|Legal Opinion: |
Text of Document: January 2, 1997
You have the following question: Is there any state law that prohibits the location of a cemetery within two miles (or any other distance) of a city? As far as I can determine, the answer is no.
During our telephone conversation on December 30, 1996, you said you had been told by someone familiar with the cemetery business that such a law was passed during the 1980s, and that it may have been introduced by Sen. Ford.
I have researched all the laws dealing with cemeteries, dead bodies and zoning, and find no such law. However, I think I have found an old law to which the person familiar with the cemetery business probably had reference. Acts of Tennessee for 1875 permitted the incorporation of various forms of corporations. Section 9 of that act permitted the incorporation of cemeteries, and that:
The said corporation shall have the power to purchase land, not exceeding two hundred acres, situated not less than one mile from the corporation line of a town containing fifteen thousand inhabitants, nor less than two miles from the corporation line of a town containing a greater number of inhabitants, to be used as a cemetery or burying-ground forever....
That act has been amended a number of times since 1875, and ultimately became Tennessee Code Annotated, section 46-2-101. Among other things, some of the amendments to Acts of Tennessee for 1875, Section 9, changed the above distance regulations, so that by 1980, that statute read as follows:
Cemetery companies shall have the power to purchase land, not exceeding two hundred (200) acres, situated not less than one (1) mile, to be measured by way of the most direct public thoroughfare to the said land, from the corporation line of a town containing fifteen thousand (15,000) inhabitants, and not less than one mile and a half (1-1/2), to be measured by the way of the most direct public thoroughfare to said town, from the corporate line of a city or town containing a greater number of inhabitants, to be used as a cemetery forever....and provided further, that any land may be purchased and used as a cemetery at any place within or without said corporate line, after the proposed location shall have been approved by resolution of the governing body of said city or town.
But Public Acts 1984, Chapter 585, deleted the distance regulations entirely. That Act was the product of Senate Bill 1344, by Ford, which was substituted for House Bill 1393, by Rhinehart. Presently, with respect to any distance regulations, Tennessee Code Annotated, section 46-2-101 et seq. reads:
A cemetery company has the power to purchase land, not exceeding two hundred (200) acres, to be used as a cemetery forever....provided, that any land may be purchased and used as a cemetery at any place within a town or city after the proposed location shall have been approved by resolution of the governing body of such town or city.
It was alleged in Valley Forge Civic League v. Ford, 713 S.W.2d 665 (Tenn. App. 1986), that Sen. Ford procured the passage of Public Acts 1984, Chapter 585, by fraud, and that the fraud enabled Ford and his partners to obtain the resolution from the Memphis City Council to develop a certain cemetery within the city. However, the Court could find no reason that such a fraud would have benefited Ford:
We have difficulty following plaintiff's argument as to the alleged benefit to defendant Ford by virtue of the amendment. The statute prior to the amendment provided "that any land may be purchased and used as a cemetery at any place within or without said corporate line, after the proposed location shall have been approved by resolution of the governing body of such city or town." [Emphasis supplied (by the court.)] From our reading of the statute as it existed prior to the amendment and as it exists after the amendment, it is clear that any land in any place within the city could be used for a cemetery after approval was obtained from the governing authority. The land in question is within the City of Memphis. Thus the Act amending T.C.A. section 46-2-101 (1980) did not change any requirements to which Ford and his partners were subject prior to the amendment. As we read the pre-amendment statute, Ford and his partners could have used the same land as a cemetery "after the proposed location shall have been approved by resolution of the governing body of such city or town." T.C.A. 46-2-101 (1980). The amending Act had nothing to do with the application for the planned development, nor to the city council’s action thereon. [At 668.] [Emphasis supplied by the court.]
The Court did consider the possibility that the Act could be read to provide that 200 acres or less could be used anywhere as a cemetery without the approval of anyone. However, said the Court, that was apparently not the construction put on the Act by Sen. Ford; he sought approval from the Memphis City Council for his planned cemetery even though it was only 26.3 acres. The Court itself also rejected such a reading of the Act. Because of the need for land use planning within cities of the state, reasoned the Court, "we are inclined to our first interpretation of the amending act which makes the amending act irrelevant to the proceedings before the city council in this case." [At 668.] In other words, the Court interpreted the act to require that cemeteries of less than 200 acres also required the approval of the governing body of the city.
It is worthwhile to note here that with respect to cemeteries located within a city, the Tennessee Attorney has twice opined that Tennessee Code Annotated, section 46-2-101 takes precedence over Tennessee Code Annotated, section 13-7-201 et. seq., which requires that amendments to zoning ordinances and maps be preceded by notice and public hearing, submission to the planning commission, etc. [OAG 85-288 and 84-287.] Those opinions pre-date Valley Forge Civic League, but that case appears to impliedly support them.
I have gone beyond answering your question to give you an idea of what zoning issues are involved in Tennessee Code Annotated, 46-2-101 and in Valley Forge Civic League. I hope my analysis of those issues is helpful.
Sidney D. Hemsley
Senior Law Consultant