Town of Westerly, RI
Washington County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Council of the Town of Westerly as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 260.
[Adopted 8-13-1991 by Ch. No. 983 as §§ 8-81 through 8-88 of the 1991 Code (Ch. No. 1103)]

§ 137-1 Authority.

In order to comply with Title 23, Chapter 18, of the Rhode Island General Laws, the Town hereby adopts the following regulations governing the preservation of historic and archaeological burial sites in the Town.

§ 137-2 Purpose.

The Town Council finds that historic and archaeological gravesites possess archaeological and scientific value, often are of great artistic, cultural and religious significance, and represent for all cultures a respect for the sanctity of human life. It is, therefore, the policy of the Town that marked or unmarked historic cemeteries are to be preserved and are not to be altered or removed except as provided for in this article.

§ 137-3 Definitions.

As used in this article, the following terms shall have the meanings indicated:
APPLICANT
The owner of the land on which an archaeological burial site or family cemetery is located or which a permit must be sought for alteration or removal.
ARCHAEOLOGICAL BURIAL SITE
An area of land which has been used for the interment of human remains in the prehistoric or distant past. Archaeological burial sites may include American Indian or other ethnic groupings.
FAMILY CEMETERY
An historic cemetery which is not associated with a specific religious organization but which is the site of burial for persons related by blood, marriage or household.
GRAVE
Any site where human remains have been purposefully interred. The term shall also include grave markers, funerary objects, and associated cultural remains and artifacts. A grave shall include mausoleums, crypts or other structures designed to house human remains.
HISTORIC CEMETERY
Any tract of land which has been for more than 100 years used as a burial place, whether or not marked with an historic marker or gravestone, including but not limited to ancient burial places known or suspected to contain the remains of one or more American Indians. For the purposes of this article “historic cemetery” shall also include an area 25 feet in width around the perimeter of the cemetery.
HUMAN REMAINS
Any parts or remains of deceased persons, including skeletal remains or cremated ashes.
LEAST DISRUPTIVE
A means of construction, excavation, removal, or any other activity which, in the opinion of the State Preservation Commission, has the least overall destructive impact on the grave, human remains, or cemetery.
OWNER
The owner of a parcel of land.
RELIGIOUS CEMETERY
Any cemetery owned or maintained by a religious organization.
RELIGIOUS ORGANIZATION
The organization representing the adherents of any religious society.
SITE ALTERATION PLAN
A document showing in written text and by drawing the proposed alteration of an historic cemetery, archaeological burial site or family cemetery, including detailed specifications for alteration, removal, and reinterment of human remains.
TOWN
The Town of Westerly, Rhode Island, its agents or officers.

§ 137-4 Prohibited activities; issuance of permit for alterations.

A. 
It shall be unlawful for any person to disturb, disrupt, excavate, deposit fill in or on, remove or destroy grave markers, burial objects or buried human remains, or conduct any other activities which would damage or diminish the integrity of any historic cemetery, archaeological burial site or family without first obtaining thereafter a permit to alter or remove from the Town Council.
B. 
The Town Council may issue a permit to allow the alteration or removal of historic cemeteries, archaeological cemeteries or family cemeteries only after concluding, based on evidence submitted to the Council at a public hearing, that all alternatives to the proposed activity have been examined and that no prudent and feasible alternative to the proposed activity exists or that such alteration only serves the interests, health, welfare and safety of the public and is not for commercial expediency.
C. 
In order for the Town Council to clearly assess the proposed project, the following information shall be submitted unless otherwise required by the Town Council:
(1) 
Detailed site plans drawn to scale by a licensed professional registered land surveyor or professional engineer as applicable, at a minimum scale of one inch equals 50 feet, showing the boundaries of the property in question, topographical contour intervals of no more than one foot, a surveyed boundary of the cemetery and a setback area of no less than 25 feet, and a proposed plan of all improvements proposed on the site which would necessitate disturbance of the cemetery.
(2) 
If known, a written description of the cemetery, its age and condition, historical importance, whether the cemetery is religious, family, organization, publicly owned or other kind of cemetery, a listing of names and vital dates of those interred as may be determined from grave markers on site, and a cemetery plan indicating position of graves and, to the extent possible, the identities of those interred.
(3) 
A detailed site alteration plan indicating the extent of disruption of the cemetery, methods of construction or removal of human remains, reburial plan, including, in text and drawing, the relocation of graves.
(4) 
In the event of a family cemetery, a genealogical study to identify whether descendants of the families of the interred still reside in the state.
(5) 
In the event of a religious cemetery, a listing of the religious organization that owns or maintains the cemetery.
(6) 
Any further information and study the Town Council deems necessary to complete its consideration of the request to alter a cemetery in compliance with RIGL 23-18-1 et seq.
(7) 
Previously unknown or archaeological cemeteries and burial sites. Once a discovery of a previously unknown burial site is made or suspected, the owner or contractor shall immediately notify the Building Inspector, who in turn shall contact the State Medical Examiner and Rhode Island Historic Preservation Commission (RIHPC), pursuant to RIGL 23-18-1 et seq.
D. 
The Town shall require the cessation of construction activities pending preliminary verification by the State Medical Examiner or RIHPC. If the site is verified as a human burial site, work within 25 feet of the site shall be halted unless or until a permit to alter or remove is issued by the Town pursuant to these regulations.
E. 
The owner shall be required at his/her expense to conduct an archaeological investigation of the area to establish the boundaries of the cemetery/burial sites via the least disruptive means feasible. The least disruptive means shall be determined in consultation with the RIHPC. A survey report shall be produced incorporating the findings of the investigation in text and graphic form.
F. 
The applicant shall then submit the report and a detailed engineering plan as in Subsection C(1) above of the proposed construction project, and all other activities on the property in question which, in the opinion of the applicant, necessitates disruption of the cemetery/burial site.
G. 
The applicant shall also submit a detailed site alteration plan proposal of the extent and method of removal of human remains and a reburial plan in text and drawing of the new gravesite.

§ 137-5 Hearing.

A. 
Public notice. Upon receipt of the required documents, the Town Council shall set the date of hearing and cause the matter to be publicly advertised at the applicant’s expense in a local newspaper for a period of not less than two weeks prior to the hearing. The RIHPC shall simultaneously be notified and an advisory opinion shall be requested of pertinent Town staff.
B. 
Notice to interested parties.
(1) 
In the event of archaeological burials and historic Native American graves, the Town shall cause the Tribal Council of the pertinent tribe to be notified by regular mail of the subject, date and time.
(2) 
In the event an application involves the cemetery of an extant religious society, such society shall be so notified by regular mail.
(3) 
In the event the application involves a family cemetery, the interred of which have living lineal descendants, the applicant at his/her expense shall make all reasonable efforts to notify lineal descendants, which efforts may include sending notice to descendants via first-class mail, or publication of the notice in state-wide newspapers (circulation in Rhode Island) and New London County, Connecticut, at least once per week for two successive weeks prior to the hearing.
C. 
Burden of proof. At the hearing, the applicant shall prove to the satisfaction of the Town Council that:
(1) 
The applicant has examined all alternatives and conclusively demonstrated that no prudent and feasible alternative to the proposed alteration is possible; or
(2) 
That the proposed alteration serves only the interests of health, welfare, and safety of the public.

§ 137-6 Final action.

The Town Council shall conduct a public hearing on the proposed project, and shall render a decision approving, denying, or approving with reasonable conditions, the proposed site alteration plan, and may set other requirements of the applicant deemed sufficient to carry out the purpose of RIGL 23-18-1 et seq.

§ 137-7 Legal status.

Nothing in this article shall be construed to prohibit the routine maintenance and repair of historical gravesites or the use of historic cemeteries as places of interment, nor shall it be construed to preclude the boards or commissions or agents of the Town from otherwise acting within their authority to regulate and protect historical and archaeological cemeteries.

§ 137-8 Appeal.

Any person aggrieved by the decision of the Town Council shall have a right to appeal the decision to Superior Court pursuant to RIGL 23-18-11.1.