Current Legislative Sessions (2003-2004)


Re:  Proposed SECTION 9055
Allowing a Public Cemetery District to Sell or Convey
 a Public Cemetery
to another Cemetery Authority (Private or Public)

A Word from California Saving Graves (CSG)

          Section 9055 of Senate Bill 341 will allow public cemetery districts to sell their public cemeteries to other cemetery authorities, including private corporation.
          A review of the cemeteries presently being administered by the majority of public cemetery districts in California are among the earliest and oldest in the state.  As such, their value as heritage properties of California must be recognized.
          Furthermore, because they are the cemeteries of our oldest communities, these cemeteries were public cemeteries long prior to their acquisition by the public cemetery districts.   (The State did not enact the public cemetery district law until 1909.)
          For the above reasons, CSG believes that the historic public cemeteries now operated by public cemetery districts should not be allowed to be sold to other cemetery authorities, especially privately owned cemetery authorities.  If a public cemetery district finds that a cemetery has filled to capacity and is no longer of "use" to the district or it's residents, what makes that cemetery attractive in any way to another cemetery authority?  
          Proponents of the proposed Section 9055 say that a private cemetery authority may erect mausoleums and columbarium, where a district may not.  CSG maintains that if the cemetery has been properly managed and designed to utilize all the land within the grounds of the cemetery, there would not be any place upon which to erect such structures that would not be on top of, or impact in some way, existing graves!
          Because these are our oldest cemeteries there are NO HISTORIC BURIAL PLOT MAPS OR INTERMENT RECORDS.  Many of those operating the public cemetery districts acknowledge they continually encounter old, unmarked graves of which the district's were wholly unaware.  This is one of the realities of operating these historic cemeteries and cannot be ignored.  (Studies in El Dorado County have found the average number of documented unmarked graves in that county's cemeteries is from between 50% to 66%.)  Without burial plot maps that have been accurately kept since the origination of a cemetery, there is absolutely no way to know how many unmarked graves may exist in any given cemetery.
          Furthermore, the Cemetery and Funeral Bureau (CFB) of the Department of Consumer Affairs is presently severely understaffed.  The successor to the old California State Cemetery Board, the Bureau is struggling to stay on top of licensed private cemetery authorities.  The CFB has discovered and continues to discover many infractions committed at private cemeteries throughout the state.
          Representatives of the CFB readily admit that they are struggling under the weight of current laws that do not provide them with the ability to easily enforce them.  Do we really want our historic public cemeteries sold off to private cemetery authorities that know the State agencies cannot touch them?
          CSG and others have corresponded to the Senate Committee on Local Government opposing the inclusion of Sec. 9055.  CSG has asked the Committee to delete Sec. 9055 entirely.  
          Some progress to that end is being made, but more people need to contact the Committee with their concerns.  To access recommended text to send a message to the Senate Committee on Local Government, click HERE.  Email your message to the Committee's consultant, PETER DETWILER


          The proposed Section 9055 originated as Section 8963.5 of the Health and Safety Code.  

          Section 8963.5 was enacted in 1961, although review of the Legislative History Record does not indicate it was enacted to resolve any then-present situation encountered by any specific public cemetery district.  The only entity identified in the history record of the Bill that created Sec. 8963.5 as supporting the Bill was the Interment Association of California.  That organization is a private industry lobbying group.

          To date, only one public cemetery district is known to have used the authority granted under Sec. 8963.5.

          As proposed, Sec. 9055 places more requirements on the public cemetery districts that may consider the sale of their public cemeteries to another cemetery authority than the present Sec. 8963.5 which it replaces.  But it still authorizes a public cemetery district to sell (convey) a public cemetery out of public hands!

Memorandum to Working Group

           On March 24, 2003, the Committee's consultant, Peter Detwiler sent the following memorandum to members of the Working Group which reviewed the current statutes and assisted in reforming them as presented in SB 341.  
           This memo reads as follows:

The Working Group’s member and advisors reached a near consensus on the proposed Public Cemetery District Law. However, a controversy remains over the ability of cemetery districts to sell district cemeteries.

Because there is no easy solution to this controversy, I believe that the Senate Local Government Committee will need to resolve the problem when the Committee hears Senate Bill 341 on Wednesday April 2.

This memo provides the background to the Committee’s three choices:

     - Strike out §9055, eliminating the ability to sell a district cemetery.
     - Retain §9055, allowing a cemetery district to sell a district cemetery.
     - Retain §9055, but impose additional procedural safeguards.

What Does the Current Law Say?

In 1961, the Legislature authorized a public cemetery to convey a district cemetery to another cemetery authority (the current Health & Safety Code §8963.5 through §8963.9). A cemetery authority can be a local government or a private company. Current law requires a cemetery district’s board of trustees to approach the county board of supervisors for permission. County officials must hold a noticed public hearing and measure any protests. Protests from a majority of the district’s voters stops the proposed sale. If there is no majority protest, the county supervisors may allow the cemetery district to sell the cemetery but the action requires a 4/5-vote by the supervisors. The cemetery districts’ trustees determine the terms and conditions of the sale, including any payment, but the new owner must maintain the cemetery as an endowment care cemetery.

One Use of the Current Law

The only known use of the current law occurred in 1994 when the Orange County Cemetery District sold the six-acre Magnolia Memorial Park to a private owner. Established in 1874, the cemetery had 350 unused spaces but the District believed that the cemetery’s long-term economic viability required building a columbarium or a mausoleum. State law prohibited cemetery districts from having columbarium and mausoleums.

With the permission of the Orange County Board of Supervisors, the District sold the cemetery to a private owner. The maintenance of the cemetery declined. Conditions improved only after the District threatened to come back, clean up the grounds, and bill the private owner for the District’s costs. The District had imposed that term and condition when it sold the cemetery. After a church bought the cemetery in 2001, conditions improved.

What Did the Working Group Do?

During the Working Group’s review of the current law, Sue Silver objected to the current law. Silver is an advisor to the Working Group, representing the interests of pioneer and historic cemeteries. As a matter of principle, Silver and others believe that a cemetery in public ownership should never become a private cemetery. Publicly owned cemeteries are held in trust, they argue, for past generations and their descendents. After discussing the topic, the members of the Working Group decided that state law should continue a cemetery district’s ability to sell a district cemetery but recommended reforms to the statutory procedures.

What Would SB 341 Do?

The Committee’s bill allows a cemetery district to convey a district cemetery to a cemetery authority (the proposed Health & Safety Code §9055). Compared to the current law, SB 341 includes the following reforms:

     - The district’s board of trustees must adopt a detailed resolution, declaring that the sale would be in the "public interest" and in the district’s "best interest."

     - The bill expands the waiting period before the county supervisors’ hearing from 10 days to 60 days, expands the newspaper notice period from five days to 10 days, and requires county officials to mail notices of the supervisors’ hearing to anyone who has asked for notice.

     - At the supervisors’ hearing, SB 341 requires the county supervisors to consider any oral and written comments. The proposed sale stops if majority protests come from either the district’s voters or landowners.

     - The county supervisors must still act by a 4/5-vote and they must also approve the district trustees’ proposed terms and conditions, including the sales price.

     - The bill keeps the current requirement for the cemetery’s endowment care.

The Controversy

Sue Silver and others representing pioneer and historic cemeteries have written to the Committee, opposing SB 341 because of §9005. In my discussions with Sue, she explained that her opposition is a matter of principle; no amendments would change her position. She and others want the Committee to delete §9055 from SB 341.

Should the Committee Adopt More Reforms?

If the Committee does not delete §9055, the legislators may wish to consider additional reforms to protect the public interest. The Committee may wish to consider some or all of these amendments:

     - Require a district to prepare a public report on the assets and liabilities of the cemetery it proposes to sell.

     - Expand the public notice for the county supervisors’ hearing: publish the newspaper notice once a week for four weeks; post the notices for four weeks; and mail individual notices to the owners of the cemetery plots.

     - Require the county supervisors to either turn down the proposed sale or call an election of the district’s voters, if the protests reach 25% of either the district’s voters or landowners.

     - Increase the county supervisors’ approval from a 4/5-vote to a unanimous vote.

     - Require the district to impose a deed restriction on the sale that would allow the district to reassert control if the new owner failed to properly maintain the cemetery.