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ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2542
(By Delegate Brown)
[Passed March 12, 2011; in effect ninety days from passage.]
AN ACT to
amend and reenact §37-13A-1, §37-13A-2 and §37-13A-5 of
the Code of West Virginia, 1931, as amended, all relating to
access to cemeteries and grave sites located on privately
owned land generally; allowing access for the purposes of
installation of monuments or grave markers; allowing access to
an authorized person who has the written permission of a
family member or descendant of a deceased person to enter the
property solely for the purpose of installing monuments or
grave markers or preparing the cemetery plot for burying a
deceased person by those granted rights of burial to that
plot; requiring notice and description of monuments or grave
markers to be installed; permitting denial of installation by
property owner; and providing injunctive relief.
Be it enacted by the Legislature of West Virginia:
That §37-13A-1, §37-13A-2 and §37-13A-5 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read
as follows:
ARTICLE 13A. GRAVES LOCATED UPON PRIVATELY OWNED LANDS.
§37-13A-1. Access of certain persons to cemeteries and graves
located on private land.
(a) Any authorized person who wishes to visit a cemetery or
grave site located on privately owned land and for which no public
ingress or egress is available, shall have the right to reasonable
ingress or egress for the purposes described in subsection (c) of
this section after providing the owner of the privately owned land
with reasonable notice as defined in subsection (c) of this
section.
(b) An authorized person intending to visit the cemetery or
grave site for the purpose of installing a monument or grave marker
pursuant subdivision (b) of this section, shall give reasonable
notice to the property owner which is to include a description of
the monument or grave marker to be installed. As used in this
article, "reasonable notice" means written notice of the date and
time the authorized person intends to visit the cemetery or grave
site delivered to the property owner at least ten days prior to the
date of the intended visit.
(C) The right of access to cemeteries or grave sites provided
in subsection (a) of this section shall be during reasonable hours
and only for the purposes of:
(1) Visiting graves;
(2) Maintaining the grave site or cemetery, including the
installation of a monument or a grave marker: Provided, That a property owner may deny access to the cemetery or grave site
because the owner objects to the installation of the type or style
of the monument or grave marker that has been described in the
notice given pursuant to subsection (b), section one of this
article;
(3) Burying a deceased person in a cemetery plot by those
granted rights of burial to that plot; and
(4) Conducting genealogy research.
(c)(1) The access route to the cemetery or grave site may be
designated by the landowner if no traditional access route is
obviously visible by a view of the property. If no traditional
access route is obviously visible by a view of the property, the
landowner is not required to incur any expense in improving a
designated access route.
(2) Unless the property owner has caused a traditional access
route to the cemetery or grave site to be unusable or unavailable,
the property owner is not required to make any improvements to
their property to satisfy the requirement of providing reasonable
ingress and egress to a cemetery or burial site pursuant to this
section.
(d) A property owner who is required to permit authorized
persons reasonable ingress and egress for the purpose of visiting
a cemetery or grave site and who acts in good faith and in a
reasonable manner pursuant to this section is not liable for any
personal injury or property damage that occurs in connection with
the access to the cemetery or grave site.
(e) Nothing in this section shall be construed to limit or
modify the power or authority of a court in any action of law or
equity to order the disinterment and removal of the remains from a
cemetery and interment in a suitable location.
§37-13A-2. Definitions.
In this article:
(1) "Authorized person" means:
(A) A family member, close friend or descendant of a deceased
person;
(B) A cemetery plot owner;
(C) A person who has the written permission of a family member
or descendant of a deceased person to enter the property solely for
the purpose of installing monuments or grave markers or preparing
the cemetery plot for burying a deceased person by those granted
rights of burial to that plot; or
(D) A person engaged in genealogy research.
(2) "Governmental subdivision" means any county commission or
municipality.
(3) "Reasonable ingress and egress" or "reasonable access"
means access to the cemetery or grave site within ten days of the
receipt of written notice of the intent to visit the cemetery or
grave site. If the property owner cannot provide reasonable access
to the cemetery or grave site on the desired date, the property
owner shall provide reasonable alternative dates when the property
owner can provide access within five days of the receipt of the
initial notice.
§37-13A-5. Cause of action for injunctive relief.
(a) An authorized person denied reasonable access under the
provisions of this article, including the denial of permission to
use vehicular access or the denial of permission to access the
cemetery or grave site to install a monument or grave marker, 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 authorized person reasonable
ingress and egress to the cemetery or grave site for the purposes
set forth in this article. In granting relief, the court may set
the frequency of access, hours and duration of the access.
(b) The court or the judge thereof may issue a preliminary
injunction in any case pending a decision on the merits of any
application filed without requiring the filing of a bond or other
equivalent security.