July 27, 2005
VIA FACSIMILE

Honorable Brian Brennan, Mayor
City Council
City of Ventura
501 Poli St.
Ventura, CA 93001

Re: Cemetery Memorial Park

Dear Mayor Brennan and Honorable Councilmembers:

I am the California State Coordinator for Saving Graves, an information and referral Internet website for the preservation and protection of historic cemeteries. As such, I am acutely aware of the problems that plague our many thousands of pre-and post-gold rush cemeteries. I am also aware that, of those who are responsible for damage wrought on these hallowed places, the names and capacities of public officials are ranked at the top of the list.

I have been following the matter of your "Cemetery Memorial Park" since late 2002. I have been interviewed by reporters from the local area papers and the Los Angeles Times regarding the legal status of the cemetery. Since first being contacted about this issue, I have requested from various inquirers that they obtain for me the official City documents that marked the City's initial conversion of the cemetery to a park. None of these folks have been able to provide me with any valid documentation to evidence that the City of Ventura acted with proper statutory authority when it determined to convert these cemeteries to the present “Cemetery Memorial Park.”

It is my opinion that the present Council has been led to believe that what the City did with these cemeteries beginning in the early 1960s was done legally and that, therefore, your present body bears no responsibility to correct the wrongs committed by your predecessors. Nothing could be farther from the truth.

I recently reviewed the Ventura County 2004-2005 Grand Jury Report findings and conclusions that resulted from the its investigation of a citizen complaint. From the information provided to the Grand Jury by the City, I am rather amazed that the present City Attorney did not detect that the City obviously failed to comply with State law when it moved to convert the cemeteries to a public park.

For instance, it appears that the City claimed title to the City’s public cemetery through operation of law. Public cemeteries to which the public acquired legal title through operation of the former Political Code section 3105 (current Health and Safety Code section 8126) have always been prohibited from being used for any other purpose than as a public cemetery. There is nothing in the language of this law that would ever be legally interpreted to imply a public cemetery could also be used as a public park, memorial or otherwise. (See Attachment A for the text of these laws.)

Even if the City had not acquired the public cemetery through operation of the former Political Code section 3105, but rather acquired it through purchase or otherwise, former Political Code section 3108, in effect at the same time, also contained a prohibition against the use of city public cemeteries for other than burial purposes. Section 3108 is now present Health and Safety Code section 8127 enacted in 1939. (See Attachment A for the text of these laws.)

Furthermore, lands used as a cemetery is dedicated solely to cemetery purposesas long as there are human remains left buried in the ground.

At one point it appears that the City did consider the removal and relocation of remains under authority of Health and Safety Code section 7600. This method of converting the cemetery to a park likely proved to be cost prohibitive, so the City did not act to do so. Because the City did not choose to avail itself of section 7600, the land that comprises the old City public cemetery may legally only be used as a public cemetery. Because it is a public cemetery there is a strict prohibition against its use for any other purpose, including as a park, memorial or otherwise.

Similarly, when the City acquired the lands of St. Mary’s Cemetery, it agreed to keep the land for the purpose intended – that of a cemetery. Had the City arranged to remove and relocate the graves from St. Mary’s, it would have violated the conditions of the deed with the Catholic Archdiocese. Instead, it seems, the City fathers decided to concoct this combined cemetery and park scheme so that it could both abide by the agreed upon terms imposed in the Catholic deed and get its park at the same time.

From the Grand Jury Report, I also note that there seems to be a question as to whether the City holds record title to portions of the Cemetery Memorial Park. More specifically, the Grand Jury was concerned the City has no title to the Protestant or Presbyterian Cemetery and the Hebrew Cemetery. The Grand Jury report identified that the City maintains it acquired ownership of these cemeteries purportedly as a result of the fact that: 1) the City Cemetery was shown on maps dated 1887 and 1889; 2) two City ordinances (one for regulating and protecting the PUBLIC cemetery and the other creating a cemetery fund); and 3) section 8126 of the Health and Safety Code.

Section 8126 (and the former Political Code section 3105) applies ONLY to “public cemeteries or graveyards” that were or are in use by the general public. It did NOT apply to cemeteries owned by private individuals, religious organizations or fraternal or benevolent societies. Therefore, the City’s citation that it acquired title to these cemeteries through this law, is unsupported in law.

The fact that the “City Cemetery” was shown on an 1887 and 1889 official city map has no bearing whatever on the title to these two religiously own properties. The law does not provide that the title to privately owned religious cemeteries will vest in the public if they are not shown as separate parcels from the larger City Cemetery on an official city map. Therefore, the City’s reliance on the existence of what is shown on these maps is not relevant to establishing any legal title to these two cemeteries.

Lastly, the City’s contention that the two ordinances past by it somehow inured title in the public to these two cemeteries is wholly ridiculous. The City enacted Ordinance No. 41 in 1889 for the purpose of regulating and protecting the City Cemetery. Ordinance No. 86 passed by the City in 1896 merely established a cemetery fund for its use in the administration of the City Cemetery. There is no basis in law to all the City to claim that the passage of these two ordinances in some way vested title to the Protestant and Hebrew cemeteries in the public.

The Grand Jury report relates that both the First Presbyterian Church and the Hebrew Cemetery Association acquired their cemeteries in 1870 and 1876, respectively, through Grant deeds. Therefore, it would be impossible for the City to claim an ownership interest in either of them through operation of section 8126 or the predecessor section 3105 because the cemeteries were religiously owned and operated cemeteries.

Former Political Code section 3105, predecessor to the present section 8126, provided that the “…title to lands used as a public cemetery or graveyard…” would vest in the public through operation of this law, only if the public’s use of the public cemetery met certain prescriptive conditions. Among those conditions was that a public cemetery that was “situate near to any city, town or village” had to be used by the “inhabitants of the city, town or village” (read PUBLIC), “continuously, without interruption” for five or more years after January 1, 1873.

The language of section 3105 was clear that it was only intended to effect a title in the public as a result of the public’s use of a public cemetery or graveyard. This law had absolutely no effect on the title to religious, fraternal association or benevolent society cemeteries. This law was strictly written to provide the public with a title to the public cemeteries that had been used, and continued to be used, by the people of the various communities of the State. [For case law decisions on the effect of these laws, see WANA THE BEAR v. COMMUNITY CONSTRUCTION, INC. (1982) and STOCKTON v. WEBER (1893). See also Attorney General Opinion #98-503, regarding Gold Rush cemeteries, dated August 1998.]

California law prohibits the use of cemetery land that has been, either formally or impliedly, dedicated to cemetery purposes for any other purpose than as a cemetery. Only if all the human remains have been removed from the land and the dedication formally and lawfully removed, may the land be used for any other purpose. The City’s use of the various cemeteries mentioned in the Grand Jury Report, including the City Cemetery, for any purpose than as cemeteries was simply not authorized by law until all the remains have been removed from the land. The City’s use of them today as Cemetery Memorial Park remains an unlawful use as prohibited by law.

The little information that I've located describing how the City managed to convert the cemeteries to a “memorial park,” points to the possible use of Health and Safety Code sections 8825 through 8829 (Pioneer Memorial Park). I have found no documentary evidence, however, that the City actually performed the statutory requirements of this law. Such non-performance constitutes non-compliance with the law. (See Attachment B for the text of the above codes.)

Additionally, the Pioneer Memorial Park statutes apply ONLY to cemeteries abandoned by others and NOT to city owned public cemeteries. When the City acquired the title to the St. Mary's Catholic Cemetery prior to converting the cemetery to a park, that cemetery was not thereafter considered abandoned as defined or required by sections 8825-8829. This is because the City had assumed ownership of it and, as such, it became a publicly owned cemetery. Therefore, the conversion of St. Mary’s would also not have been authorized by law because it was a public cemetery owned by the City.

Finally, if the City had complied with the legal requirements of sections 8825-8829, it would have completed the legal process by filing to quiet the title to the Protestant/Presbyterian Cemetery and Jewish Cemetery. When the Grand Jury examined this matter it evidently was not provided sufficient evidence of the City’s alleged title to these cemeteries or the report would not have questioned the validity of the City's ownership claim. A Quiet Title Decree would have given the City title to the cemeteries so the City could lawfully have fulfilled the requirements of sections 8825-8829.

As an aside, sections 8825 through 8829 did NOT intend that all of the gravestones, ornamentation and monuments should be removed from the cemeteries that were established as legal Pioneer Memorial Parks. It only authorized the removal of any tombstone, coping piece or monument that posed a threat to the public health, safety and welfare. Sections 8825-8829 of the Health and Safety Code was NOT intended to allow cities and counties to turn cemeteries into parks, but to aid in the preservation of old cemeteries that had deteriorated due to inattention by the once legal owners.

The City’s method of “acquiring” the Protestant/Presbyterian Cemetery and Jewish Cemetery each constitutes an unlawful taking of property in violation of both the Federal and State Constitutions. By unlawfully taking these religiously owned cemeteries, the City also deprived these entities of their right to the free religious practice.

Irrespective of the fact that either of these cemeteries may have appeared to be "left behind" by their respective owners, each organization held a validly obtained deed to their lands. Those interred within these cemeteries and their descendant families had a right to believe that these hallowed grounds would not be allowed to be unduly molested, desecrated or obliterated. In their absentee ownership, the City should have taken all due action or measures to ensure their protection. Instead, the City became the perpetrator of the ultimate crime. In short, the City stole their cemeteries.

Now the City is faced with a new development plan for the “dual-use” cemetery and park it unlawfully created some forty years ago. It cannot continue to ignore that there is no legal basis for the City to have converted the public cemetery to a park or to have unlawfully taken the Protestant and Hebrew cemeteries.

The question now is, do you wish to continue the masquerade that was set in motion so long ago when the City acted without even a smidgen of statutory authority? Or will you choose to uphold and protect the laws of this State and take all appropriate corrective measures to halt this illegal use of the cemeteries?

If I am correct in my analysis of this situation, the City had no statutory authority to convert any of these cemeteries to a park, dual-use or otherwise, in the 1960s. Because it failed to use what actual authority it could have utilized over certain portions of the property, the City is in violation of, and out of compliance with, the California Health and Safety Code pertaining to public cemeteries.

If I am incorrect as to the method the City used to convert the cemeteries to the present park, please forward to me a copy of the City Council’s Resolution passed in the 1960s, that declared the abandonment of the cemeteries pursuant to sections 8825-8829 of the Health and Safety Code. If the City did pass such a Resolution, please advise if it passed individual resolutions for each of the four separate cemeteries it ultimately declared abandoned, or did one Resolution include them all?

Please send me, also, a copy of the published notice that appeared in the local area newspaper for the required four weeks notice pursuant to Government Code section 6064, and a copy of the City Council minutes from the 1960s meeting of the public hearing that was held as part of the City’s Declaration of Abandonment pursuant to Health and Safety Code section 8825-8829.

California Saving Graves supports the restoration of these cemeteries to their original and only lawful use. We urge you to ensure the City ceases to violate the law and that its actions reflect its intent to comply with all applicable laws pertaining to them. Most importantly, please ensure that the unlawful use of them as a public park be immediately ceased.

Respectfully,

SUE SILVER, State Coordinator
California Saving Graves
31955 Rocking Horse Rd.
Escondido, CA 92026
(760) 723-3609

Professional Affliations:

Past President, El Dorado County Pioneer Cemeteries Commission
Trustee, Chung Wah Chinese Cemetery, Folsom, CA
Advisor, Sacramento County Cemetery Advisory Commission
Advisor, Senate Local Government Committee, Public Cemetery District
Law Reform (2002-2003)
Advisor, Commission for the Preservation of Pioneer Jewish Cemeteries and
Landmarks of the West, Berkeley, CA
Sexton (1997-2002), El Dorado Cemetery (est. 1849)
Past Advisor, Amador County Cemetery Board

Attachments: A – Pol. C. Sec 3105 and H&SC Sec. 8126
                       B – H&SC Sec. 8825-8829



ATTACHMENT A

Former Political Code Section 3105 (Stats. 1872)

§ 3105. Title to cemetery grounds. The title to lands used as a public cemetery or graveyard, situated in or near to any city, town, or village, and used by the inhabitants thereof continuously, without interruption, as a burial ground for five years, is vested in the inhabitants of such city, town, or village, and the lands must not be used for any other purpose than a public cemetery. [Emphasis added.]

Health and Safety Code Section 8126 (Stats. 1939)

(Prior Law: Former Pol C § 3105.)

§ 8126. Title by public user

The title to lands situated in or near any city and used by the inhabitants without interruption as a cemetery for five years is vested in the inhabitants of the city and the lands shall not be used except as a public cemetery. [Emphasis added.]

Former Political Code Section 3108 (Stats. 1872)

§ 3108. Inhabitants of city, town, or village to own cemetery. The inhabitants of any city, town, village or neighborhood may be subscription or otherwise purchase or receive by gift or donation, lands not exceeding five acres to be used as a cemetery, the title thereof to be vested in such inhabitants, and when once dedicated to use for burial purposes must thereafter be used for no other purpose. [Emphasis added.]

Health and Safety Code Section 8127 (Stats. 1939)

(Prior Law: Former Pol C § 3108.)

§ 8127. City inhabitants’ acquisition and use of lands

The inhabitants of any city may by subscription or otherwise purchase or receive by gift or donation, lands not exceeding five acres to be used as a cemetery, the title to be vested in the inhabitants, which lands when oncededicated to use for burial purposes, shall not thereafter be used for any other purpose. [ Emphasis added.]



ATTACHMENT B

Health and Safety Code Chapter 7 - Abandonment

§ 8825.Declaration of Abandonment

A city or county having a nonendowment care cemetery within its boundaries which threatens or endangers the health, safety, comfort or welfare of the public may, by resolution of its governing board, if not more than 10 human dead bodies have been interred therein for a period of five years immediately preceding the date of the resolution, declare the abandonment of the cemetery as a place of future interment and provide for the removal of such copings, improvements, and embellishments which the governing board finds to be a threat or danger to the health, safety, comfort, or welfare of the public. [Added Stats. 1957 ch 862 § 1; amended Stats 1959 ch 1241 § 1.] [Emphasis added.]

§ 8826.Declaration in resolution: Publication of Notice

The resolution for abandonment adopted under the provisions of this chapter shall specify and declare that at any time after the expiration of 60 days after the first publication of notice of declaration of intended abandonment, the city or county in which the cemetery is located will remove such copings, improvements, and embellishments which are found to be a threat or danger to the health, safety, comfort, or welfare of the public. Notice shall be given to all persons interested therein by publication in a newspaper of general circulation published in the county or city. Publication shall be pursuant to Section 6064 of the Government Code. [Added Stats 1957 ch 862 § 1; Amended Stats 1959 ch 1241 § 2.] [Emphasis added.]

§ 8827.Removal of copings, improvements, etc.

After the publication mentioned in Section 8826 of this code and after the expiration of the 60 days specified in the notice, the city or county shall remove such copings, improvements, and embellishments which have been found to be a threat or danger to the health, safety, comfort, or welfare of the public. [Added Stats 1957 ch 862 § 1; Amended Stats 1959 ch 1241 § 3.] [Emphasis added.]

§ 8828. Dedication as pioneer memorial park, and erection of memorial; Quiet title action

After the work which the governing body, in its discretion, finds necessary and practicable has been completed, the governing body shall immediately thereafter, by resolution, which shall contain a legal description of the cemetery, dedicate such abandoned cemetery as a pioneer memorial park and may cause to be erected a suitable central memorial honoring those who have been interred in the cemetery.

Upon recordation of the resolution with the county recorder of the county in which the cemetery is located, fee title to the cemetery shall vest in the city* or county as the case may be. The governing body may bring an action to quiet title to the cemetery, and in the absence of fraud the resolution and the fact of recordation shall be conclusive evidence of fee title to the cemetery.

Any county or city acquiring fee title to a cemetery under this section shall only use the property for the purpose of establishing and maintaining a pioneer memorial park. [Added Stats 1957 ch 862 § 1; Amended Stats 1959 ch 1241 § 4; Stats 1970 ch 543 § 1.] [Emphasis added.]

* The very fact this language is used evidences that the purpose of the law was NOT intended for use on county or city PUBLIC cemeteries, since the title to those cemeteries is already vested in the county or city. The use of the public cemeteries of cities and counties is restricted to use only as public cemeteries in accordance with Health and Safety Codesections 8126 and 8127.

§ 8829. Maintenance of park

   Thereafter the city or county shall maintain said pioneer memorial park so that it will not endanger the health, safety, comfort, or welfare of the public. [Added Stats 1957 ch 862 § 1.]


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