Preservation of Historic Cemeteries: Summary of Applicable Laws and Appropriate Actions
(Summary compiled by the Coalition to Protect Maryland Burial Sites, Inc. February 8, 1997; updated July 2003)
A. Applicable Laws in the Annotated Code of Maryland and the Maryland Rules
(unless so noted, references are from the Annotated Code)
1. To protect a cemetery against vandalism:
CR Article (Par. 10-404) provides for a fine of up to $10,000 and/or imprisonment for up to 5 years for anyone convicted of willfully destroying, mutilating, defacing, injuring or removing any tomb, monument, gravestone, or other structure placed in a cemetery or any building, wall, fence, railing or other work for the use, protection or ornamentation of any cemetery.
In the CR Article (Par. 807), it is also provided that the judge may issue an “order of restitution” for the “victim”, which, in the case of cemetery vandalism, the law defines as “the owner of the burial site and an individual related by blood or marriage to the individual buried in the burial site”. Such an order of restitution can apply if the property of the victim is “stolen, damaged, destroyed, converted, unlawfully obtained, or its value substantially decreased as a direct result of the crime.”
The CR Article (Par. 10-404) provides for a fine of up to $500 and/or imprisonment for up to 2 years for anyone convicted of wilfully destroying, cutting, breaking or removing any tree, plant or shrub in a cemetery, or who is found guilty of indecent or disorderly conduct within said limits.
2. To protect a cemetery against unlawful removal of human remains:
CR Article (Par. 10-402) states that it is a misdemeanor offense, punishable by a fine of up to $10,000 or imprisonment in the penitentiary for up to 5 years, or both, for anyone convicted of removing or attempting to remove human remains from any burial site in Maryland, unless such person or persons have received prior authorization, in writing from the State’s Attorney for Baltimore City or for the county in which the burial site is located.
In addition, the law further requires, in the Health-General Article, Section 4-215, that anyone who wishes to disinter and re-inter human remains must first obtain a permit from the Department of Health and Mental Hygiene. The Department is required to maintain a record of all such permits issued.
3. To lawfully relocate human remains from an “abandoned cemetery”:
CR Article (Par. 10-402) states that a State’s Attorney from Baltimore City or from a county may authorize in writing the removal of human remains from a burial site specifically for 1) the ascertaining the cause of death of the person whose remains are to be removed, 2) determining whether the human remains were interred erroneously, 3) for the purposes of reburial, and 4) for medical or scientific examination or study, as permitted by law.
Except for the four purposes stated above, a State’s Attorney for Baltimore City or a county shall require a person requesting authorization to permanently relocate human remains from a burial site to publish a notice of the proposed relocation in a newspaper of general circulation in Baltimore City or in the county where the burial site is located.
The notice shall be published one time, shall be paid for by the person requesting authorization to relocate the human remains, and shall contain four things: 1) a statement that authorization is being sought from the State’s Attorney to remove human remains from a burial site, 2) the purpose for the relocation, 3) the location of the burial site (including tax map and parcel number or liber and folio number), and 4) all known pertinent information about the burial site (including names of those buried there, if known).
For good cause, the State’s Attorney may authorize the temporary relocation of human remains from a burial site notwithstanding the notice requirements. If the person requesting the authorization thereafter intends to permanently relocate the remains, the person shall promptly publish the notice as required.
After receiving proof of the publication, the 15 days having expired after the date of publication, the State’s Attorney may authorize the removal of human remains from the burial site. For a known, but not necessarily documented, unmarked burial site, the person requesting authorization to relocate the human remains has the burden of proving, by archaeological or other means, the precise location and boundaries of the burial site.
There are two other requirements: 1) No human remains can be removed from a burial site without a permit from the Department of Health and Mental Hygiene as required under Sec. 4-215, and 2) human remains removed from the burial site must be re-interred as follows: a) in a permanent cemetery that provides perpetual care or in a place other than a permanent cemetery with the agreement of, or at the request of, a person in interest as defined in Sec. 14-121(A)(4) of the Real Property Article, and b) in the presence of a mortician, professional cemeterian, or other person qualified in the interment of human remains; a minister, priest, or other religious leader; or a trained anthropologist or archaeologist.
4. To lawfully relocate human remains from an “abandoned cemetery”:
The CR Art. 10-404(e) states that human remains or any associated funerary objects can be removed from an “abandoned” cemetery ONLY if (a) prior consent in writing of the State’s Attorney of the county or of Baltimore City has been obtained and (b) that such human remains or associated funerary objects are placed in “an accessible place in a permanent cemetery”.
5. To protect a cemetery from illegal looting of human remains and associated funerary objects:
CR Article 10-403 provides that any person who knowingly buys, sells or transports for sale or profit, or who offers to do the same, any unlawfully removed human remains or associated funerary object is guilty of a misdemeanor and on conviction can be fined up to $5,000 and/or imprisoned for up to 1 year. Certain exceptions are made for those acting in the course of licensed medical, archaeological, educational or scientific studies or for licensed morticians or other professionals in carrying out their duties and responsibilities. The law defines associated funerary object as “an item of human manufacture or use intentionally placed with human remains at the time of interment in a burial site or later as part of a death rite or ceremony of a culture, religion, or group”. (Basically, this law was enacted to stop the trading of unlawfully removed human remains such as skulls and grave goods including Indian artifacts and Civil War relics.)
6. To develop land that contains a cemetery:
Article 66B, Section 5.03 of the Zoning and Planning Article provides that regulations governing the subdivision of land shall require that an appropriate easement be provided for any burial site located on the land subject to the subdivision plat for ingress and egress to the burial site by persons related by blood or marriage or persons in interest, as defined in Section 14-121 of the Real Property Article. (Other related provisions are contained in Section 7.03 of Article 66B.)
7. To gain access to a cemetery located on private property:
To facilitate access to a cemetery, Section 14-121 of the Real Property Article provides that any person in interest (as defined in the Section) may request the owner of a burial site or of the land encompassing a burial site, that has been documented or recognized as a burial site by the public or any person in interest, to grant reasonable access to the burial site for the purpose of restoring, maintaining, or viewing the burial site. An access agreement form can be executed similar to the one that is printed in the text of the law. The law provides that except for willful or malicious acts, the owner of a burial site or of the land encompassing a burial site is not liable for damages in a civil action to a person who enters on the land for injury to person or property.
8. To rehabilitate or preserve a cemetery:
Section 14-122 of the Real Property Article provides that any county or municipal corporation may, upon request of or with the permission of the owner of the burial site, maintain and preserve the burial site for the owner. In order to do this, including the repair or restoration of fences, tombs, monuments, or other structures located in a burial site, a county or municipal corporation may appropriate money, solicit donations, provide incentives for charitable organizations or community groups to donate their services, and develop a community service program through which individuals required to perform community service hours, under a court sentence or as students, may satisfy their requirements.
9. To sell a cemetery:
See BR Article, Par. 5-505 and 506; Rule 14—401, Rule 14—501 and 502; and Rule 12—201 through 206.
B. Appropriate Actions to Preserve a Cemetery
1. Contact the genealogical society for the county in which the cemetery is located. The society may have recorded the cemetery and have useful information about its size, age, the people buried there, and possibly the names of living descendants. The latter is particularly important: while local State’s Attorneys are not required by law to inform descendants of a pending relocation of family gravesites from an “abandoned cemetery”, in fact, State’s Attorneys often do seek out the descendants to confer with them before granting authority for relocation.
http://www.mdarchives.state.md.us/msa/refserv/html/societies.html or http://www.obitlinkspage.com/hs/md.htm
2. Contact the historical society for the county in which the cemetery is located. Additional useful information may be obtained about those buried in the cemetery and living descendants. http://www.mdarchives.state.md.us/msa/refserv/html/societies.html or http://www.obitlinkspage.com/hs/md.htm
3. Contact the Maryland Historical Trust. Located in Crownsville, outside of Annapolis, the Trust is a source of information about the procedures for an archaeological site survey to be made of the cemetery and about the requirements for listing the cemetery on either the Maryland Register of Historic Places or the National Register. In addition, the Maryland Commission on Indian Affairs, located in the Trust, can provide information about Native American burials. The main number for the Trust is (410) 514-7600, 100 Community Place, Crownsville, MD 21032-2023 http://www.marylandhistoricaltrust.net/
4. Contact the Maryland Department of Veterans’ Affairs. This Department, located in the Federal Building in Baltimore, MD, may provide assistance if a veteran’s grave marker needs replacement or if more information is need about a veteran buried in Maryland. The Department’s phone number if 410-333-4428 or 1-800-446-4926.
5. Visit the county tax assessments and land records offices. Try to locate on the tax maps the property on which the cemetery is situated to determine the present owner, as well as previous deeds of sale of the same property, to determine if a protective covenant “saving and excepting” the cemetery was ever recorded in the land records (i.e., reserving the cemetery to the ownership of the heirs and descendants despite the sale and resale of adjoining property.) http://courts.state.md.us/circuit/directory.html
6. Contact your local county Cemetery Advisory Board if one exists. At the present time, such Boards, with specific responsibilities in regard to cemetery preservation, exist in two counties: Howard and Worcester. In other Maryland counties, such citizen advisory boards may be under consideration, so check with your local government authorities, particularly the planning and zoning department, to see what local ordinances may be in place or being considered to protect cemeteries, including the maintenance of a county cemetery inventory.
7. Contact the Coalition to Protect Maryland Burial Sites, Inc.Write to the Coalition, P.O. Box 1533, Ellicott City, Maryland 21041-1533 for additional information about the burial site laws and guidance in the restoration of an historic cemetery.
8. Contact non-profit, civic, and patriotic organizations for assistance in cemetery clean-up and maintenance.Groups and organizations such as the following can be helpful in providing volunteers to help with cemetery restoration: Boy and Girl Scouts of America, Sons and Daughters of the American Revolution, American Legion, Veterans of Foreign Wars, Lion’s Clubs, and the Jaycee’s (Junior Chamber of Commerce). Other local groups to contact include church senior high youth groups, garden clubs, community associations, middle and high schools (that have students with community service requirements to fulfill before graduation) and the local sheriff’s office (that may be able to supply workers under an alternative sentencing program).
9. Contact the local police department or sheriff’s office for additional assistance in cemetery up-keep. Individuals ordered by the courts to perform community service hours under prerelease and alternative sentencing programs are often available to help owners, descendants, or authorized care-takers rehabilitate an over-grown cemetery, particularly if the cemetery is or was of historical and cultural significance in the community.