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Original Author: Hemsley, Sid
Date of Material: 03/14/2008

Cemeteries--Laws and regulations
Zoning--Laws and regulations--Tennessee

Regulation of Cemeteries

Reviewed Date: 07/21/2021
MTAS analyzed the question of whether cemeteries are subject to zoning regulations or regulation by the city council.

March 14, 2008

Dear City Attorney:

With respect to my 1997 letter on cemeteries, which you have, note that in Valley Forge Civic League v. Ford, 713 S.W.2d 665 (1986), it appears that the City Council granted the variance for the cemetery. It may be that under that city's zoning ordinance variances go from the BZA to the city council. I will check that shortly. But it is clear that the court in that case had no problem with the city council granting the variance under what then was Tennessee Code Annotated, '46-2-101, and is now '46-8-101.

That statute also came up in Sullivan v. Harpeth Development Corporation, 401 S.W.2d 195 (1966). In that case:

The Chancellor found that this statute granted to the governing bodies of cities the right to approve or reject land for use as a cemetery, but did not confer on appellants standing to sue to prevent an attempted use. The Chancellor took the view that the statute did not authorize a private individual to bring suit to restrain a defendant from conducting a business without obtaining the required permission of the city's governing body. [At 196]

Apparently, the plaintiffs were property owners near the land being developed as a cemetery, and the cemetery company had not gotten the approval of the governing body of the city for the cemetery required under Tennessee Code Annotated, '46-101 [now 46-8-101]. The Tennessee Supreme Court upheld the chancellor. In doing so, it said this:

T.C.A. s 46-101 is a part of the statutes dealing with the organization of cemetery corporations, their powers and functions. It is in no way associated with any zoning statute or statutes authorizing zoning regulations. [Emphasis added by me.] The caption of this Section reads, >Powers of Cemetery Corporations.=After full and critical comparison of the cemetery statutes as against the statutes with respect to zoning, we are of the opinion that the Court below is correct in its view that cases relied upon by appellants, City of Knoxville v. Peters (1945), 183 Tenn. 93, 191 S.W.2d 164; Garrou v. Teaneck Tyron Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R. 1125, recognizing the right of relief of private citizens to relief against defendants who have violated zoning ordinances are not apposite to this case.

Rather, the present case is one in the nature of a Quo Warranto proceedings, in that the statute under which it is brought is one dealing with corporate powers. It is well settled that such a suit must be brought in the name of the sovereign and no individual has standing to bring such a suit in his own name. See City of Fairview v. Spears (1962), 210 Tenn. 404, 359 S.W.2d 824. [At 197-98.]

Further, continued the Court:

It is also the contention of the appellee that even if the appellants had standing to sue, the result reached is nevertheless correct. The zoning regulations in effect prior to the organization of the Metropolitan Government for Nashville and Davidson County were continued in effect under Section 20.02 of the Charter of the Metropolitan Government which provides that zoning regulations in effect in Davidson County at the time of the effectiveness of the Charter >shall continue in force and effect until amended by the Council...or until revised, modified or changed by the Council..., authorized a cemetery to be operated at the location in question. The appellee contends that since the Council has taken no action changing the previously authorized usage as a cemetery, and since the Council is the governing body of Davidson County, it therefore has approved the usage of the land as a cemetery. It is here again significant that the officials of the Metropolitan Planning Commission advised both buyer and seller of the land involved that the cemetery could be established without further authorization by the Metropolitan Government. It could be concluded, in all good reason, though unnecessary to the disposition of this case, that any authorization required by T.C.A. s. 46-101 has been obtained. [At 198-99]

Another case also comes into play here. If the above cases have not already said as much, Mensi v. Walker, 26 S.W.2d 132 (1930), says:

The state, in the exercise of its powers under such act [Private Acts of 1925, Chapter 405, which regulated the establishment or enlargement of cemeteries in counties of 220,000 pop. and over, without the approval of the county governing body, or the city governing body, if the cemetery was in a city or within five miles of it.] could either declare the conditions under which a cemetery could be located, or it could enact the regulatory law and delegate power to a specially created fact-finding body, or to the county court and municipal legislative body of a corporation, or both, giving to such body or bodies authority to determine the facts under which the law should be applied. [At 134] [Citations omitted by me.]

Based on the above cases, it appears to me that the Tennessee Code Annotated, '46- 2-108 does take precedence over the city's zoning ordinance. But it also appears to me that in exercising its authority under that statute, the city council has the power to set the conditions under which a cemetery can be established in the city. In fact, arguably a city council's decision on such a question cannot be arbitrary or capricious. For that reason, it is probably a good idea for it to adopt standards for the approval and disapproval of cemeteries. However, having said that, if a private party does not have the standing to sue to challenge such a decision, who is to be the plaintiff in such a challenge?

Sullivan v. Harpeth Development Corporation also indicates that a city could adopt an ordinance requiring questions on the establishment of cemeteries to go through the zoning process, and meet conditions contained in the zoning ordinance for the establishment of cemeteries, even though decisions made under Tennessee Code Annotated, '46-8-101 are apparently not zoning decisions.

I have learned stuff over the past couple of days about cemeteries about which I had not the remotest ideas. There will be more to come on this subject.


Sidney D. Hemsley
Senior Law Consultant


file Regulation of Cemeteries public.doc