Who Protects Cemeteries in West Virginia?
A variety of legislation protects human burial sites in West Virginia. Protective agencies range from local sheriffs to divisions of the state government. Specific legislation follows:
W.Va. Code '29-1-8a provides protection for human burials and burial sites of historic significance, including unmarked graves, grave artifacts and grave markers. Cemeteries must have archaeological or historical importance to fall under the protection of this law. Penalties are assessed for excavating, removing or otherwise desecrating such burials without the permission of an ad hoc committee convened at need by the State Historic Preservation Office. Both misdemeanor and felony charges may result, and conviction carries fines up to $5000 and/or prison terms.
W.Va. Code '37-13-1 through -7 guide the removal, transfer and disposition of human remains found in gravesites on privately-owned land. The circuit court of the county in which the graves are located has jurisdiction over any proposed disturbance, provided that the graves in question are determined to have no archaeological or historical significance. Petitions must be made to and through the court system.
W.Va. Code '16-5-21 through -22 provide guidelines for interment and disinterment. It requires that permits for such actions be obtained from the county circuit court prior to any activity unless authorized to do so by court order. Such permits are required by law to be filed by the local registrar and be open at all times to official inspection. Records must also be kept by the person or persons in charge of interment and of the cemetery or burial ground.
W.Va. Code '61-8-14 provides penalties for the disinterment or displacement of a dead body, and damage to cemetery or graveyard properties. Disinterment or displacement of a dead human body or parts thereof is a felony crime, and is punishable by imprisonment of not less than two or more than five years. Desecration of or damage to a cemetery, graveyard, or cemetery structure is a misdemeanor, conviction of which may result in fines of not more than $2000, or imprisonment of not more than one year, or both.
W.Va. Code '35-5-1 through -6 and 5A-1 through -8 regulate the governance of cemeteries, including the appointment of trustees, establishment of endowments for perpetual care, etc.
'17-22-4. General restrictions as to outdoor advertising. The following restrictions shall apply to all advertising signs, displays, and devices erected and maintained adjacent to any roads within the state road system, including federal-aid interstate and primary roads.(10) No advertising sign, display, or device shall be erected, outside of any municipality, within five hundred feet of any church, school, cemetery, public park, public reservation, public playground, or state or national forest, except markers for underground utility facilities.
'22-3-22. Designation of areas unsuitable for surface mining; petition for removal of designation; prohibition of surface mining on certain areas; exceptions; taxation of minerals underlying land designated unsuitable.(a) The director shall establish a planning process to enable objective decisions based upon competent and scientifically sound data and information as to which, if any, land areas of this state are unsuitable for all or certain types of surface-mining operations pursuant to the standards set forth in subdivisions (1) and (2) of this subsection: Provided, That such designation shall not prevent prospecting pursuant to section seven of this article on any area so designated.(1) Upon petition pursuant to subsection (b) of this section, the director shall designate an area as unsuitable for all or certain types of surface-mining operations, if it determines that reclamation pursuant to the requirements of this article is not technologically and economically feasible.(2) Upon petition pursuant to subsection (b) of this section, a surface area may be designated unsuitable for certain types of surface-mining operations, if the operations: (A) Conflict with existing state or local land use plans or programs; (B) affect fragile or historic lands in which the operations could result in significant damage to important historic, cultural, scientific and aesthetic values and natural systems; (C) affect renewable resource lands, including significant aquifers and aquifer recharge areas, in which the operations could result in a substantial loss or reduction of long-range productivity of water supply, food or fiber products; or (D) affect natural hazard lands in which the operations could substantially endanger life and property. Such lands shall include lands subject to frequent flooding and areas of unstable geology.(3) The director shall develop a process which includes: (A) The review of surface-mining lands; (B) a data base and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface-mining operations; (C) a method for implementing land use planning decisions concerning surface-mining operations; and (D) proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation pursuant to this section.(4) Determinations of the unsuitability of land for surface mining, as provided for in this section, shall be integrated as closely as possible with present and future land use planning and regulation processes at federal, state and local levels.(5) The requirements of this section do not apply to lands on which surface-mining operations were being conducted on the third day of August, one thousand nine hundred seventy-seven, or under a permit issued pursuant to this article, or where substantial legal and financial commitments in the operations were in existence prior to the fourth day of January, one thousand nine hundred seventy-seven. (2) Which will adversely affect any publicly owned park or places included in the national register of historic sites, or national register of natural landmarks unless approved jointly by the director and the federal, state or local agency with jurisdiction over the park, the historic site or natural landmark;(4) Within three hundred feet from any occupied dwelling, unless waived by the owner thereof, or within three hundred feet of any public building, school, church, community or institutional building, public park, or within one hundred feet of a cemetery; or(5) On any federal lands within the boundaries of any national forest: Provided, That surface coal mining operations may be permitted on the lands if the secretary of the interior finds that there are no significant recreational, timber, economic or other values which may be incompatible with the surface-mining operations: Provided, however, That the surface operations and impacts are incident to an underground coal mine.
'22-3-22a. Blasting restrictions; site specific blasting design requirement.(a) For purposes of this section, the term Aproduction blasting@ means blasting that removes the overburden to expose underlying coal seams and does not include construction blasting.(b) For purposes of this section, the term Aconstruction blasting@ means blasting to develop haul roads, mine access roads, coal preparation plants, drainage structures or underground coal mine sites and does not include production blasting.(c) For purposes of this section, the term Aprotected structure@ means any of the following structures that are situated outside the permit area: An occupied dwelling; a temporarily unoccupied dwelling which has been occupied within the past ninety days; a public building; a structure for commercial purposes; a school; a church; a community or institutional building; and a public park or a water well.(d) Production blasting is prohibited within three hundred feet of a protected structure or within one hundred feet of a cemetery.(e) Blasting within one thousand feet of a protected structure shall have a site-specific blast design approved by the office of explosives and blasting. The site-specific blast design shall limit the type of explosives and detonating equipment, the size, the timing and frequency of blasts to do the following:(1) Prevent injury to persons; (2) prevent damage to public and private property outside the permit area; (3) prevent adverse impacts on any underground mine; (4) prevent change in the course, channel or availability of ground or surface water outside the permit area; and (5) reduce dust outside the permit area.In the development of a site-specific blasting plan, consideration shall be given, but is not limited to, the physical condition, type and quality of construction of the protected structure, the current use of the protected structure and the concerns of the owner or occupant living in the protected structures identified in the blasting schedule notification area.(f) An owner or occupant of a protected structure may waive the blasting prohibition within three hundred feet. If a protected structure is occupied by a person other than the owner, both the owner and the occupant of the protected structure shall waive the blasting prohibition within three hundred feet in writing. The operator shall send copies of all written waivers executed pursuant to this subsection to the office of explosives and blasting. Written waivers executed and filed with the office of explosives and blasting are valid during the life of the permit or any renewals of the permit and are enforceable against any subsequent owners or occupants of the protected structure.(g) The provisions of this section do not apply to the following: (1) Underground coal mining operations; (2) the surface operations and surface impacts incident to an underground coal mine; and (3) the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods: Provided, That nothing contained in this section may be construed to exempt any coal mining operation from the general performance standards as contained in section thirteen of this article and any rules promulgated pursuant to said section.
' CHAPTER 32A. LAND SALES; FALSE ADVERTISING; ISSUANCEAND SALE OF CHECKS, DRAFTS, MONEY ORDERS, ETC.
ARTICLE 1. LAND SALES; FALSE ADVERTISING.'32A-1-1. Filing and registration with respect to lands prerequisite to sale, etc., within state. No person, partnership or corporation shall sell or offer for sale, in this state, any lands, situate outside this state, which are to be planted in trees or vines or divided into town or suburban lots, or any unimproved or undeveloped lands, or any lands, including cemetery lots, cemetery privileges, burial rights or privileges, the value of which materially depends on the future performance of any stipulation or promise to furnish irrigation, transportation facilities, streets, sidewalks, sewers, gas, electricity or other value enhancing utility or improvement of any undivided part or share, whether an aliquot part or a part designated on any other basis, or any mine, mineral claim, or other estate in any mine, or in the lands containing the same, regardless of where located or situated, the value of which materially depends on the future discovery or development and production of the minerals, without first having filed with the commissioner of securities (which office is established in chapter thirty-two of this code) a detailed description of the property which, or any interest or part or share of which, is proposed to be sold, and such information with respect to the value thereof, and the title to such property or properties as the commissioner of securities shall require, and without causing such property to be registered by the commissioner of securities in the manner provided for the registration of securities by qualification under section three hundred four, article three, chapter thirty-two of this code; and no person shall sell or offer any such property for sale until he has been registered as a salesman by the commissioner of securities under the provisions for registering agents contained in article two, chapter thirty-two of this code. All of the provisions contained in chapter thirty-two of this code governing the registration of securities by qualification and the registration of agents and the penalties provided therein shall apply to the registration of properties and salesmen under this article: Provided, That nothing contained in this article shall prevent any bona fide owner of any such land, mine, mining lease, mineral claim or other property, or interest therein, from selling the same on his own account and not as a part, or in furtherance, of any promotion or development to the public.
'54-1-2. Public uses for which private property may be taken or damaged. The public uses for which private property may be taken or damaged are as follows:
(h) For cemeteries, and the extension and enlargement of existing cemeteries: Provided, That no lands shall be taken for cemetery purposes which lie within four hundred feet of a dwelling house, unless to extend the boundaries of an existing cemetery, and then only in such manner that the limits of the existing cemetery shall not be extended nearer than four hundred feet of any dwelling house distant four hundred feet or more from such cemetery, or nearer than it was to any dwelling house which is within four hundred feet thereof;