AGO 1955 No. 76 - May 16 1955
CEMETERIES AND BURIAL GROUNDS
(1) Can a cemetery established subsequent to June 16, 1953, claim exemption from the provisions of chapter 290, Laws of 1953, where the cemetery includes only eight acres.
(2) Can such a cemetery claim exemption from the provisions of RCW 68.40.010 with regard to deposit of $25,000 in the fund. Both questions answered conditionally.
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May 16, 1955
Mr. Hans M. Bielski
P.O. Box 218
Aberdeen, Washington Cite as: AGO 55-57 No. 76
By letter previously acknowledged you have requested our opinion on two question as follows:
(1) Can a cemetery corporation establishing a cemetery subsequent to June 16, 1953, claim exemption from the provisions of chapter 290, Laws of 1953, where the cemetery includes only eight acres?
(2) Can such a cemetery established as an endowment care cemetery claim exemption from the provisions of RCW 68.40.010 with regard to the deposit of $25,000 in the fund.
Both of these questions will have to be answered conditionally and upon an assumption of facts which are not included in the information so far submitted.
RCW 68.05.280 provides:
[[Orig. Op. Page 2]]
"The provisions of this chapter do not apply to any of the following: Any religious corporation, church, coroner, religious society or denomination, a corporation sole administering temporalities of any church or religious society or denomination, or any cemetery organized, controlled, and operated by any of them, any county, town, or cemetery, or any burial park having an area not exceeding ten acres." (Emphasis supplied)
It will be noted that this section eliminates cemeteries organized by religious and fraternal organizations and by counties and cities, regardless of size, but with reference to a private cemetery the exemption includes only a burial park having not in excess of ten acres.
RCW 68.04.040 defines cemeteries as follows:
"'Cemetery' means any one, or a combination of more than one, of the following, in a place used, or intended to be used, and dedicated, for cemetery purposes:
"(1) A burial park, for earth interments.
"(2) A mausoleum, for crypt or vault interments.
"(3) A columbarium, for permanent cinerary interments."
RCW 68.04.050 defines burial parks as follows:
" 'Burial park' means a tract of land for the burial of human remains in the ground, used or intended to be used, and dedicated, for cemetery purposes."
Thus, it is seen that a cemetery may be a burial park and a burial park may be a cemetery; but also that a cemetery may be much more than a burial park.
[[Orig. Op. Page 3]]
"An endowment care cemetery is one which deposits its endowment care fund not less than the following amounts for plots sold: Ten percent of the gross sales price, with a minimum of ten dollars for each adult grave; five dollars for each niche; and thirty dollars for each crypt.
"The deposits shall be made not later than the twentieth day of the month following the final payment on the sale price.
"Any endowment care cemetery hereafter established shall also have deposited in its endowment care fund the additional sum of twenty-five thousand dollars before disposing of any plot or making any sale thereof."
Referring again to RCW 68.05.280, we find that the only private cemetery exempted from the provisions of chapter 290, Laws of 1953, is a tract of land not exceeding ten acres for the burial of human remains in the ground used or intended to be used and dedicated for cemetery purposes only. If the burial park which is being established by the West Hills Memorial Gardens, Inc. is only eight acres in extent, and if it is dedicated only for the purpose of burial of human remains in the ground, it would come within the exemption provided by RCW 68.05.280. If, however, the eight acres are dedicated for the purpose of establishing a burial park and in addition thereto a mausoleum or crypt, or a columbarium, then it would not fall within the exception provided by the statute just above referred to since it would be a cemetery instead of burial park.
By its articles of incorporation the West Hills Memorial Gardens, Inc. is authorized and empowered to build and maintain cemeteries, crematories, columbaria and mausoleums. It would appear from the enclosures sent with your letter of inquiry that this corporation is already selling or offering for sale lots in the proposed cemetery. It does not appear from any information submitted to us that they have complied with other provisions of the cemetery laws, to-wit, RCW 68.24.020 (section 62, chapter 247, Laws of 1943) which requires that a cemetery authority must survey, subdivide and plot its cemetery and make a map or plat showing its subdivisions with descriptive names or numbers; RCW 68.24.030 (section 63, chapter 247, Laws [[Orig. Op. Page 4]] of 1943) which provides this plat or map must be filed with the county auditor of the county in which the cemetery is located, together with a written declaration or dedication of the property exclusively to cemetery purposes; RCW 68.24.040 which provides that when the map or plat and the declaration are filed with the county auditor, the declaration is complete for all purposes.
RCW 68.20.090, section 64, chapter 247, Laws of 1943, provides:
"The provisions of this title do not affect the corporate existence or rights or powers of any cemetery organized under any law existing prior to June 9, 1953, and as to such cemeteries and the rights and powers specified in their charters or articles of incorporation and the laws under which the corporation was organized and under which such rights and powers become fixed or vested, are applicable."
RCW 68.48.040, section 145, chapter 247, Laws of 1943, provides that every owner or operator of a cemetery established in violation of chapter 247, Laws of 1943, is guilty of maintaining a public nuisance and upon conviction may be fined not less than $500 nor more than $5,000 or imprisoned in the county jail for not less than one month nor more than six months, or by both such fine and imprisonment. RCW 68.20.090, 68.24.020, 68.24.030 and 68.24.040 are all derived from chapter 247, Laws of 1943 and until the property now owned and proposed to be converted into a cemetery by the West Hills Memorial Gardens, Inc. has been zoned by Yakima County, for cemetery purposes and until the permit to establish a cemetery has been issued by the county commissioners, no cemetery may be established without violating the provisions of the act and making the violator subject to the penalties above enumerated.
To answer your questions as specifically as possible, if that portion of Yakima County containing the eight acres now owned by the West Hills Memorial Gardens, Inc. has been zoned for cemetery purposes and the eight acres have been platted and dedicated, and if they have obtained a permit from the county commissioners, they may open or establish a burial park for the limited purpose of the burial of human remains in the ground only and will not be subject to the provisions or restrictions of RCW 68.40.010. If, however, at [[Orig. Op. Page 5]] any time in the future the burial park is increased to include in excess of ten acres, or if a mausoleum or columbarium is added to the facilities, they shall become immediately subject to the provisions of RCW 68.40.010 and will be required to deposit in their care fund the sum of $25,000 in addition to the other requirements of that section.
You have already been furnished with copies of opinions of this office (AGO 53-55 No. 224 [[to C. S. Harley, Cemetery Board on March 19, 1954]]and AGO 55-57 No. 56 [[to W. A. Gissberg, State Senator on April 13, 1955]]) dealing with some of the basic questions involved. We trust that this information will be helpful to you.
We trust that this information will be helpful to you.
Very truly yours,
ROY C. FOX
Assistant Attorney General