State Law Does Not Preempt Zoning Regulating Location of Family Cemetery

A State statute in Arkansas authorizing the state department of health to grant or deny permits for cemeteries did not conflict with a local zoning ordinance requiring a conditional use permit to locate a cemetery in an agricultural zone. Hence, the state statute did not preempt the city ordinance. 

In July 2003, Herman Brock applied for a conditional use permit to establish a family cemetery on his property located in an agricultural zoning district. The planning commission and the city council rejected his request in the fall of 2003. Brock did not appeal from this decision. Meanwhile, Brock submitted a request to the mayor to register a family cemetery. The state department of health issued a letter stating that no public health problem was expected to result from the cemetery and recommended approval of his request. Nevertheless, the mayor refused to grant the request. Brock sued the mayor, seeking an injunction directing him to grant the permit. The trial court granted the mayor’s motion for summary judgment in 2008.

In his appeal, Brock argued there was an irreconcilable conflict between the state law governing health department permits for cemeteries and the various laws authorizing cities to adopt zoning ordinances regulating burial of the dead. Thus, he contended, the doctrine of repeal by implication applied.  The court noted the general rule that repeal by implication is not favored and is not allowed except where the provisions are in such conflict that both cannot stand. The statutory provisions giving municipalities the power to carry out land-use planning, establish planning commissions, adopt zoning ordinances and enforce land-use regulations have a very different purpose from the statute providing a mechanism for a local government to ensure compliance with public health considerations before approving construction or expansion of a cemetery, the court said.  The land-use statutes are intended to give municipalities the authority to regulate certain activities, to promote the safety, prosperity and general welfare of the citizenry. The health department’s review is limited to questions relating to the proximity of the proposed cemetery to human habitation, the nature of the soil and the danger of polluting water supplies. It is not intended to provide more power or authority to municipalities.  There is no irreconcilable conflict between the statutes if they are interpreted, as the trial court did, as making the health department statute subject to properly adopted land-use ordinances, the court said.

Under well-settled rules of statutory interpretation, that result is required. Therefore, the enactment of the health department statute did not repeal the land-use provisions by implication.  Brock also argued that because the health department recommended approval of his permit application, the mayor did not have any discretion to deny the permit. The court said it did not have to reach that argument, because a ruling on it would not affect the outcome of the appeal. The health department’s authority is subject to land-use ordinances governing the location of burial sites. The city council refused to issue Brock a conditional use permit for a cemetery, and he failed to appeal that decision. So, even if the mayor had no discretion to refuse a permit once the health department gave its approval, the permit would still be subject to the city’s zoning ordinances. The city council’s refusal to issue a conditional use permit precluded construction of a cemetery on his property.

Brock v. Townsell, 2009 WL 1771137 (Ark. 4/23/2009).

The opinion can be accessed at: http://courts.arkansas.gov/court_opinions/sc/2009a/20090423/published/08-807.pdf

Special thanks to James Lawlor, Esq. of the Land Use Legal Report for this abstract which appears in vol. 3 no. 10.  For more information about subscribing to the LULR, contact James at landlaw@verizon.net.