Galena, Berkshire Twp. officials await cemetery ruling


Officials in Berkshire Township and the village of Galena are waiting for a ruling from Delaware County Common Pleas Court in a lawsuit over who has responsibility for Galena Cemetery.

The township and village have been embroiled in a dispute over the ownership of the cemetery, which is located on North Walnut Street inside the Galena village limits. Berkshire Township owned and operated the cemetery for 183 years, but decided in March of this year to relinquish ownership to the village.

The township cited a section of the Ohio Revised Code that states the village is responsible for care and upkeep of the cemetery since it’s located inside the village boundaries. Both the Delaware County Prosecutor’s Office and the Ohio Auditor’s Office supported the township’s view in the matter.

The disagreement boiled over into court when Galena filed a lawsuit against Berkshire Township in September. Shortly after filing the lawsuit, legal counsel for the village asked the court for a temporary restraining order to prevent the township from ceasing its care for the cemetery. That request was denied by Judge David Gormley on Sept. 14.

The township filed a motion to dismiss the lawsuit on Oct. 2 in Delaware County Common Pleas Court. Attorneys from the law firm of Frost, Brown, Todd LLC, which is representing Galena, submitted a memorandum in opposition to the motion to dismiss on Oct. 15. The Delaware County Prosecutor’s Office, which is representing the township, countered by filing a brief in support of the motion to dismiss on Oct. 22.

Galena Village Administrator Jeanna Burrell told The Gazette on Wednesday that village leaders are “puzzled by the motion to dismiss.”

“The township has acted like they’re just adamant and certain that they are right, to the point that they gave up their license to operate the cemetery,” Burrell said. “If they’re so confident, I’m really confused why they filed a motion to dismiss. Why not let the judge make a decision, unless you’re questioning whether you’re right or not? We felt that was a little unusual.”

In its memorandum opposing the motion to dismiss the lawsuit, legal counsel for Galena wrote: “The intent of the legislature in enacting the cemetery laws was to protect the public’s health and safety from abandoned cemeteries. The legislature did not enact R.C. 759.08 as a vehicle for townships to thwart responsibility for cemetery land it purchased within a municipal corporation and foist responsibility onto the taxpayers of another jurisdiction.”

The memorandum also declares that Galena has been saddled with “an unlicensed, unmaintained cemetery within its jurisdiction” and has “no authorization to lawfully expend funds on a cemetery it does not own.”

Also pending is a motion on behalf of Galena requesting a preliminary injunction to require Berkshire Township to continue operating the cemetery.

Both sides are now waiting for Gormley to issue a ruling. The judge said he generally tries to issue decisions within 60 days of a final brief or response to a motion being filed.

Upkeep up in the air

Before the lawsuit was filed, township officials informed the village that a 30-day transition period would begin on Aug. 11. At the end of that span, the township said it would no longer maintain the cemetery. Township leaders said the village did not provide any cooperation during that period.

The Berkshire Township website now lists only one cemetery that the township is maintaining. That is Berkshire Cemetery located along U.S. 36 between Sunbury and the Interstate 71/U.S. 36 interchange.

“We have discontinued maintaining the (Galena) cemetery on instruction from the prosecutor’s office, so we took that off our website because we’re not responsible for it at this point,” Berkshire Township Trustee Bill Holtry told The Gazette on Wednesday. “Everything’s pending.”

Burrell said the village has not assumed responsibility for maintenance of the cemetery, either.

“We don’t believe it’s ours,” Burrell said. “I can’t go in and spend taxpayer dollars there if it’s not my property.”

Holtry said one burial has been performed at Galena Cemetery since the township ceased its maintenance operations.

“The funeral home took care of it on request of the county prosecutor’s office,” Holtry said. “We really weren’t involved in it at all, frankly.”

Burrell said she’s been informed that families with loved ones buried in Galena Cemetery have tended their graves, and local residents have staged two clean-up efforts and have mowed the cemetery.

Galena, Berkship Twp. at odds in lawsuit

By Andrew Carter

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Andrew Carter can be reached at 740-413-0902 and on Twitter @AndrewCarterDG.

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