Cemetery Preservation: Kentucky Statutes on Cemeteries
In the United States, the preservation of historic cemeteries is largely subsumed under the complicated body of law that governs historic preservation generally. That body of law consists of statutes, regulations, executive orders, administrative guidelines, and case law at multiple levels of government. Powers not conferred to the federal government are reserved by the states, and thus many aspects of the law relevant to historic preservation and protection of cemeteries are matters of state law. States typically have laws providing for the protection and registration of historic places, the authority of municipalities to establish historic preservation districts, the regulation of cemeteries, and similar laws affecting the preservation of historic cemeteries. Local governments are also empowered to provide for historic preservation within their borders through enabling legislation found in most states that delegate to municipalities “the police power of the state to regulate the preservation of historic or architecturally significant private property.
The law contemplates generally two categories of cemeteries, public and private. A public cemetery is one used by the general community, a neighborhood, or a church, while a private cemetery is one used only by a family or a small portion of the community. However, actual public use rather than ownership determines whether a cemetery is public. Thus, a cemetery, though privately owned or maintained, may be deemed a public cemetery if it is open, under reasonable regulations, to the use of the public for the burial of the dead. A cemetery, though privately owned, is properly classified as a “public cemetery” where it consists of a great number of burial plots or sites sold and for sale to the public. Conversely, a family burying ground has been defined by statute as one in which no lots are sold to the public and in which interments are restricted to a group of persons related to each other by blood or marriage.
Note that a municipal corporation may hold property in trust for a public burial ground or in a private or proprietary character as a private corporation. The Federal government provides burial locales for military and other selected federal personnel.
A state may regulate the location of cemeteries through the exercise of its police power by statute directly regulating the location of cemeteries. Kentucky’s revised Statutes regarding cemetery protection, access and responsibilities are discussed in this publication.