New Jersey-2014-S704-Introduced

An Act concerning the preservation of family or private burial grounds, supplementing Title 40 of the Revised Statutes, and amending P.L.2003, c.261.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) This act shall be known and may be cited as the "Family and Private Burial Grounds Preservation Act."

2. (New section) As used in this act:

"Burial materials" means human skeletal remains or burial objects recovered from an interment space.

"Burial objects" means any items or artifacts directly associated with human burials, which items or artifacts were intentionally deposited in an interment space as a part of a mortuary ritual at the time of interment.

"Cemetery" means the same as that term is defined pursuant to section 2 of the "New Jersey Cemetery Act, 2003," P.L.2003, c.261 (C.45:27-2).

"Cemetery company" means a nonprofit corporation, a for-profit corporation, partnership, association, or other private entity, or any other individual or entity that directly or indirectly owns, manages, operates or controls a cemetery, and which corporation, partnership, association, entity, or individual has been authorized to manage or operate the cemetery pursuant to a certificate of authority issued by the New Jersey Cemetery Board pursuant to the "New Jersey Cemetery Act, 2003," P.L.2003, c.261 (C.45:27-1 et seq.).

"Department" means the Department of Environmental Protection.

"Relative" means a family member, blood or marriage relation, descendant, or individual in the line of ancestry of a person, and includes the person's parents, children, siblings, grandparents, great-grandparents, grandchildren, great-grandchildren, aunts, uncles, nieces, and nephews.

"Disturb" or "disturbance" means any activity that significantly harms the character, condition, or physical integrity of a family or private burial ground.

"Economic benefit" means: (a) savings gained, and that may be realized, from avoided burial ground maintenance costs; (b) investment returns earned, and that may be earned, on the amount of avoided burial ground maintenance costs; (c) investment and resale value gained, and that may be realized, from an increase in the usability of land on which the burial ground is located, or from an improvement of the aesthetics thereof; and (d) any other financial benefit gained, and that may be realized, from a violation of section 4 or 5 of this act.

"Family or private burial ground" or "burial ground" means a cemetery into which the human skeletal remains of two or more persons have been intentionally deposited, and the location of which has been clearly identified through the intentional placement of stone tablets, markers, or tombstones, fencing, memorial stones or statues, or through some other obvious means, and which cemetery (1) is not owned or operated by a government entity, by a religious corporation or organization, or by a cemetery company that has received authorization to operate pursuant to the provisions of the "New Jersey Cemetery Act, 2003," P.L.2003, c.261 (C.45:27-1 et seq.), and (2) is located on a parcel of land that has never been used for the purpose of public burials. "Family or private burial ground" or "burial ground" shall not include a crematory, as defined by section 2 of P.L.2003, c.261 (C.45:27-2).

"Human skeletal remains" or "remains" means a body, or part of a body, of a deceased human being, or the recoverable human bone fragments resulting from the process of cremation.

"Interment space" means a grave, or a tomb, crypt, or some other similarly-purposed structure, whether originally situated below, on, or above the surface of the ground, into which the human remains of a deceased person have been intentionally deposited as a part of death rites, rituals, or ceremonies.

"Maintenance and preservation" means all of the activities undertaken to uphold or sustain the character, condition, and physical integrity of a family or private burial ground, and includes the ordinary care and upkeep of the burial ground.

"Permanent disinterment" means the dismantling of a family or private burial ground and the permanent removal therefrom of all human skeletal remains and burial objects, memorial structures and markers, crypts or other moveable interment spaces contained therein, and fences, railings, or other structures bounding the same, which permanent removal has been authorized by the department pursuant to section 5 or 8 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill).

3. (New section) The Department of Environmental Protection shall administer the provisions of this act and shall have general supervision and regulatory authority, and jurisdiction, over all family or private burial grounds in the State.

a. The department shall have the power to:

(1) apply for, accept, and receive grant or loan money from any federal, State, or other public or private source, and solicit and accept gifts, legacies, bequests, and endowments for, or in aid of, the purposes of this act;

(2) enter into any agreement or contract, execute any instrument, and perform any act or thing necessary, convenient, or desirable to carry out any power expressly given in this act;

(3) authorize and effectuate the permanent disinterment of human skeletal remains and burial objects interred in a burial ground, pursuant to the provisions of section 5 or 8 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill);

(4) request assistance from, and avail itself of the services of, the employees of any State, county, or municipal department, board, commission, or agency as may be necessary to carry out any power expressly given in this act;

(5) institute an action in the Superior Court for injunctive or other relief, as is necessary to enforce this act or the rules and regulations established hereunder; and

(6) in accordance with the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), adopt, amend, and repeal rules and regulations and issue orders as may be necessary to carry out the purposes of this act.

b. The department shall have the duty to:

(1) formulate policies for the maintenance and preservation of family or private burial grounds in the State;

(2) establish, maintain, and regularly update a written record and map of all family or private burial grounds in the State, and make the same information available for review by the public;

(3) prepare and distribute informational materials to advise the public with respect to New Jersey's family or private burial grounds;

(4) timely review and respond to all proposals regarding construction, excavation, or building activities anticipated to take place on or near a family or private burial ground, or regarding the municipal conversion of a burial ground; and

(5) submit biennially a report to the Governor, and pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), to the Legislature, describing the activities undertaken by the department during the preceding two years in relation to this act, accounting for any moneys collected and used pursuant to this act, and providing any recommendations or requests it deems appropriate to further the purposes of the act.

4. (New section) a. Except when approval is obtained from the appropriate authority or authorities, as provided by this act, it shall be unlawful for any person to intentionally, willfully, or knowingly:

(1) disturb, destroy, mutilate, deface, or injure a family or private burial ground or any human skeletal remains or burial objects contained therein;

(2) tamper with an interment space, or expose through excavation, disinter, or remove any human skeletal remains or burial objects from a burial ground's interment spaces;

(3) destroy, mutilate, deface, injure, knock down, or remove any ornamentation, or any tombstone, monument, stone marker, statue, or other memorial structure in a family or private burial ground;

(4) destroy, mutilate, deface, injure, knock down, or remove any fence, railing, or other structure that has been erected along the boundary of a family or private burial ground; or

(5) allow any person, entity, or group access, or facilitate such access, to a family or private burial ground for any of the purposes identified in paragraphs (1) through (4) of this subsection.

b. The department shall ensure that any human skeletal remains or burial objects that have been unlawfully disinterred in violation of the provisions of subsection a. of this section are reinterred in accordance with the provisions of section 9 of this act. P.L. , c. (C. ) (pending before the Legislature as this bill).

c. This section shall not apply to a person or entity, or the representative thereof, who destroys, injures, or removes a tombstone, monument, stone marker, statute, or other memorial structure, or a fence, railing, or other boundary marker in a family or private burial ground for purposes that are consistent with the maintenance and preservation of the burial ground as a burial ground.

5. (New section) a. Any new construction, excavation, or building in the area of a family or private burial ground shall comply with local land use regulations concerning burial sites, burial grounds, or cemeteries. In the absence of applicable local regulations, no new construction, excavation, or building shall be conducted within 15 feet of the boundaries of a family or private burial ground, except when such construction, excavation, or building is approved, in writing, by a relative of each person interred in the burial ground, or when such construction, excavation, or building is necessary:

(1) to protect or preserve the public health, as determined by the governing body of the municipality, by the local board of health, or by the Department of Health and Senior Services, or as ordered by the Superior Court based on good cause shown;

(2) for the construction of a capital improvement or for construction activities related to the provision of an essential public service, as approved by the governing body of the municipality with concurrence from the department;

(3) for the construction of a State highway, as approved by the Commissioner of Transportation with concurrence from the department; or

(4) for the construction, in accordance with the provisions of subsection b. of this section, of a private sewer line connection to a public sewer system, as approved by the governing body of the municipality with concurrence from the department.

b. No new construction of a private sewer line connection to a public sewer system shall be undertaken pursuant to the provisions of subsection a. of this section unless:

(1) no other practicable alternative exists;

(2) the excavation or construction will take place at the maximum possible distance from the burial ground;

(3) public notice is provided by the affected municipality in a manner that allows at least two weeks for members of the public to submit testimony prior to any approval, construction, excavation, or building; and

(4) no construction or excavation equipment will be placed on any part of the burial ground or within six feet thereof at any time during the construction of the sewer connection.

c. If the disbanding of a burial ground is deemed by the department to be necessary and appropriate for the purposes of facilitating construction, excavation, or building activities that have been approved pursuant to this section, or if such action is approved, in writing, by a relative of each person interred in the burial ground, the department may authorize the permanent disinterment of the human skeletal remains and burial objects contained within the burial ground and their reinterment in another cemetery.

d. A person who provides written relative approval, as provided by this section, for any construction, excavation, or building activities occurring on or near a burial ground, or for the permanent disinterment of human skeletal remains contained in a burial ground, warrants the truth of the facts stated and the authority to authorize such activity. Any person who falsifies information in violation of this subsection shall be liable, in addition to any other penalties authorized by this act, for damages caused by a false statement.

6. (New section) a. The owner of real property containing a family or private burial ground shall notify the department of the existence thereof within 120 days after the effective date of this act. The notice shall include, as indicated on tombstones or memorial plaques, or as otherwise known and substantiated by the property owner, the names, birthdates, and deathdates of the persons interred in the burial ground.

b. (1) The department shall determine, based on an evaluation of the information contained in a notice that is submitted in accordance with subsection a. of this section, or through any other reasonable inquiry or investigation, whether a family or private burial ground qualifies as a "historic cemetery," as that term is defined by section 3 of P.L.1983, c.294 (C.40:10B-3).

(2) The department or its authorized representatives may conduct excavation activities in a burial ground if necessary to make the determination required by this subsection. The department and its authorized representatives shall disturb the burial ground as little as possible, and shall remedy, to the greatest extent possible, any disturbance that is caused during the entity's exploration and excavation of the area. Any human skeletal remains or burial objects that are unearthed as a result of excavation activities authorized by this paragraph shall be reinterred in accordance with the provisions of section 9 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), as soon as is reasonably possible after a determination has been made by the department pursuant to this subsection.

(3) The owner of property on which a family or private burial ground is located shall provide a reasonable means of ingress and egress over his or her private land to the burial ground, as is necessary to facilitate the work of the department pursuant to this subsection.

(4) Within 30 days after a determination is made by the department pursuant to this subsection, the department shall: (a) submit to the owner of the real property on which the burial ground is located, a disclosure statement describing the evidence, if any, that was recovered at the location, and providing a notation as to the department's conclusion regarding the status and nature of the burial ground as a historic cemetery; and (b) notify the governing body of the municipality in which the burial ground is located of the presence of the burial ground therein and its status as a historic cemetery. The department's notice to the municipality shall include a legal description of the land on which the burial ground is located, and shall identify the approximate location and size of the burial ground thereon, and the number of interment spaces contained therein.

7. (New section) a. The owner of real property containing a family or private burial ground shall take appropriate action, prior to conveyance of the property, to ensure that the deed accurately reflects the presence the burial ground thereon.

b. The owner of real property containing a family or private burial ground shall not permit any new interments in the burial ground.

8. (New section) a. The owner of real property containing a family or private burial ground may apply to the governing body of the municipality to take possession of the burial ground, and may convey to the municipality the person's interest therein.

b. Whenever the owner of real property containing a burial ground has neglected to care for the burial ground, so that in the opinion of the department or the local board of health, the burial ground has become a detriment to the public health or safety, or a public nuisance, the department or the local board of health, as the case may be, may apply to the governing body of the municipality to take possession of the burial ground pursuant to the "Eminent Domain Act of 1971," P.L.1971, c.361 (C.20:3-1 et seq.).

c. If a conveyance or acquisition made pursuant to this section would cause a burial ground to be inaccessible from any public way, the conveyance or acquisition shall be made subject to an easement over the property owner's private land, for the benefit of the spouse and relatives of any person interred in the burial ground, and for the use of any person or entity authorized by the municipality to conduct maintenance and preservation activities at the burial ground. The easement may be used only for persons to walk in a direct route from the public way nearest the burial ground to the burial ground at reasonable hours.

d. A burial ground that is conveyed to, or acquired by, a municipality pursuant to this section shall be maintained and preserved as a burial ground, and shall not be converted to serve any other purposes, except in the case that conversion is approved, in writing, by a relative of each of the persons interred in the burial ground, or is necessary for any of the purposes listed in section 5 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), and is approved by the proper authorities, as provided in that section. In the event that a municipality receives the approvals necessary for a burial ground's conversion under this subsection, the department shall authorize the permanent disinterment of human skeletal remains and burial objects in the burial ground and their reinterment in another cemetery, in accordance with the provisions of section 9 of this act , P.L. , c. (C. ) (pending before the Legislature as this bill).

e. A person who provides written relative approval, as provided by this section, for the municipal conversion of a burial ground, warrants the truth of the facts stated and the authority to authorize such activity. Any person who falsifies information in violation of this subsection shall be liable, in addition to any other penalties authorized by this act, for damages caused by a false statement.

f. No new interments shall be permitted in any burial ground that has been conveyed to, or acquired by, a municipality pursuant to this section.

9. (New section) a. Except as provided by subsection b. of this section, the department shall take appropriate action to ensure that any human skeletal remains or burial objects either lawfully or unlawfully recovered or disinterred from a family or private burial ground are reinterred, as soon as is reasonably possible after their recovery or disinterment, in the same interment space in the burial ground from which they were taken. If the interment space of origin is unknown, the human skeletal remains or burial objects may be reinterred in any empty interment space contained within the same burial ground from which they were removed.

b. (1) When permanent disinterment is authorized by the department pursuant to section 5 or 8 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill),the department shall take appropriate action to ensure that any human skeletal remains or burial objects recovered from the burial ground pursuant to that authorization are reinterred, as soon as is reasonably possible after their disinterment, in a cemetery that is owned or operated by a cemetery company, a religious corporation or organization, or a government entity. The department may enter into a contract with any cemetery company, religious corporation or organization, or government entity owning or controlling a cemetery, or with any other person, to remove the burial materials interred in the burial ground and reinter the same in the designated new resting place; to remove from the burial ground any tombs, headstones, memorial stones or statues, or other markers or structures and replace them in the new resting place; and to provide for the proper maintenance and preservation of the new resting place.

(2) In determining an appropriate location for the reinterment of burial materials pursuant to this subsection, the department shall endeavor to comply with all reasonable requests made by relatives of the person whose burial materials are being reinterred.

(3) The department shall maintain complete and accurate records identifying the cemetery in which human skeletal remains or burial objects are reinterred pursuant to this subsection, and the identity, if known, of the persons whose remains have been reinterred in the new cemetery location.

10. (New section) a. A person who violates the provisions of this act shall be guilty of:

(1) a criminal offense, as provided by N.J.S.2C:17-3 (criminal mischief; tampering with grave site), N.J.S.2C:20-2 (general theft crimes; theft of human remains), section 1 of P.L.2007, c.321 (C.2C:20-2.3) (theft of headstones or flags from grave sites), section 1 of P.L.2002, c.127 (C.2C:22-1) (disturbance or desecration of human remains), or section 2 of P.L.1981, c.282 (C.2C:33-11) (exposure to threat of violence through defacement of private cemetery property), as applicable; or

(2) a disorderly persons offense, if none of the penalty provisions identified in paragraph (1) of this subsection is applicable to the violative conduct that forms the basis for the current conviction; or

(3) a crime of the fourth degree, if: (a) none of the penalty provisions identified in paragraph (1) of this subsection is applicable to the violative conduct that forms the basis for the current conviction, and (b) the offender has previously been convicted of an offense under this subsection.

b. Notwithstanding the provisions of N.J.S.2C:43-3 to the contrary:

(1) a person who is convicted of a disorderly persons offense under paragraph (2) of subsection a. of this section shall be subject to a fine of up to $25,000; and

(2) a person who is convicted of a crime of the fourth degree under paragraph (3) of subsection a. of this section shall be subject to a fine of no less than $25,000, nor more than $100,000, and a sentence of imprisonment, the term of which shall be determined by a court in accordance with the provisions of N.J.S.2C:43-6. A sentence of imprisonment that is imposed pursuant to this paragraph may be suspended only when the court is clearly convinced that imprisonment would result in manifest injustice.

c. (1) In addition to any other penalties authorized by law, a person who violates the provisions of section 4 or 5 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill), with the specific intent to attain an economic benefit, as defined by this act, shall be guilty of a crime of the fourth degree.

(2) Notwithstanding the provisions of N.J.S.2C:43-3 and N.J.S.2C:43-6 to the contrary, a person convicted under this subsection shall be subject to a sentence of imprisonment of not less than one year, nor more than five years, and a fine of not less than $100,000, nor more than $10,000,000. The fine imposed pursuant to this paragraph shall be consistent with, and based upon, the value of the economic benefit attained by the offender as a result of the violation.

d. If a violation of this act is of a continuing nature, each day during which the violation continues shall constitute an additional, separate, and distinct offense.

e. Any penalty amounts that are collected from criminal prosecutions initiated in accordance with this section shall be deposited into the Family and Private Burial Grounds Preservation Fund, established pursuant to section 14 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).

f. The fact that a criminal prosecution for a violation of this act is not instituted or, where instituted, terminates without a conviction, shall not preclude the filing of a civil action pursuant to the provisions of section 11 or 13 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill). A final judgment rendered in favor of the State in any criminal proceeding brought pursuant to this section shall stop the defendant from denying the same conduct in a civil action that is brought pursuant to this act.

11. (New section) a. Any person who violates the provisions of section 4 or 5 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill), or any rule or regulation adopted pursuant thereto, shall, in addition to any other penalties provided by law, be subject upon order of a court to a civil penalty of not more than $100,000 for a first offense and not more than $200,000 for any subsequent offense. A civil penalty imposed pursuant to this subsection shall be collected with costs, in the name of the commissioner, in a summary proceeding initiated pursuant to the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A-58-10 et seq.). The Superior Court and the municipal courts shall have jurisdiction over proceedings for the enforcement of penalties provided by this subsection.

b. In addition to any penalties, costs, or interest charges that may be imposed pursuant to this section, the court may assess against a violator, the value of any economic benefit accruing thereto from the violation.

c. Any moneys that are collected from a defendant pursuant to this section shall be deposited into the Family and Private Burial Grounds Preservation Fund, established pursuant to section 14 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).

12. (New section) a. Except as provided by subsection b. of this section, a person may be held liable for actions taken by the person's agent or authorized representative in violation of this act if a court finds that the person: (1) knew or reasonably should have known that the person's agent or authorized representative was, or would be, taking action in violation of the provisions of this act, and (2) facilitated, promoted, or otherwise acquiesced to the offensive action.

b. A person may be held liable under subsection c. of section 10 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill), for actions taken by the person's agent or authorized representative in violation of section 4 or 5 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill), if a court finds that the person: (1) knew that the person's agent or authorized representative was, or would be, taking action in violation of the provisions of section 4 or 5 of this act, and (2) with the specific intent to attain an economic benefit, as defined by this act, facilitated, promoted, or otherwise acquiesced to the offensive action.

c. As used in this section, "acquiescence" shall include silence or inaction in the face of an apparent violation of this act.

13. (New section) a. (1) The relative of any person interred in a burial ground that is the subject of a violation of section 4 or 5 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill),may bring a civil action for damages against the person alleged to have committed the violation. A relative seeking damages pursuant to this section shall establish, by a preponderance of the evidence, that the alleged offender took action, in violation of the provisions of section 4 or 5 of this act, which caused damage or harm to the human skeletal remains, burial objects, or interment space or adornments thereon, of any of the relative's relations. The Attorney General, as parens patriae, may initiate a cause of action against a person who violates section 4 or 5 of this act on behalf of any relatives who have sustained injury as provided in this paragraph.

(2) In a case where vicarious liability is established pursuant to section 12 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill),a relative may bring civil action for damages, in accordance with the provisions of this subsection, against either the agent who took offensive action in violation of the act's provisions, or the person who facilitated, encouraged, promoted, requested, authorized, or otherwise acquiesced to, the agent's taking of such offensive action.

(3) Upon proof, by a preponderance of the evidence, of a defendant's violation of section 4 or 5 of this act and of resulting damages to a relative as provided in paragraph (1) of this subsection, the defendant shall be liable to the relative for:

(a) civil damages in an amount of three times the value of all costs incurred by the relative to remedy the effects of the violation, which costs may include, but are not limited to, costs incurred for: (i) restoration, to the maximum extent practicable and feasible, of the injured interment space of any of the relative's relations; (ii) replacement, renovation, removal, or relocation of a tombstone, monument, stone marker, statute, or other memorial structure used in association with the interment space of any of the relative's relations; (iii) removal, relocation, and reinterment of the human skeletal remains and burial objects of any of the relative's relations; (iv) clean-up of the injured interment space of any of the relative's relations, and removal therefrom of objects or other evidence associated with, or used to facilitate, the violation of this act; and (v) restoration, as necessary and appropriate, of the land and adornments in the burial ground, which surround and complement the injured interment space of any of the relative's relations;

(b) damages for emotional distress suffered by the relative as a direct result of the violation of section 4 or 5 of this act; and

(c) reimbursement for any costs incurred by the relative for attorneys' fees, court costs, or other out-of-pocket expenses related to the litigation, except that in the case that a cause of action is initiated by the Attorney General, as parens patriae, such costs, including the costs of investigation, shall be awarded to the State.

b. The cause of action authorized by this section shall be in addition to and not in lieu of any other action, injunctive relief, or any other remedy available at law, except that an award entered pursuant to this section shall be reduced by the amount of any restitution, if any, that has been awarded for the same injury following criminal conviction or juvenile adjudication pursuant to section 10 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).

14. (New section) a. The department shall establish and manage a fund, to be known as the Family and Private Burial Grounds Preservation Fund, and shall expend moneys in the fund as is reasonably necessary to effectuate the purposes of this act.

b. The moneys to be deposited in the Family and Private Burial Grounds Preservation Fund shall include:

(1) Any penalty moneys collected by the department pursuant to sections 10 and 11 of this act, P.L. , c. (C. and C. , respectively) (pending before the Legislature as this bill);

(2) Any moneys appropriated and allocated to the department by the Legislature for purposes consistent with this act;

(3) Any gifts, legacies, bequests, or endowments received by the department for, or in aid of, purposes consistent with this act;

(4) Any grant or loan moneys awarded to the department by a federal, State, or other public or private source for purposes consistent with this act;

(5) Any interest accrued on moneys contained in the fund; and

(6) Any dividends or returns received from investment of the moneys in the fund.

15.Section 23 of P.L.2003, c.261 (C.45:27-23) is amended to read as follows:

23. a. Except as otherwise provided in this section, or pursuant to court order, human remains shall not be removed from an interment space unless:

(1) the surviving spouse, adult children and the owner of the interment space authorize removal in writing;

(2) removal is authorized by a State disinterment permit issued by the local board of health; and

(3) the cemetery finds that removal is feasible.

b. No disinterment permit is required:

(1) for the temporary removal or repositioning of vaulted human remains to allow for the deepening of an interment space within the same lot;

(2) for the transfer of temporarily stored remains from the place of temporary storage to the place of final interment within the same cemetery in accordance with applicable law;

(3) for the removal of cremated human remains. However, prior consent shall be obtained from the interment space owner and the person having the right to control the removal of the decedent's remains.

c. Human remains buried on property that is not part of a cemetery may be removed by the owner of the property provided that removal is in compliance with applicable law and the remains are then properly re-buried in a cemetery.

d. A person who signs an authorization for the disinterment of human remains warrants the truth of the facts stated and the authority to order the disinterment. The person shall be liable for damages caused by a false statement or breach of warranty. A cemetery or funeral director shall not be liable for disinterment in accordance with the authorization unless it had reasonable notice that the representations were untrue or that the person lacked the right to control the disinterment. An action against a cemetery company relating to the disinterment of human remains shall not be brought more than one year from the date of disinterment.

e. This section shall not apply to the removal of human remains from an interment space that is located in a "family or private burial ground" as defined by section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), which removal shall, instead, comply with the provisions of the "Family and Private Burial Grounds Preservation Act," P.L. , c. (C. ) (pending before the Legislature as this bill).

(cf: P.L.2003, c.261, s.23)

16.Section 25 of P.L.2003, c.261 (C.45:27-25) is amended to read as follows:

25. a. A cemetery shall not be established or enlarged in any municipality without first obtaining the consent of the municipality by resolution.

b. No more than five cemeteries may be established in any one municipality, and not more than 3% of the area of any municipality shall be devoted to cemetery purposes . This subsection shall not apply to a "family or private burial ground" as defined by section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. A cemetery shall not be established or expanded to exceed 250 acres at any one location.

d. The governing body of a municipality, by resolution, may waive the limitations of subsection b. or c. of this section if it finds that there is a public need for additional cemetery lands and that it is in the public interest to waive them.

e. A cemetery company shall not dedicate additional land to cemetery purposes without board approval.

(cf: P.L.2003, c.261, s.25)

17.This act shall take effect immediately.

STATEMENT

This bill, which would be known as the "Family and Private Burial Grounds Preservation Act," would provide the legal protection necessary to prevent the disturbance and destruction of burial grounds in the State that have been established and used exclusively by private persons or families. For ease of practical application, the bill would define "family or private burial ground" (burial ground) to mean, in particular, a cemetery that (1) contains the remains of two or more persons; (2) is clearly identified through the intentional placement of stone tablets, markers, or tombstones, fencing, memorial stones or statutes, or through some other obvious means; (3) is not owned or operated by a government entity, by a religious corporation or organization, or by a cemetery company that has received authorization to operate pursuant to the provisions of the "New Jersey Cemetery Act, 2003;" and (4) is not located on land that has ever been used for the purpose of public burials.

The bill would authorize the Department of Environmental Protection (DEP) to administer and enforce its provisions, and it would grant the DEP general supervisory and regulatory authority, and jurisdiction, over all family and private burial grounds in the State.

The bill would make it unlawful, in particular, for any person to intentionally, willfully, or knowingly: (1) disturb, destroy, mutilate, deface, or injure a family or private burial ground or any human skeletal remains or burial objects contained therein; (2) tamper with an interment space, or expose through excavation, disinter, or remove any human skeletal remains or burial objects contained in a burial ground's interment spaces; (3) destroy, mutilate, deface, injure, knock down, or remove any ornamentation, or any tombstone, monument, stone marker, statue, or other memorial structure in a burial ground; (4) destroy, mutilate, deface, injure, knock down, or remove any fence, railing, or other structure that has been erected along the boundary of a burial ground; or (5) allow any person, entity, or group access, or facilitate such access, to a burial ground for any of the above-listed purposes.

In addition, the bill would require any new construction, excavation, or building in the area of a burial ground to comply with local land use regulations concerning burial sites, burial grounds, or cemeteries. The bill would specify, moreover, that in the absence of applicable local regulations, no new construction, excavation, or building may be conducted within 15 feet of the boundaries of a burial ground, except when such activity is approved, in writing, by a relative of each person interred in the burial ground, or is determined to be necessary for: (1) the protection of public health; (2) the construction of capital improvements or the provision of essential public services; (3) the construction of a State highway; or (4) the construction, in accordance with specified limitations, of a private sewer line connection to a public sewer system.

Pursuant to the bill's provisions, a person who owns property on which a burial ground is located would be required to report the existence of the burial ground to the DEP within 120 days after the bill's effective date, and also to record the existence of the burial ground in the deed to the property. The bill would, however, allow a property owner to apply to the municipality to take possession of any burial ground on the property, and to convey to the municipality, the property owner's interest therein. In addition, if the DEP or the local board of health concludes that a burial ground has been neglected by a property owner to the point that it has become a public hazard or nuisance, the department or the local board of health, as the case may be, would be authorized to apply to the municipality to take possession of the burial ground pursuant to the "Eminent Domain Act of 1971."

A municipality that has acquired a burial ground would be authorized to convert the burial ground to serve another purpose only if such conversion is approved, in writing, by a living relative of each person interred therein, or is determined to be necessary for one of the reasons listed above, for which construction, excavation, or building activities may be authorized.

The bill would allow the department to authorize the total dismantling of a burial ground and the permanent disinterment and reinterment in another cemetery of the human skeletal remains and burial objects contained therein, only if such action: (1) is deemed by the department to be necessary and appropriate for the purposes of facilitating an approved municipal conversion of a burial ground, or an approved construction, excavation, or building activity taking place on or near a burial ground, or (2) is otherwise approved, in writing, by a living relative of each person interred in the burial ground. Any person who gives such written relative approval - whether for the municipal conversion of a burial ground, for construction, excavation, or building activities taking place on or near a burial ground, or for the permanent disinterment of human skeletal remains in a burial ground - would be liable, in addition to any other applicable penalties, for damages caused by a false statement.

The bill would require any human skeletal remains or burial objects that are either lawfully or unlawfully recovered from a burial ground to be reinterred, as soon as is reasonably possible, in the same burial ground from which they were taken, except in the case that permanent disinterment has been authorized by the department. In such a case, the bill would require any disinterred burial materials to be reinterred in a cemetery that is owned or operated by a cemetery company, religious corporation or organization, or government entity.

Failure to comply with any of the bill's provisions would subject a violator to both criminal and civil liability. In particular, a person who violates the bill's provisions would be guilty of:

(1) a criminal offense, ranging from a crime of the fourth degree to a crime of the second degree, as provided by N.J.S.2C:17-3 (criminal mischief; tampering with grave site), N.J.S.2C:20-2 (general theft; theft of human remains), section 1 of P.L.2007, c.321 (C.2C:20-2.3) (theft of headstones or flags from grave sites), section 1 of P.L.2002, c.127 (C.2C:22-1) (disturbance or desecration of human remains), or section 2 of P.L.1981, c.282 (C.2C:33-11) (exposure to threat of violence through defacement of private cemetery property), as applicable; or

(2) a disorderly persons offense, subject to a fine of up to $25,000, if none of the penalty provisions identified in paragraph (1) is applicable to the violative conduct; or

(3) a crime of the fourth degree, subject to imprisonment and a fine of no less than $25,000 nor more than $100,000, if: (a) none of the penalty provisions identified in paragraph (1) is applicable to the violative conduct, and (b) the offender has previously been convicted of violating the bill's provisions. A court would be authorized to suspend a sentence of imprisonment imposed for this offense only if the court determines that imprisonment would result in manifest injustice.

A person who violates the provisions of section 4 or 5 of this act with the specific intent to attain an economic benefit therefrom, would additionally be guilty of a crime of the fourth degree, and would be subject to a sentence of imprisonment of not less than one year, nor more than five years, and a fine of not less than $100,000, nor more than $10,000,000, which fine must be consistent with, and based upon, the value of the economic benefit attained by the offender as a result of the violation. "Economic benefit" would be defined to include, among other things, the investment and resale value gained, and that may be realized, from an increase in the usability of land on which the burial ground is located, or from an improvement of the aesthetics thereof, which results from a violation of the act.

In addition to the criminal penalties provided by the bill and any other penalties provided by law, a person who desecrates or destroys a burial ground or the human remains or objects therein, would be subject, under the bill's provisions, to a civil penalty of up to $100,000 for a first offense, and up to $200,000 for a second or subsequent offense. The bill would authorize a court, moreover, to hold a person vicariously liable, in certain circumstances, for offensive conduct that is engaged in by the person's agent or authorized representative.

Finally, the bill would authorize any aggrieved relative of a person interred in a compromised burial ground to file a civil action for damages against the person responsible for causing the harm to the interment spaces or remains of the relative's relations. A prevailing relative in such a case would be entitled to the receipt of damages amounting to three times the value of all costs incurred by the relative to remedy the effects of violation. In addition, the prevailing relative would be entitled to damages for emotional distress and reimbursement for attorney's fees, court costs, or other out-of-pocket litigation expenses.

By providing for the imposition of significant civil and criminal penalties, the granting of civil damage awards, and the finding of vicarious liability, the bill endeavors to create a system of deterrence that will effectively protect family and private burial grounds against encroachment or destruction by corporate actors or big business interests who may receive a substantial net benefit from destruction thereof, and who, therefore, may not be dissuaded from violations of the act absent the existence of such substantial penalties.

With the exception of awards for civil damages, any civil or criminal penalties that are collected in accordance with the bill's provisions would be deposited in the "Family and Private Burial Grounds Preservation Fund," which would be established and maintained by the department pursuant to the bill's provisions. The bill would also require the deposit into the Fund of any additional moneys that are appropriated or allocated to, or otherwise received by, the department for the bill's purposes.