§37-13A-1.
Access of certain persons to cemeteries and graves located
on private land.
For the purposes
set forth in section two of this article, the state recognizes
that the owners of private land on which a cemetery or graves
are located have a duty to allow ingress and egress to the
cemetery or graves by family members, close friends and descendants
of deceased persons buried there, by any cemetery plot owner,
or by any person engaging in genealogy research who has given
reasonable notice to the owner of record or to the occupant
of the property or to both the owner and occupant. The
access route may be designated by the landowner if no traditional
access route is obviously visible by a view of the property.
§37-13-1a. Improvement,
construction or development upon privately owned lands containing
graves.
No improvement, construction or development shall commence
upon privately owned lands on which a cemetery or graves are
located if such improvement, construction or development would
destroy or otherwise physically disturb the cemetery or graves
located on the land unless the owner first files a petition
in accordance with the provisions of section two of this article
and an order is entered pursuant to section five of this article
providing for the disposition of the remains
§37-13A-2. Purposes
for which access is allowed.
The right of ingress
and egress granted to persons specified in section one of
this article shall be limited to the purposes of: (1) Visiting
graves; (2) maintaining the grave site or cemetery; (3) burying
a deceased person in a cemetery plot by those granted rights
of burial to that plot; and (4) conducting genealogy research.]
§37-13A-3. Conduct
of persons accessing cemeteries or grave sites; persons liable
for damage.
All persons exercising
access to a grave site or cemetery under the provisions of
this article are responsible for conducting themselves in
a manner that does not damage the private lands, the cemetery
or grave sites and are liable to the owner of the private
lands for any damage caused as a result of their access.
§37-13A-5. Cause
of action for injunctive relief.
Any person denied
reasonable access under the provisions of this section, including
the denial of permission to use vehicular access, may institute
a proceeding in the circuit court of the county in which the
cemetery or grave site is located to enjoin the owner of the
private lands on which the cemetery or grave site is located,
or his or her agent, from denying the person reasonable ingress
and egress to the cemetery or grave site for the purposes
set forth in section two of this article. In granting such
relief, the court may set the frequency of access, hours and
duration of the access.
§29-1-8a. Protection
of human skeletal remains, grave artifacts and grave markers;
permits for excavation and removal; penalties.
(a) Legislative findings and purpose.
The Legislature finds that there is a real and growing threat
to the safety and sanctity of unmarked human graves in West
Virginia and the existing laws of the state do not provide
equal or adequate protection for all such graves. As evident
by the numerous incidents in West Virginia which have resulted
in the desecration of human remains and vandalism to grave
markers, there is an immediate need to protect the graves
of earlier West Virginians from such desecration. Therefore,
the purpose of this article is to assure that all human burials
be accorded equal treatment and respect for human dignity
without reference to ethnic origins, cultural backgrounds,
or religious affiliations.
The Legislature also finds that those persons engaged in the
scientific study or recovery of artifacts which have been
acquired in accordance with the law are engaged in legitimate
and worthy scientific and educational activities. Therefore,
this legislation is intended to permit the appropriate pursuit
of those lawful activities.
Finally, this legislation is not intended to interfere with
the normal activities of private property owners, farmers,
or those engaged in the development, mining or improvement
of real property.
(b) Definitions.
For the purposes of this section:
(1) "Human skeletal remains" means the bones, teeth,
hair or tissue of a deceased human body;
(2) "Unmarked grave" means any grave or location
where a human body or bodies have been buried or deposited
for at least fifty years and the grave or location is not
in a publicly or privately maintained cemetery or in the care
of a cemetery association, or is located within such cemetery
or in such care and is not commonly marked;
(3) "Grave artifact" means any items of human manufacture
or use that are associated with the human skeletal remains
in a grave;
(4) "Grave marker" means any tomb, monument, stone,
ornament, mound, or other item of human manufacture that is
associated with a grave;
(5) "Person" includes the federal and state governments
and any political subdivision of this state;
(6) "Disturb" means the excavating, removing, exposing,
defacing, mutilating, destroying, molesting, or desecrating
in any way of human skeletal remains, unmarked graves, grave
artifacts or grave markers;
(7) "Native American tribe" means any Indian tribe,
band, nation, or organized group or community which is recognized
as eligible for the special programs and services provided
by the United States to Indians because of their status as
Indians;
(8) "Cultural affiliation" means the relationship
of shared group identity which can be reasonably traced historically
or prehistorically between a present day group and an identifiable
earlier group;
(9) "Lineal descendants" means any individuals tracing
his or her ancestry directly or by proven kinship; and
(10) "Proven kinship" means the relationship among
people that exists because of genetic descent, which includes
racial descent.
(c) Acts prohibited; penalties.
(1) No person may excavate, remove, destroy, or otherwise
disturb any historic or prehistoric ruins, burial grounds,
archaeological site, or human skeletal remains, unmarked grave,
grave artifact or grave marker of historical significance
unless such person has a valid permit issued to him or her
by the director of the historic preservation section: Provided,
That the supervising archaeologist
of an archaeological investigationbeing undertaken in compliance
with the federal Archaeological Resources Protection Act (Public
Law 96-95 at 16 USC 470(aa)) and regulations promulgated thereunder
shall not be required to obtain such permit, but shall notify
the director of the historic preservation section that such
investigation is being undertaken and file reports as are
required of persons issued a permit under this section: Provided,
however, That projects being
undertaken in compliance with section 106 of the National
Historic Preservation Act of 1966, as amended, or subsection
(a), section five of this article shall not be required to
obtain such permit for excavation, removal, destruction or
disturbance of historic or prehistoric ruins or archaeological
sites.
A person who, either by himself or through an agent, intentionally
excavates, removes, destroys or otherwise disturbs any historic
or prehistoric ruins, burial grounds or archaeological site,
or unmarked grave, grave artifact or grave marker of historical
significance without first having been issued a valid permit
by the director of the historic preservation section, or who
fails to comply with the terms and conditions of such permit,
is guilty of a misdemeanor, and, upon conviction, shall be
fined not less than one hundred dollars nor more than five
hundred dollars, and may be imprisoned in the county jail
for not less than ten days nor more than six months or both
fined and imprisoned.
A person who, either by himself or through an agent, intentionally
excavates, removes, destroys or otherwise disturbs human skeletal
remains of historical significance without first having been
issued a valid permit by the director of the historic preservation
section, or who fails to comply with the terms and conditions
relating to disinterment or displacement of human skeletal
remains of such permit, is guilty of the felony of disinterment
or displacement of a dead human body or parts thereof under
section fourteen, article eight, chapter sixty-one of this
code and, upon conviction, shall be confined in the state
penitentiary not less than two nor more than five years.
A person who intentionally withholds information about the
excavation, removal, destruction, or other disturbance of
any historic or prehistoric ruins, burial grounds, archaeological
site, or human skeletal remains, unmarked grave, grave artifact
or grave marker of historical significance is guilty of a
misdemeanor and, upon conviction, shall be fined not more
than one hundred dollars, and may be imprisoned in the county
jail not more than ten days.
(2) No person may offer for sale or exchange any human skeletal
remains, grave artifact or grave marker obtained in violation
of this section.
A person who, either by himself or through an agent, offers
for sale or exchange any human skeletal remains, grave artifact
or grave marker obtained in violation of this section is guilty
of a misdemeanor and, upon conviction, shall be fined not
less than one thousand dollars nor more than five thousand
dollars, and may be imprisoned in the county jail not less
than six months nor more than one year.
(3) Each instance of excavation, removal, destruction, disturbance
or offering for sale or exchange under (1) and (2) of this
subsection shall constitute a separate offense.
(d) Notification of discovery of human skeletal remains in
unmarked locations.
Within forty-eight hours of the discovery of human skeletal
remains, grave artifact or grave marker in an unmarked grave
on any publicly or privately owned property, the person making
such discovery shall notify the county sheriff of the discovery
and its location. If the human remains, grave artifact or
grave marker appear to be from an unmarked grave, the sheriff
shall promptly, and prior to any further disturbance or removal
of the remains, notify the director of the historic preservation
section. The director shall cause an on-site inspection of
the disturbance to be made to determine the potential for
archaeological significance of the site: Provided,
That when the discovery is made
by an archaeological investigation permittedunder state or
federal law, the supervising archaeologist shall notify the
director of the historic preservation section directly.
If the director of the historic preservation section determines
that the site has no archaeological significance, the removal,
transfer and disposition of the remains shall be subject to
the provisions of article thirteen, chapter thirty-seven of
this code, and the director shall notify the circuit court
of the county wherein the site is located.
If the director of historic preservation determines that the
site has a potential for archaeological significance, the
director shall take such action as is reasonable, necessary
and prudent, including consultation with appropriate private
or public organizations, to preserve and advance the culture
of the state in accordance with the powers and duties granted
to the director, including the issuance of a permit for the
archaeological excavation or removal of the remains. If the
director determines that the issuance of a permit for the
archaeological excavation or removal of the remains is not
reasonable, necessary or prudent, the director shall provide
written reasons to the applicant for not issuing the permit.
(e) Issuance of permits.
Prior to the issuance of a permit for the disturbance of human
skeletal remains, grave artifacts, or grave markers, the director
of historic preservation shall convene and chair an ad hoc
committee to develop permit conditions. The committee shall
be comprised of the chair and six or eight members representing
known or presumed lineal descendants, private and public organizations
which have cultural affiliation to the presumed contents of
the site, the Council for West Virginia Archaeology and the
West Virginia Archaeological Society. In the case of Native
American sites, the membership of the committee shall be comprised
of the chair and six or eight members representing the Council
for West Virginia Archaeology, the West Virginia Archaeological
Society, and known or presumed lineal descendants, preferably
with cultural affiliation to tribes that existed in the geographic
area that is now West Virginia.
In the case of a site of less then five acres, which is owned
by an individual or partnership, the ad hoc committee must
be formed within thirty days of application for same by the
property owner, must meet within sixty days of such application,
and must render a decision within ninety days of such application.
All such permits shall at a minimum address the following
conditions: (1) The methods by which lineal descendants of
the deceased are notified prior to the disturbance; (2) the
respectful manner in which the remains, artifacts or markers
are to be removed and handled; (3) scientific analysis of
the remains, artifacts or markers and the duration of those
studies; (4) the way in which the remains may be reburied
in consultation with any lineal descendants, when available;
(5) methods for the respectful curation of recovered items;
and (6) such other conditions as the director may deem necessary.
Expenses accrued in meeting the permit conditions shall be
borne by the permit applicant, except in cases where the deceased
descendants or sponsors are willing to share or assume the
costs. A permit to disturb human skeletal remains, grave artifacts
or grave markers will be issued only after alternatives to
disturbance and other mitigative measures have been considered.
In addition, a person applying for a permit to excavate or
remove human skeletal remains, grave artifacts, grave markers,
or any historic or prehistoric features of archaeological
significance may provide to the ad hoc committee information
he or she deems appropriate and shall:
(1) Provide a detailed statement to the director of the historic
preservation section giving the reasons and objectives for
excavation or removal and the benefits expected to be obtained
from the contemplated work;
(2) Provide data and results of any excavation, study orcollection
in annual reports to the director of the historic preservation
section and submit a final report to the director upon completion
of the excavation;
(3) Obtain the prior written permission of the owner if the
site of such proposed excavation is on privately owned land;
and
(4) Provide any additional information the ad hoc committee
deems necessary in developing the permit conditions.
Such permits shall be issued for a period of two years and
may be renewed at expiration. The permits are not transferable
but other persons who have not been issued a permit may work
under the direct supervision of the person holding the permit.
The person or persons to whom a permit was issued must carry
the permit while exercising the privileges granted and must
be present at the site whenever work is being done.
Notwithstanding any other penalties to which a person may
be subject under this section for failing to comply with the
terms and conditions of a permit, the permit of a person who
violates any of the provisions of this subsection shall be
revoked.
As permits are issued, the director of the historic preservation
section shall maintain a catalogue of unmarked grave locations
throughout the state.
(f) Property tax exemption for unmarked grave sites.
To serve as an incentive for the protection of unmarked graves,
the owner, having evidence of the presence of unmarked graves
on his or her property, may apply to the director of the historic
preservation section for a determination as to whether such
is the case. Upon making such a determination in the affirmative,
the director of the historic preservation section shall provide
written certification to the landowner that the site containing
the graves is a cemetery and as such is exempt from property
taxation upon presentation of the certification to the county
assessor. The area of the site to receive property tax exempt
status shall be determined by the director of the historic
preservation section. Additionally, a property owner may establish
protective easements for the location of unmarked graves.
(g) Additional provisions for enforcement; civil penalties;
rewards for information.
(1) The prosecuting attorney of the county in which a violation
of any provision of this section is alleged to have occurred
may be requested by the director of the historic preservation
section to initiate criminal prosecutions or to seek civil
damages, injunctive relief and any other appropriate relief.
The director of the historic preservation section shall cooperate
with the prosecuting attorney in resolving such allegations.
(2) Persons convicted of any prohibited act involving the
excavation, removal, destruction, disturbance or offering
for sale or exchange of historic or prehistoric ruins, burial
grounds, archaeological site, human skeletal remains, unmarked
grave, grave artifact or grave marker under the provisions
of subdivisions (1) and (2), subsection (c) of this section
shall also be liable for civil damages to be assessed by the
prosecuting attorney in consultation with the director of
the historic preservation section.
Civil damages may include:
(i) Forfeiture of any and all equipment used in disturbing
the protected unmarked graves or grave markers;
(ii) Any and all costs incurred in cleaning, restoring, analyzing,
accessioning and curating the recovered material;
(iii) Any and all costs associated with recovery of data,
and analyzing, publishing, accessioning and curating materials
when the prohibited activity is so extensive as to preclude
the restoration of the unmarked burials or grave markers;
(iv) Any and all costs associated with restoring the land
to its original contour or the grave marker to its original
condition;
(v) Any and all costs associated with reinterment of the human
skeletal remains; and
(vi) Any and all costs associated with the determination and
collection of the civil damages.
When civil damages are recovered, the proceeds, less the costs
of the prosecuting attorney associated with the determination
and collection of such damages, shall be deposited into the
endangered historic properties fund and may be expended by
the commissioner of culture and history for archaeological
programs at the state level, including the payment of rewards
for information leading to the arrest and conviction of persons
violating the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(3) The commissioner of culture and history is authorized
to offer and pay rewards of up to one thousand dollars from
funds on deposit in the endangered historic properties fund
for information leading to the arrest and conviction of persons
who violate the provisions of subdivisions (1) and (2), subsection
(c) of this section.
(h) Disposition of remains and artifacts not subject
to reburial.
All human skeletal remains and grave artifacts found in unmarked
graves on public or private land, and not subject to reburial,
under the provisions of subsection (e) of this section, are
held in trust for the people of West Virginia by the state
and are under the jurisdiction of the director of historic
preservation. All materials collected and not reburied through
this section shall be maintained with dignity and respect
for the people of the state under the care of the West Virginia
state museum.
§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:
(a) For the construction, maintenance and operation of railroad
and traction lines (including extension, lateral and branch
lines, spurs, switches and sidetracks), canals, public landings,
wharves, bridges, public roads, streets, alleys, parks and
other works of internal improvement, for the public use;
(b) For the construction and maintenance of telegraph, telephone,
electric light, heat and power plants, systems, lines, transmission
lines, conduits, stations (including branch, spur and service
lines), when for public use;
(c) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities for manufacturing gas
and for transporting petroleum oil, natural gas, manufactured
gas, and all mixtures and combinations thereof, by means of
pipes, pressure stations or otherwise, (including the construction
and operation of telephone and telegraph lines for the service
of such systems and plants), and for underground storage areas
and facilities, and the operation and maintenance thereof,
for the injection, storage and removal of natural gas in subterranean
oil and/or gas bearing stratum, which, as shown by previous
exploration of the stratum sought to be condemned and within
the limits of the reservoir proposed to be utilized for such
purposes, has ceased to produce or has been proved to be nonproductive
of oil and/or gas in substantial quantities, when for public
use, the extent of the area to be acquired for such purpose
to be determined by the court on the basis of reasonable need
therefor. Nothing in this subsection shall be construed to
interfere with the power of the state and its political subdivisions
to enact and enforce ordinances and regulations deemed necessary
to protect the lives and property of citizens from the effects
of explosions of oil or gas;
(d) For constructing, maintaining and operating, water plants
and systems, including lines for transporting water by any
corporate body politic, or private corporation, for supplying
water to the inhabitants of any city, town, village or community,
for public use, including lands for pump stations, reservoirs,
cisterns, storage dams, and other means of storing, purifying
and transporting water, and the right to take and damage lands
which may be flooded by the impounded waters, and to appropriate
any spring, stream and the surrounding property necessary
to protect, preserve and maintain the purity of any such spring,
stream, reservoir, cistern and water impounded by means of
any storage dam;
(e) For the purpose of constructing, maintaining and operating
sewer systems, lines and sewage disposal plants, to collect,
transport and dispose of sewage. When in the interest of the
public welfare and the preservation of the public health,
the construction of a sewer line to serve a single building
or institution shall be deemed a public use, and, for such
purpose, the right of eminent domain, if within a municipal
corporation, may be exercised in the name of a municipal corporation,
and if not within a municipal corporation, in the name of
the county court of the county in which the property is located;
(f) For the reasonable
use by an incorporated company engaged in a public enterprise
of which the state or any county or municipality is the sole
or a part owner;
(g) For courthouses
and municipal buildings, parks, public playgrounds, the location
of public monuments, and all other public buildings;
(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;
(i) For public schools, public libraries and public hospitals;
(j) For the construction and operation of booms (including
approaches, landings and ways necessary for such objects),
when for a public use;
(k) By the state of West Virginia for any and every other
public use, object and purpose not herein specifically mentioned.
By the United States of America for each and every legitimate
public use, need and purpose of the government of the United
States, within the purview, and subject to the provisions
of chapter one of this code;
(l) For constructing, maintaining and operating pipelines,
plants, systems and storage facilities, for the transportation
by common carrier as a public utility of coal and its derivatives
and all mixtures and combinations thereof with any substance
by means of pipes, pressure stations or otherwise (including
the construction and operation of telephone and telegraph
lines for the service of such systems and plants), for public
use: Provided, That the common carrier engages in some
intrastate activity in this state, if there is any reasonable
demand therefor: Provided, however, That in addition
to all other requisites by federal or state constitutions,
statute or common law required for the taking of private property
for public use, a further prerequisite and condition precedent
to the exercise of such taking of or damage to private property
for public use as in this subsection hereinabove provided,
is that the public service commission of this state, in an
appropriate hearing and proceeding on due notice to all interested
persons, firms or corporations, in accordance with the procedure
now or hereafter established by statute and the regulations
thereunder, shall have found that such pipeline transportation
of coal and its derivatives and all mixtures and combinations
thereof is required for the public convenience and necessity,
and that the public service commission of this state shall
not extend a certificate of convenience and necessity or make
such finding of public convenience and necessity unless, in
addition to the other facts required to support such findings,
it shall have been established by the applicant therefor that
the patents and other similar rights under which the applicant
proposes to construct, maintain or operate such pipeline,
plants, systems and storage facilities shall be and shall
remain equally available, insofar as said subsequent applicant
may determine such availability, upon fair and reasonable
terms, to other bona fide applicants seeking a certificate
of convenience and necessity and finding of fact for any other
pipeline in West Virginia; for the purpose of making the findings
hereinbefore set forth the public service commission shall
have and exercise jurisdiction, and that the aforesaid findings
in this proviso above set forth shall be subject to judicial
review as in other public service commission proceedings.
It is the intention of the Legislature in amending this section
by the addition of subdivision (1) as set forth above to extend
the right of eminent domain to coal pipelines for public use;
to provide for regulation of such coal pipelines by the public
service commission of this state or the interstate commerce
commission of the United States of America, or both; to assure
that such rights shall be extended only to public utilities
or common carriers as distinguished from private carriers
or contract carriers; to make patents covering the same equally
available to others on fair and reasonable terms; and to prevent
monopolistic use of coal pipelines by any users thereof which
would result in any appreciable economic detriment to others
similarly situated by reasons of any such monopoly.
§35-5A-1. Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
shall have the following meanings:
(a) "Person" means any corporation, company, partnership,
individual, association or other entity owning or operating
a cemetery for the disposition of human remains.
(b) "Perpetual care cemetery" means a cemetery which
advertises or represents to the public in any manner that
it provides perpetual care or maintenance for burial grounds,
mausoleums or columbaria and the fixtures attached thereto
or which sells or offers to sell any interment right which
is to be perpetually cared for or maintained.
(c) "Interment" means the disposition of human remains
by earth burial, entombment or inurnment.
(d) "Burial right" means the right of earth interment.
(e) "Entombment right" means the right of entombment
in a mausoleum.
(f) "Columbarium right" means the right of inurnment
in a columbarium for cremated remains.
(g) "Permanent endowment care fund" means a fund
held in an irrevocable trust separate and apart from all other
assets of the cemetery and dedicated for the exclusive use
of perpetual care and maintenance of such cemetery.
§35-5-2. Sale
of part of cemetery; prohibitions.
The trustees of any burial grounds, or
any incorporated cemetery association whenever
it is deemed advisable by such trustees or association, and
is not prohibited by the terms of the conveyance, dedication
or devise of such grounds, may sell and convey any part of
such burial grounds or land of such association, without restriction
as to its use, if such sale and conveyance will not render
any lot previously sold for burial purposes inaccessible for
such purposes, or detach it from the main body of the cemetery.
But no such sale shall be made by such trustees or such association
unless authorized by a majority of the lot owners present
and voting at a general meeting or special meeting, of which
meeting and its object previous notice shall be given by advertising
the same as Class II legal advertisement in compliance with
the provisions of article three, chapter fifty-nine of this
code, and the publication area for such publication shall
be the county in which the cemetery is situated. No desecration
shall be made of any grave or monument, or any of the walks,
drives, trees, or shrubbery within the enclosure of any burial
grounds; nor shall any shaft or entry be made within the enclosure
of such burial grounds, or any building be erected therein
for any purpose whatever other than cemetery purposes.
§35-5-3. Permanent
endowment funds for cemetery associations -- How created.
There is hereby authorized the creation of permanent endowment
funds for cemetery associations to be known as "permanent
endowment funds," the income from which is to be annually
spent by such cemetery associations, or their successors,
in beautifying and maintaining cemeteries owned or controlled
by such associations. The "permanent endowment funds"
are to be created by depositing in such funds all permanent
funds derived from all sources set apart by the board of directors
of such associations, and by donations, gifts and bequests
made to such cemetery associations for such purpose.
§35-5-4. Same
-- How invested; report of trustee; disposition of income.
The principal of such permanent endowment fund shall be
invested in some safe securities, to be approved by the board
of directors of such cemetery association, or its successors,
in the name of a trustee appointed as hereinafter provided.
Such trustee shall make an annual report to the board of directors
of such cemetery association showing the amount of the permanent
endowment fund at the beginning of each year, the names of
the donors, if any, and the amounts contributed by each during
the year in which the report is made, the income derived from
such fund during the year, and the amount on hand at the end
of the year; and a copy of such report shall be filed with
the clerk of the county court of the county in which such
cemetery association is located. The trustee during the year,
or at the end thereof, shall turn over to such cemetery association,
or its successor, all income derived from such permanent endowment
fund during the year, which shall be expended in accordance
with this article.
§35-5A-3. Establishment
of permanent endowment care funds.
No person desiring to organize, develop and operate a
perpetual care cemetery in West Virginia after the first day
of July, one thousand nine hundred seventy-three, shall offer
to sell or sell any burial lot, burial right, entombment right
or columbarium right in such cemetery, without first establishing
a permanent endowment trust fund, segregated from all other
assets, and placing therein a minimum of ten thousand dollars
in cash, or in bonds of the United States government or of
the state of West Virginia.
Whenever any such person has placed an additional ten thousand
dollars in the permanent endowment care fund out of gross
sales proceeds or from any other source, such person after
submitting satisfactory proof of this fact to its trustee
may withdraw the original sum of ten thousand dollars from
the permanent endowment care fund.
No person operating an established perpetual care cemetery
in West Virginia on or before the first day of July, one thousand
nine hundred seventy-three, shall continue to operate such
cemetery without creating a permanent endowment fund and making
regular deposits to such fund as required in section four
of this article and entrusting the administration of such
fund as required in section five of this article.
§35-5A-5. Trustee
of the permanent endowment care funds.
The trustee of the permanent endowment care fund shall
be a federally insured trust company or a federally insured
banking institution with fiduciary powers authorized and qualified
to exercise trust powers under and subject to the provisions
of article four, chapter thirty-one-a of this code, or of
the corresponding law of another state. A nonresident federally
insured trust company or nonresident federally insured banking
institution so authorized and qualified may become a trustee
of a permanent endowment care fund notwithstanding the provision
of section seven, article eight-a, chapter thirty-one-a of
this code. When a nonresident trust company or nonresident
banking institution becomes a trustee of a permanent endowment
care fund for a perpetual care cemetery in this state, said
nonresident trust company or nonresident banking institution
thereby constitutes the secretary of state as its true and
lawful attorney-in-fact upon whom service of notice and process
in any action or proceeding against it as trustee, and acceptance
of such trust by said nonresident trust company or nonresident
banking institution shall be a manifestation of agreement
that any notice or process, which is served in the manner
hereinafter provided in this section, shall be of the same
legal force and validity as though such nonresident trust
company or nonresident banking institution was personally
served with notice and process within this state. Service
of such notice and process and the manner of acceptance of
the same by the secretary of state shall be in accordance
with the provisions of section fifteen, article one, chapter
thirty-one of this code.
Any nonresident trust company or nonresident banking institution
appointed as trustee of a permanent endowment care fund shall
immediately upon acceptance of the trust give bond in accordance
with the provisions of section five, article five, chapter
thirty-five of this code.
The trustee shall invest such permanent endowment care funds
for the purpose of providing an income to be used for the
maintenance, improvement and preservation of the grounds,
lots, buildings, equipment, records, statuary, and other real
and personal property of the cemetery, and shall acquire,
invest, reinvest, exchange, retain, sell and manage all property
now or hereafter coming into such trustee's care or control.
The trustee shall exercise the judgment and care under the
circumstances then prevailing, which men of prudence, discretion
and intelligence, exercise in the management of their own
affairs, not in regard to speculation, but in regard to the
permanent disposition of their funds, considering the probable
income as well as the probable safety of their capital.
Within the limitations of the foregoing standard, any such
trustee is authorized to acquire and retain without any order
of any court, every kind of property, real, personal or mixed,
and every kind of investment, specifically including, but
not by way of limitation, bonds, debentures and other corporate
obligations, and stocks, preferred or common, which men of
prudence, discretion and intelligence acquire or retain for
their own account.
The trustee shall prepare an annual report of all of the assets
and investments of the permanent endowment care fund. One
copy shall be maintained at the office of the cemetery and
shall be available for inspection at reasonable times by owners
of interment rights in the cemetery.
The trustee shall pay over to the cemetery all income derived
from the permanent endowment care fund semiannually to be
expended only for the maintenance, improvement and preservation
of the grounds, lots, buildings, equipment, records, statuary
and other real and personal property of the cemetery.
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§35-5B-1.
Definitions.
The following words and phrases as used in this article,
unless a different meaning is clearly indicated by the context,
have the following meanings:
(1) "Burial vault" means a protective container
for a casket which is used to prevent a grave from sinking.
(2) "Cemetery" means and includes all land and appurtenances
including roadways, office buildings, outbuildings and other
structures used or intended to be used for or in connection
with the interment of human remains. The sprinkling of ashes
or their burial in a biodegradable container on church grounds
or their placement in a columbarium on church property does
not constitute the creation of a cemetery.
(3) "Cemetery company" or "seller" means
any person, partnership, firm or corporation engaged in the
business of operating a cemetery or selling property, goods
or services used in connection with interring or disposing
of the remains or commemorating the memory of a deceased human
being, where delivery of the property or goods or performance
of the service may be delayed later than one hundred twenty
days after receipt of the initial payment on account of such
sale. Such property, goods or services include, but are not
limited to, burial vaults, mausoleum crypts, lawn crypts,
memorials, marker bases and opening and closing and/or interment
services, but do not include graves or incidental additions
such as dates, scrolls or other supplementary matter representing
not more than ten percent of the total contract price.
(4) "Commissioner" or "tax commissioner"
means the secretary of the West Virginia department of tax
and revenue.
(5) "Compliance agent" means a natural person who
owns or is employed by a cemetery company to assure the compliance
of the cemetery company with the provisions of this article.
(6) "Cost requirement" means the total cost to the
seller of the property, goods or services subject to the deposit
requirements of section four of this article required by that
seller's total contracts.
(7) "Delivery" means that the seller has transferred
physical possession of the identified goods, has attached
or installed such goods at the designated interment space
or has actually furnished preneed cemetery company contract
services. In the case of preneed goods which are identified
with the name of the buyer or other contract beneficiary,
"delivery" may also occur when: (A) The seller pays
for and stores the goods at the cemetery where they are intended
to be used; or (B) the seller has paid the supplier of such
goods and the supplier has caused such merchandise to be manufactured
and stored, has caused title to such merchandise to be transferred
to the buyer or other contract beneficiary and has agreed
to ship such merchandise upon his or her request.
(8) "Grave" means a below-ground right of interment.
(9) "Interment" means the disposition of human remains
by earth burial, entombment or inurnment.
(10) "Lawn crypt" means a burial receptacle, usually
constructed of reinforced concrete, installed underground
in quantity on gravel or tile underlay. Each crypt becomes
an integral part of the given garden area and is considered
real property.
(11) "Marker base" means the visible part of the
base or foundation upon which the memorial, marker or monument
rests and is considered personal property.
(12) "Mausoleum crypt" means a burial receptacle
usually constructed of reinforced concrete and usually constructed
or assembled above the ground and is considered real property.
(13) "Memorials, markers or monuments" means the
object used to identify the deceased including the base and
is considered personal property.
(14) "Opening and closing or interment service"
means any service associated with the excavation and filling
in of a grave in a manner which will not disturb or invade
adjacent grave sites.
(15) "Preneed" means at any time other than either
at the time of death or while death is imminent.
(16) "Preneed cemetery company contract" means a
contract for the sale of real and personal property, goods
or services used in connection with interring or disposing
of the remains or commemorating the memory of a deceased human
being, where delivery of the property or performance of the
service may be delayed for more than one hundred twenty days
after the receipt of initial payment on account of such sale.
Such property, goods or services include, but are not limited
to, burial vaults, mausoleum crypts, lawn crypts, memorials,
marker bases and opening and closing and/or interment services,
but do not include graves or incidental additions such as
dates, scrolls or other supplementary matter representing
not more than ten percent of the total contract price.
(17) "Seller's trust account" means the total specific
funds deposited from all of a specific seller's contracts,
plus income on such funds allotted to that seller.
(18) "Specific trust funds" means funds identified
with a certain preneed cemetery company contract for personal
property, goods or services.
(19) "Trustee" means any natural person, partnership
or corporation, including any bank, trust company, broker-dealer,
foreign state charter trust, savings and loan association
or credit union which receives money in trust pursuant to
any agreement or contract made pursuant to the provisions
of this article
§35-5B-2.
Information filing; fees, compliance agent.
On or after the first day of July, one thousand nine hundred
ninety-three, no person, partnership, firm or corporation
may engage in the business of operating a cemetery company
in this state without having first paid an annual registration
fee established by the tax commissioner in an amount not to
exceed four hundred dollars, and filing with the tax commissioner
certain information which shall include the name and addresses
of all officers, owners and directors of the cemetery company
and the name of the designated compliance agent. The cemetery
company shall notify the tax commissioner of any changes in
the information required to be filed within ninety days of
the date on which the change occurs. A new filing shall also
be required if there is a change in the ownership of the cemetery
company or if there is a change in the name of the compliance
agent designated by the cemetery company. The cemetery company
shall pay an additional fee as established by the commissioner
in connection with the reporting of such changes, not to exceed
one hundred dollars. There is hereby created in the state
treasury a special account to be known as the "cemetery
company account" into which all fees collected under
this article shall be deposited: Provided, That amounts
collected which are found from time to time to exceed funds
needed for the purposes set forth in this article may be transferred
to other accounts or funds and redesignated for other purposes
by appropriation of the Legislature. Funds in this account
shall be expended upon appropriation of the Legislature by
the secretary of tax and revenue in connection with the administration
of this article.
§35-5B-3.
Exemptions.
The provisions of this article do not apply to:
(1) Sales of property, goods and services subject to the provisions
of article fourteen, chapter forty-seven of this code;
(2) Sales of services by perpetual care cemeteries subject
to the provisions of article five-a of this chapter;
(3) Sales of property, goods and services by cemeteries owned
and operated by a county, municipal corporation, by a church
or by a nonstock corporation not operated for profit if the
cemetery: (A) Does not compensate any officer or director
except for reimbursement of reasonable expenses incurred in
the performance of official duties; (B) does not sell or construct
or directly or indirectly contract for the sale or construction
of vaults or lawn or mausoleum crypts; and (C) uses proceeds
from the sale of all graves and entombment rights for the
sole purpose of defraying the direct expenses of maintaining
the cemetery;
(4) Sales of property, goods and services by community
cemeteries not operated for profit if the cemetery: (A) Does
not compensate any officer, owner or director except for reimbursement
of reasonable expenses incurred in the performance of official
duties; and (B) uses the proceeds from the sale of the graves
for the sole purpose of defraying the direct expenses of maintaining
its facilities; and
(5) Sales of property, goods and services by family cemeteries
wherein lots or spaces are not offered for public sale.
§35-5-5.
Permanent endowment funds for cemetery associations -- Trustee
therefor; appointment; bond; compensation; vacancy.
The board of directors of any such cemetery association
shall appoint a trustee, who shall be a responsible businessman
or some solvent federally insured banking institution, to
act as such trustee for a period of two years, or until his,
or its, successor is appointed. Such trustee shall be known
as the trustee of the permanent endowment fund of such cemetery
association, and shall immediately upon his, or its, appointment
and acceptance of the trust, give bond to the said cemetery
association, with some solvent and reliable bonding company
authorized to do business in this state, in a sum equal to
the amount which may come into the hands of such trustee,
which bond shall be increased or diminished from time to time
so as always to equal at least the amount of the trust funds
in the hands of such trustee; and the premium upon such bond
shall be paid out of the income of the trust funds in the
trustee's hands and as part of the cost of the administration
of the trust fund. No trustee appointed under this section
shall enter upon the discharge of his, or its, duties until
such bond is given and approved by the board of directors
of such cemetery association: Provided, That if the
trustee so appointed by any such cemetery association be a
federally insured banking institution authorized and qualified
to exercise trust powers under and subject to the provisions
of article four, chapter thirty-one-a of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
it shall not be required to give the bond hereinbefore provided,
excepting and unless required by the provisions of section
eighteen, article four, chapter thirty-one-a of said code.
The board of directors of such cemetery association shall
allow such trustee, for service as such, a negotiable, reasonable
fee to be paid from such trust funds. In the event of a vacancy
in such trusteeship, or failure of the board of directors
of any such cemetery association to appoint such trustee,
after being requested so to do by any stockholder of any such
cemetery association, or its successor, or any citizen interested,
application may be made to the circuit court of the county
wherein such cemetery association is located, and it shall
be the duty of the circuit court of such county to appoint
a trustee, who, when so appointed and qualified, shall have
all the powers and perform all the duties of such trustee
as provided in this section.
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