Berlin files rebuttal to cemetery ruling


By Glenn Battishill - gbattishill@aimmediamidwest.com



Fairview Memorial Park in 2017.

Fairview Memorial Park in 2017.


Glenn Battishill | The Gazette

Berlin Township has filed a motion in Delaware County Common Pleas Court asking a judge to reconsider his recent decision to transfer Fairview Memorial Park to the township but allow one parcel of land to be sold by the receiver.

The originally owners of both parcels of land, Theodore and Arminda Martin, are currently in prison after pleading guilty to theft charges for taking money for plots and items at the cemetery but never following through with the orders.

In May 2017, Delaware County Common Pleas Judge David M. Gormley appointed A.C. Strip, a Columbus attorney who has handled cemetery receiverships before, to be the receiver for the cemetery. Since then, Strip has been working to find a buyer for the cemetery, and in April of 2018, Strip asked for approval to sell a small portion of the cemetery as well as the undeveloped land adjacent to the cemetery. Berlin Township then filed to join the case as a party, objected to the sale, and asked that it be given the cemetery and the adjacent undeveloped parcel of land.

Strip and the township filed numerous arguments and motions since last April, and last month, Gormley ordered that ownership of Fairview Memorial Park, located at 5035 Columbus Pike in Lewis Center, be transferred to Berlin Township, and he ruled that Strip is allowed to sell the parcel of undeveloped land that borders the cemetery.

Berlin Township filed a motion last week contesting the ruling and asking Gormley to also transfer control of the undeveloped land to the township, arguing that the cemetery consists of both parcels.

“…the existing record details that the Delaware County Prosecutor, the Receiver, and this Court have recognized that the cemetery consists of both parcels,” writes Christopher A. Rinehart, Berlin Township’s attorney in this case.

Rinehart then quotes statements and entries written by the prosecutor’s office, Strip, and Gormley, which refer to the cemetery itself and the undeveloped parcel as “the cemetery.”

Rinehart also argues that the taxes that have been paid on the undeveloped parcel were paid under the cemetery code.

Additionally, Rinehart argued that if Gormley denies the township’s motion to get the second parcel and the parcel is sold, the proceeds of the sale must go to the operations of the cemetery.

“…it would appear, the proceeds of such a sale must be applied to the outstanding claims pending against Fairview (secured and unsecured), and then applied to the ongoing operation of the company,” Rinehart said. “Because such proceeds apply to the operation of the cemetery, arguable, any leftover proceeds from the sale should be transferred to Berlin Township. It would appear that Ohio law does not permit such proceeds to be used to compensate a Receiver.”

Rinehart also requests that if Gormley denies the motion, he give the township extra time before he issues a final ruling so it has time to conduct discovery and review documents possessed by the receiver.

Gormley has not yet filed a response to Berlin Township’s motion.

In his ruling last month, Gormley wrote that though Berlin Township does not distinguish between the two parcels of land, there’s no reason for the two parcels to be treated the same.

“The two parcels were purchased at different times,” Gormley writes. “Although the intent of (the Martins) might have been to use the second, undeveloped parcel as an extension of the cemetery, there is nothing in the record to indicate that the undeveloped parcel has been used for that purpose. And there is nothing to indicate that a use other than for a cemetery is prohibited on the undeveloped parcel. I therefore see no reason to treat the parcels as one asset instead of two.”

Fairview Memorial Park in 2017.
https://www.delgazette.com/wp-content/uploads/sites/40/2019/04/web1_DSC_0264.jpgFairview Memorial Park in 2017. Glenn Battishill | The Gazette

By Glenn Battishill

gbattishill@aimmediamidwest.com

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

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