Regulations Concerning Cemetery

A state may regulate the location of cemeteries through the exercise of its police power by statute directly regulating the location of cemeteries[i].  Such police power may be delegated to and exercised by political subdivisions or subordinate public corporations of the state, including municipal corporations or health authorities[ii].  With respect to governmental regulation of the location of cemeteries, health considerations are of paramount importance.  Moreover, the right to prohibit or limit the location of cemeteries within a certain district or area rests on the proposition that a burial within such district would be injurious to the public health[iii].  Some additional reasons for exercising the police power regarding the regulation of cemetery locations are:

  • the public welfare in general.
  • whether the establishment of a cemetery might disarrange the location of streets and highways and adversely affect civic enterprise.
  • the prosperity of the community.
  • the adequacy of existing cemetery facilities within a county.
  • the character of the community in general[iv].

The right to prohibit or limit the location of cemeteries within a certain district or area generally rests on the proposition that a burial within such a district would be injurious to the public health.  The regulations prohibiting the creation of new cemeteries or the interment of human bodies in established cemeteries located within a densely populated city area are generally valid, if they do not operate unreasonably or arbitrarily. However, similar regulations in sparsely settled localities have been held or recognized to be invalid, where it was not shown that the burials were calculated to impair the public health through their close proximity to housing[v].  The permission to establish a cemetery cannot be made dependent on the arbitrary will of the officers or governing body of that particular place.  The principles upon which a decision is to be made must be clearly established.[vi] Some statutes regulating the location of cemeteries, constituting special or local legislation are invalid[vii].

Regulations as to the location of cemeteries are valid if they:

  • do not constitute an impairment of the obligation of contract,
  • do not constitute a violation of the constitutional guaranties of due process or equal protection of the laws, or against the taking of private property for public use without just compensation, or
  • constitute improper delegation of authority[viii].

[i] Laurel Hill Cemetery v. San Francisco, 216 U.S. 358 (U.S. 1910)

[ii] Seale v. Masonic Cemetery Asso., 217 Cal. 286 (Cal. 1933)

[iii] Guwin v. Oakcrest Memorial Gardens, Inc., 294 Ala. 273 (Ala. 1975)

[iv] Alosi v. Jones, 234 Ala. 391 (Ala. 1937); Mensi v. Walker, 160 Tenn. 468 (Tenn. 1930); Beth Hamedrosh Anshe Calicia Congregation v. Brooklyn, 65 N.E.2d 298 (Ohio Ct. App., Cuyahoga County 1945);Pershing Industries, Inc. v. Department of Banking & Finance, 591 So. 2d 991 (Fla. Dist. Ct. App. 1st Dist. 1991).

[v] Bryan v. Mayor, etc., of Birmingham, 154 Ala. 447 (Ala. 1908)

[vi] Guwin v. Oakcrest Memorial Gardens, Inc., 294 Ala. 273 (Ala. 1975)

[vii] Philadelphia v. Westminster Cemetery Co., 162 Pa. 105 (Pa. 1894)

[viii] Laurel Hill Cemetery v. San Francisco, 152 Cal. 464 (Cal. 1907); Alosi v. Jones, 234 Ala. 391 (Ala. 1937); Scovill v. McMahon, 62 Conn. 378 (Conn. 1892); Gordon v. Commissioners of Montgomery County, 164 Md. 210 (Md. 1933).


Inside Regulations Concerning Cemetery