If the annual election is not held on the day fixed for the annual meeting, the trustees may appoint another day, not more than 60 days after the annual meeting, and give public notice of time and place, and if an election is not so held 5 members may apply to the judge of a court of record in the county for an order granting power to hold an election, by publishing in the county a class 2 notice, under ch. 985
, of the application and the judge shall grant the application, and election shall then be held upon like notice. The terms of trustees expire on the date of the annual meeting in the year in which they are scheduled to expire, except that if no election is held at the annual meeting the terms expire on the date of the next election held under this paragraph.
Trustees; duties, report.
The trustees may fill vacancies for the unexpired term. One shall be chosen president, and they shall appoint a secretary and treasurer, and may require security of the treasurer. The trustees shall manage the affairs and property of the association and control and beautify the cemetery, and may establish regulations for those purposes. The trustees shall make and file written reports as required in s. 157.62 (1)
The association is dissolved by failure to hold an annual election for 3 successive years.
If an association that has been dissolved under par. (a)
, or any group that was never properly organized as a cemetery association, has cemetery grounds and human remains are buried in the cemetery grounds, 5 or more members, or persons interested as determined by order of the circuit judge under par. (c)
, may publish a class 3 notice, under ch. 985
, in the municipality in which the cemetery is located, of the time, place, and object of the meeting, assemble and reorganize by the election of trustees and divide them into classes as provided in sub. (1)
, the commencement of the terms to be computed from the next annual meeting date. The secretary shall enter the proceedings of the meeting on the records. The association is reorganized upon delivery of a copy of the proceedings to the cemetery board, except as provided in sub. (9)
. Upon reorganization, the title to the cemetery grounds, trust funds, and all other property of the association or group vests in the reorganized association, under the control of the trustees. The reorganized association may continue the name of the dissolved association or may adopt a new name.
If an association is dissolved under par. (a)
or any group has never been properly organized as cemetery association, and there are fewer than 5 members living or residing in the county where the cemetery is located, the circuit judge for the county shall upon the petition of any person interested, make an order determining who are persons interested in the cemetery. Any adult person who owns an interest in any cemetery lot in the cemetery, who is related to any person buried in the cemetery, or who is a descendant, brother, sister, nephew, niece or surviving spouse of a member of the dissolved association, is an interested person. The circuit judge may make the order upon evidence he or she deems sufficient, with or without hearing. The order need not contain the names of all persons interested, but shall contain the names of at least 5 such persons.
The cemetery board may prescribe and furnish forms for providing the information required under subs. (1)
Tax for maintenance.
When a cemetery association having control of a cemetery in a town, village or city of the third or fourth class has insufficient maintenance funds it may certify in writing to the clerk of such town, city or village the amount deemed necessary during the next ensuing year, the amount the association has therefor, and the deficiency, and the governing body of such town, city or village may levy and collect a tax therefor and pay the same to the association. If the cemetery is in more than one such municipality the deficiency shall be equitably distributed. If a cemetery located wholly within a town, village or city of the third or fourth class has also buried therein decedents from an adjoining municipality, the association having insufficient funds, the association may certify in writing to its municipal clerk and to the clerk of such other municipality, the amount deemed necessary for the ensuing year, the amount the association has therefor, the amount of the deficiency and the equitable amount that each municipality should contribute; whereupon the governing body of each such municipality may levy and collect a tax therefor and pay the same to the association.
Limited liability of trustees and officers. 157.062(8)(a)
Except as provided in pars. (b)
, a trustee or officer of a cemetery association organized under this section is not liable to the association, its members or creditors, or any person asserting rights on behalf of the association, its members or creditors, or any other person, for damages, settlements, fees, fines, penalties or other monetary liabilities arising from a breach of, or failure to perform, any duty resulting solely from his or her status as a trustee or officer, unless the person asserting liability proves that the breach or failure to perform constitutes any of the following:
A willful failure to deal fairly with the association or its members in connection with a matter in which the trustee or officer has a material conflict of interest.
A violation of criminal law, unless the trustee or officer had reasonable cause to believe his or her conduct was lawful or no reasonable cause to believe his or her conduct was unlawful.
A transaction from which the trustee or officer derived an improper personal profit.
Except as provided in par. (c)
, this subsection does not apply to any of the following:
A civil or criminal proceeding brought by or on behalf of any governmental unit, authority or agency.
A proceeding brought by any person for a violation of state or federal law where the proceeding is brought pursuant to an express private right of action created by state or federal statute.
The liability of a trustee or officer arising from a breach of, or failure to perform, any duty relating to the receipt, handling, investment or other use of care funds or any other funds made in trust.
Paragraph (b) 1.
does not apply to a proceeding brought by a governmental unit, authority or agency in its capacity as a private party or contractor.
This subsection does not apply to a cemetery association organized under this section if any part of the association's income is distributable among its members, trustees or officers.
Exemptions for certain cemeteries.
In lieu of delivering a certification, resolution, or copy of proceedings to the cemetery board under sub. (1)
, or (6) (b)
, a cemetery association that is not required to be licensed under s. 440.91 (1)
or registered under s. 440.91 (1m)
shall deliver the certification, resolution, or copy of proceedings to the office of the register of deeds of the county in which the cemetery is located.
Under sub. (4), cemetery association voters must be lot owners. Heirs of deceased lot owners are entitled to vote in cemetery association elections. 69 Atty. Gen. 132.
Cemetery associations and religious associations; holding property; change of ownership. 157.064(1)(1)
A cemetery or religious association authorized to hold lands for cemetery purposes may take and hold not more than 80 acres of land, to be used exclusively for burial of the dead, and personal property not exceeding $250,000 in value, to promote the objects of the association; and if the cemetery is near to or within a 3rd class city the association may so take and hold not more than 160 acres of land; and if near to or within a 1st or 2nd class city, not more than 240 acres.
A cemetery or religious association incorporated in this state and having a cemetery in or near a 1st or 2nd class city and any cemetery described under s. 157.065 (3m) (d)
may acquire by gift or purchase up to 30 acres of adjoining lands for cemetery purposes, and may pay for it wholly or partly from its cemetery lot sales.
When it is necessary to enlarge a cemetery owned by a cemetery or religious association, and adjoining lands cannot be acquired or can be acquired only at an exorbitant price, application may be made in writing to the circuit judge by 12 or more resident freeholders of the municipality in which the cemetery is located describing the land and setting forth the facts and the price asked, whereupon the judge shall appoint 3 resident freeholders of the county, but not of the municipality, to appraise the damages of each owner, not to exceed the price asked, but, except in cities or incorporated villages, no lands may be taken within 330 feet of a residence owned by the occupant without the occupant's written consent. The appraisers shall hear all parties upon 10 days' notice and file a report in writing with the judge within 10 days after determination. Upon payment into court of the amount appraised, the lands shall be taken. Either party may appeal as provided in s. 32.06 (10)
. The commissioners shall be paid, by the party seeking to take the land, $3 for each day actually employed and 6 cents for each mile necessarily traveled.
Whenever a cemetery association votes to convey cemetery property and all trust funds pertaining to the cemetery property to a city, village or town, the trustees of the association shall have the power to transfer the property upon the acceptance of the transfer by resolution of the governing body of the city, village or town. A conveyance under this subsection is subject to s. 157.08 (2)
Whenever the majority of the members of a cemetery association, or of a religious association authorized to hold lands for cemetery purposes, present at an annual meeting or special meeting called for such purpose vote to convey all of the cemetery association's or religious association's cemetery property, trust funds and other property used for cemetery purposes to another cemetery association or religious association, the trustees of the association shall transfer the property upon the acceptance of the transfer by the other association by affirmative vote of a majority of its members present at an annual meeting or special meeting called for that purpose. Upon such acceptance, the title to the cemetery property, trust funds and other property of the transferring association vests in the accepting association under the control of the trustees of the accepting association. A conveyance under this subsection is subject to s. 157.08 (2)
Not more than 30 days after a transfer under sub. (6)
, the transferring association shall notify the cemetery board in writing of the transfer, including the name and address of the accepting association or its treasurer. The cemetery board may prescribe and furnish forms for providing the information required under this subsection.
History: 1977 c. 449
; 1985 a. 316
; Stats. 1985 s. 157.064; 1987 a. 190
; 1989 a. 307
; 1995 a. 27
; 2015 a. 237
Location and ownership of cemeteries. 157.065(1)(1)
No cemetery may be used for burials except any of the following:
A cemetery organized and operated by any of the following:
Except as provided in sub. (3)
, no cemetery may be established:
Within a recorded plat or recorded addition to a plat of any city or village, if the cemetery is within one mile of a building in the plat;
Outside a recorded plat or recorded addition to a plat of any city or village if the cemetery is within 3,300 feet of an inhabited dwelling that is located within a recorded plat or addition, unless the city or village consents;
Within 250 feet of any habitable dwelling, publicly owned building or school, unless the cemetery is establishing an extension on property it has owned continually since June 18, 1929; or
Within 3,300 feet of any of the following state facilities, without the consent of the state:
Any incorporated college of a religious order in a 4th class city may establish a private cemetery within the city on land the college owns to bury members of the religious order, if the common council consents and if each person owning a private building within 825 feet of the proposed cemetery consents.
Any private military academy that provides an educational program for grades 7 to 12 in a 4th class city may establish a private cemetery within the city on land that the military academy owns, if the common council consents. No mausoleum within a cemetery established under this paragraph may exceed 3,500 square feet in area.
Any of the following cemeteries may enlarge only in the following manner:
Any cemetery in a village may enlarge with the consent of the village board and of the owners of each building within 250 feet of the addition.
Any cemetery in a 3rd or 4th class city may enlarge with the consent of the common council.
Notwithstanding pars. (a)
, any cemetery established before April 30, 1887, in a village and located within 100 feet of the village limits may extend to the village limits with the consent of the village board.
Notwithstanding pars. (a)
, any cemetery established before April 30, 1887, may expand as provided in s. 157.064
Any violation of this section is a public nuisance.
Connection with funeral establishment prohibited. 157.067(1)(1)
In this section, “funeral establishment" has the meaning given in s. 445.01 (6)
, except that “funeral establishment" does not include a building or part of a building that is erected under s. 157.11 (1)
for holding or conducting funeral services if dead human bodies are not embalmed, cared for, or prepared for burial or transportation, in the building.
No cemetery authority may permit a funeral establishment to be located in the cemetery. No cemetery authority may have or permit an employee or agent of the cemetery to have any ownership, operation or other financial interest in a funeral establishment. Except as provided in sub. (2m)
, no cemetery authority or employee or agent of a cemetery may, directly or indirectly, receive or accept any commission, fee, remuneration or benefit of any kind from a funeral establishment or from an owner, employee or agent of a funeral establishment.
A cemetery authority may accept a fee or remuneration from a funeral establishment or from an owner, employee or agent of a funeral establishment if all of the following requirements are satisfied:
The fee or remuneration is a payment to the cemetery authority for a burial in the cemetery authority's cemetery.
The fee or remuneration payment is made on behalf of the person who is responsible for paying for the funeral establishment's services.
The funeral establishment will be reimbursed for the fee or remuneration by charging the person who is responsible for paying the funeral expenses an amount that is identical to the amount of the fee or remuneration paid by the funeral establishment to the cemetery authority.
History: 1993 a. 100
; 2005 a. 266
If subsidiary corporations have prohibited financial connections, their corporate structure will not save them from the prohibitions of ss. 157.067 (2) and 445.12 (6). Those statutes are not unconstitutionally vague. Cemetery Services, Inc. v. Department of Regulation and Licensing, 221 Wis. 2d 817
, 586 N.W.2d 191
(Ct. App. 1998), 97-2115
Sub. (2) and s. 445.12 (6), which prohibit the joint ownership or operation of a cemetery and a funeral home, do not violate the equal protection or due process clauses of the Wisconsin and U.S. constitutions. Porter v. State, 2018 WI 79
, 382 Wis. 2d 697
, 913 N.W.2d 842
A cemetery authority shall cause to be surveyed and platted by a professional land surveyor those portions of the lands that are from time to time required for burial, into cemetery lots, drives, and walks, and record a plat or map of the land in the office of the register of deeds.
The location of the lands shall be indicated on the plat or map by bearing and distance from a boundary line of a government lot, quarter section, recorded private claim, or federal reservation in which the subdivision is located. The monumentation at the ends of the boundary line shall be described and the bearing and distance between them shown, and the plat or map shall show a small scale drawing of the section or government subdivision of the section in which the cemetery plat is situated, with the cemetery plat indicated. The plat or map shall include the certificate of the professional land surveyor containing the name of the cemetery authority, the date of the survey, the professional land surveyor's stamp or seal and signature, and the professional land surveyor's statement that the survey is true and correct to the professional land surveyor's best knowledge and belief.
The plat or map shall be made on a durable white media that is 22 inches wide by 30 inches long, or on any other media that is acceptable to the register of deeds, with a permanent nonfading black image. Seals or signatures that are reproduced on images that comply with this subsection have the force and effect of original seals and signatures. When more than one sheet is used for any one plat or map, they shall be numbered consecutively and each sheet shall contain a notation showing the whole number of sheets in the plat, and its relation to the other sheets. The sheets may be provided by the county through the register of deeds on terms determined by the county board. The professional land surveyor shall leave a binding margin of one inch on all sides.
The cemetery authority shall cause the plat or map to be recorded. For failure to do so, the plat shall be void, and no sale of a cemetery lot or mausoleum space may be made before the plat is recorded.
The cemetery authority may vacate or replat any portion of its cemetery upon the filing of a petition with the circuit court describing the portion and setting forth the facts and reasons therefor. The court shall fix a time for hearing and direct publication of a class 3 notice, under ch. 985
, and the court shall order a copy of the notice to be mailed to at least one interested person, as to each separate parcel involved, whose post-office address is known or can be ascertained with reasonable diligence, at least 20 days before such hearing. If the court finds that the proposed vacating or replatting is for the best interest of the cemetery authority and that the rights of none to whom cemetery lots have been conveyed will be injured, it shall enter an order reciting the jurisdictional facts and its findings and authorizing the vacating or replatting of the lands of the cemetery. The order shall be effective when recorded by the register of deeds.
This section does not apply to a religious association or a cemetery authority of a cemetery that is affiliated with a religious association.
After the plat or map is recorded under s. 157.07
, the cemetery authority may sell and convey cemetery lots. Conveyances shall be signed by the chief officer of the cemetery authority, and by the secretary or clerk of the cemetery authority, if any. Before delivering the conveyance to the grantee, the cemetery authority shall enter on records kept for that purpose, the date and consideration and the name and residence of the grantee. The conveyances may be recorded with the register of deeds.
If a cemetery lot or mausoleum space is sold by a cemetery authority and used or intended to be used for the burial of the human remains of the purchaser or the purchaser's family members, the purchaser's interests in the ownership of, title to or right to use the cemetery lot or mausoleum space are not affected or limited by any claims or liens of other persons against the cemetery authority.
Before a cemetery authority sells or encumbers any cemetery land, except for a sale described in par. (a)
, the cemetery authority shall notify the cemetery board in writing of the proposed sale or encumbrance. If within 90 days after the cemetery board is notified of the proposed sale or encumbrance the cemetery board notifies the cemetery authority in writing that the cemetery board objects to the sale or encumbrance the cemetery authority may not sell or encumber the cemetery land unless the cemetery board subsequently notifies the cemetery authority in writing that the objection is withdrawn. The cemetery board may object to a sale or encumbrance only if it determines that the cemetery authority will not be financially solvent or that the rights and interests of owners of cemetery lots and mausoleum spaces will not be adequately protected if the sale or encumbrance occurs. The cemetery board may, before the expiration of the 90-day period, notify the cemetery authority in writing that the cemetery board approves of the sale or encumbrance. Upon receipt of the cemetery board's written approval, the cemetery authority may sell or encumber the cemetery land and is released of any liability under this paragraph. The cemetery board shall make every effort to make determinations under this paragraph in an expeditious manner.
A preneed sales contract is enforceable against the successor in interest of the cemetery authority that made the sale.