure of transmission lines – thus, the interest in commercial wind power.

J.W. Prairie Windpower, the Lawrence subsidiary of a German company, proposed a wind farm. What followed were 54 public hearings with the majority of the people attending opposing the project because it would adversely affect the views.  The County adopted these changes to its ordinance: 

207. Wind Energy Conversion System (WECS). The combination of mechanical and structural elements used to produce electricity by converting the kinetic energy of wind to electrical energy. Wind Energy Conversion systems consist of the turbine apparatus and any buildings, roads, interconnect facilities, measurement devices, transmission lines, support structures and other related improvements necessary for the generation of electric power from wind. 

208. Commercial Wind Energy Conversion System: A Wind Energy Conversion System exceeding 100 kilowatt or exceeding 120 feet in height above grade, or more than one Wind Energy Conversion System of any size proposed and/or constructed by the same person or group of persons on the same or adjoining parcels or as a unified or single generating system. (Commercial Wind Energy Conversion Systems are specifically prohibited as a use in Wabaunsee County.)

210. Small Wind Energy Conversion System. A wind energy conversion system consisting of wind turbine, a tower, and associated control or conversion electronics, which has a rated capacity of not more than 100 kilowatt, which is less than 120 feet in height and which is intended solely to reduce on-site consumption of purchased utility power.

30. Commercial Wind Energy Conversion Systems are not a use that may be approved or permitted as a Conditional Use in Wabaunsee County and are specifically prohibited.

The resolution in support of the amendments explained the rationale for the changes prohibiting commercial wind power anywhere in the county:

The basis of the amendments to the Zoning Regulation is that Commercial Wind Energy Conversion Systems would not be in the best interests of the general welfare of the County as a whole. They do not conform to the intent and purpose of the Zoning Regulations. In light of the historical, existing and anticipated land uses in the County, they would adversely affect the County as a whole. They would be incompatible with the rural, agricultural, and scenic character of the County. They would not conform to the Wabaunsee County Comprehensive Plan, including the goals and objectives that were identified by the citizens of the County and incorporated as part of the Plan. They would be detrimental to property values and opportunities for agricultural and nature based tourism. Each reason stands on its own. This motion is based upon what has been presented at public hearings, public meetings, letters and documents that have been produced, as well as experience and personal knowledge of the issues involved.

The Kansas Supreme Court, in a unanimous decision which may be the first in the country to allow a local government to completely ban commercial wind power, upheld the ordinance prohibiting the wind farm construction on aesthetic grounds, finding it reasonable based on related objectives of protecting ecology, flora and fauna of the Flint Hills.

Here is the Kansas Judicial Branch report of October 30 on the decision.

Justice Lawton R. Nuss, writing for the court, noted that the Wabaunsee County Commission had identified these adverse effects of commercial wind farms:

The Flint Hills of Kansas, of which Wabaunsee County is a part, contain the vast majority of the remaining Tallgrass Prairie, which once covered much of the central United States and which is considered one of the most endangered ecosystems in North America.
Wind farms could have a detrimental effect on the ecology of the area, affecting prairie chicken habitat, breeding grounds, nesting areas, feeding areas and flight patterns. 
Wind farms would not be in the best interest of the general welfare of the county as a whole based on aesthetics, size and scope of the complexes needed for them and their placement on the ridge lines of the county, which make them “objectionable and unsightly.”
Wind farms would be detrimental to property values and opportunities for agricultural and nature based tourism.  The Flint Hills are unique in their ecology, heritage, and beauty.

The court found the ordinance reasonable when it assessed the totality of these permissible governmental objectives, the will of the people, and the wind farms’ lack of conformity with the county’s Comprehensive Plan.

The court left open the question of whether the prohibition might be a taking.  The County Board has argued the “whole parcel” rule – the Board thinks the owners of the wind rights should not be able to segment the wind rights from all of the other rights when they determine the impact on value.  If you are not familiar with the law of the relevant parcel, you may wish to read this article I wrote a few years ago: Rules for the Relevant Parce (double page version).

There is also a Commerce Clause claim still outstanding because the ordinance only allows wind power systems “to reduce on-site consumption of purchased utility power,” essentially limiting them to personal use rather than production and sale of power to others.  Briefs are due on both issues December 11 and oral argument will be on January 27.