Judge denies Berkshire Township’s motion in Galena Cemetery case


A Delaware County Common Pleas Court judge has denied a motion to dismiss a lawsuit over who has responsibility for Galena Cemetery.

Judge David Gormley filed a judgment entry on Dec. 7, denying the Berkshire Township trustees’ motion to dismiss the case. Township attorneys filed the motion on Oct. 2 and attorneys from the village of Galena responded on Oct. 22.

The township’s motion to dismiss argued that the village has no standing to assert that the township should be forced to continue operating the cemetery or that the village has no obligation to the cemetery. It also argues that the village failed to name other involved parties, such as owners of used burial plots and the Ohio Department of Commerce.

Gormley said in his judgment entry that the village and the township are “the only plausible entities to assume responsibility for and provide care for the cemetery” and because the township claims it is no longer responsible and has ceased maintaining it, the village is the only other entity that could assume responsibility for it.

Gormley added that speedy relief of the issue is necessary to preserve the rights of the parties because, without either the township or village spending funds and maintaining the cemetery, the property would deteriorate to a point that “threatens the health and safety of the public and subjects Plaintiff Village to further legal action.”

Neither party has filed any motions since the judgment entry.

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 to relinquish ownership to the village. Galena officials have said they do not have the resources to run and maintain the cemetery.

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 village boundaries. Both the Delaware County Prosecutor’s Office and the Ohio Auditor’s Office supported the township’s position, and even stated that trustees could be held personally responsible for spending township tax dollars on the cemetery.

The disagreement went to 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 Gormley on Sept. 14.

Both sides are awaiting Gormley’s final decision in the lawsuit.

By Glenn Battishill

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Glenn Battishill can be reached at 740-413-0903 or on Twitter @BattishillDG.

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