The war waged between Galena and Berkshire Township over the ownership and control of a centuries-old cemetery escalated Friday when the village filed a lawsuit over the matter.
The village lost the first battle on the new front, though, when Delaware County Common Pleas Judge David Gormley refused to grant a temporary restraining order to prevent the township from transferring ownership of Galena Cemetery.
“Galena has never operated a cemetery,” the village wrote in its brief asking for the restraining order. “Galena does not possess any employees, equipment, funds or a license to operate a cemetery. If a plot owner requires burial, Galena will not be in a position to do so. The township abandoning operation of the cemetery before this matter is resolved may result in irreparable harm to the public if a plot owner requires burial and is forced to be interred at another cemetery.”
Berkshire Township Trustee Bill Holtry characterized the situation as “sad.”
“I am not sure what to say about this,” he said. “It’s just sad. The law is the law. We have been reminded of the law by every level of authority in the county and state that has ruled. It seems pretty cut and dry, and we are subject to be financially penalized (if the township continues to maintain the cemetery).”
The township has cared for Galena Cemetery for more than a century. However, township officials said in March they found an overlooked provision of state law they say requires the village to maintain the grounds because the cemetery is wholly located within the village.
The township’s view on the matter has been supported by the Delaware County Prosecutor’s Office and the Ohio Auditor’s Office, which said in a June letter that township trustees could be held liable and “ordered to pay into the general fund any money spent maintaining and operating” Galena Cemetery — if they don’t relinquish it to Galena.
In an Aug. 21 letter from Mark Fowler, an assistant prosecuting attorney in Delaware County, to the village of Galena, the prosecutor’s office reiterated its opinion. Fowler also warned village officials against filing a lawsuit. The prosecutor’s office is representing the township in the dispute.
“Seeking a court order in this matter is not only unnecessary, it would be a frivolous waste of judicial resources,” Fowler wrote to village officials. “It would be a waste of (the township’s) valuable resources and those of this office. If the village continues to insist on taking this matter to court despite the clear mandate of the law, we will insist that the court order (the village) to compensate us for our time and resources.”
Township officials informed their village counterparts that Aug. 11 was the beginning of a 30-day transition period, after which the township would no longer maintain or care for the cemetery.
However, township officials say they have received no cooperation from the village during the 30-day period.
Late last month, the village hired the law firm of Frost Brown Todd, which filed the lawsuit on Galena’s behalf.
The discovery of the section of state law that prevents that township from spending public dollars on the cemetery came amid high tensions between the two entities.
Village officials have been researching a measure that would allow Galena to withdraw from the township, an action taken after two township residents tried to initiate a merger of the two political subdivisions.
Holtry said he looks forward to the conclusion of the case so that the township can get back to business as usual.
“I just want to get on with trying to manage the township the best way we trustees can,” he said.
Dustin Ensinger can be reached at 740-413-0902 or on Twitter @EnsingerDG.