COMMITTEE SUBSTITUTE

FOR

H. B. 2542

(By Delegate Brown)

(Originating in the Committee on Finance)

[February 15, 2011]

A BILL 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 a person who has the written permission of a family member, close friend 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 objections to installation; requiring written reasons for denial of access to install; 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) (1) 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 (b) of this section after providing the owner of the privately owned land with reasonable notice as defined in section two of this article.

    (2) 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 for the purpose of installing a monument or grave marker as described in subsection (b) of this section shall have the right to reasonable ingress or egress for that purpose after providing the owner of the privately owned land with reasonable notice as defined in section two of this article.

    (b) 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 monuments or grave markers;

    (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; or

    (C) A person who has the written permission of a family member, close friend 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. If the property owner denies access to the cemetery or grave site because the owner objects to the installation of the monument or grave marker that has been described pursuant to subdivision (4) of this section, the property owner shall provide the reasons for the denial in writing to the authorized person within five days of the receipt of the initial notice.

    (4) “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. For authorized persons intending to visit the cemetery or grave site for the purpose of installing a monument or grave marker, the notice shall include a description of the monument or grave marker to be installed.

§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 unreasonable 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.