The Fifth District Court of Appeals affirmed Delaware County Common Pleas Court’s judgment in the ongoing legal dispute over Fairview Memorial Park cemetery and denied Berlin Township more than eight acres of undeveloped land.
The appeals court issued its ruling Dec. 20 as a response to an appeal filed by Berlin Township earlier this year. In its appeal, the township asked the court to overturn a ruling by Delaware County Common Pleas Judge David M. Gormley that granted the township legal ownership of Fairview Memorial Park, 5035 Columbus Pike in Lewis Center, and allowed receiver A.C. Strip to sell an adjacent parcel of 8.32500 acres of undeveloped land.
The cemetery’s owners, Theodore and Arminda Martin, are currently in prison for theft charges after they pleaded guilty to accepting money for items but never delivering them. Strip was appointed to care for the cemetery in 2017 and was tasked with finding a buyer. In 2018, Strip asked the court’s permission to enter into negotiations to sell a portion of the cemetery as well as the undeveloped parcel to the Islamic Society of Central Ohio for $130,000, at which point Berlin Township filed motions stopping the sale and demanding the cemetery and undeveloped land be given to the township.
In April, the township appealed Gormley’s ruling and argued that the undeveloped parcel was part of the cemetery. The township then demanded that the undeveloped land also be transferred to Berlin Township. The township cited a case from 2007 to back up its appeal.
The appeals court’s opinion states that in the prior case the township was using to justify their appeal, State ex rel. Petro v. Cincinnati, was distinguishable from this case and did not apply. The cited case centered on the president of a charitable trust in Cincinnati who was convicted of theft and sentenced to prison. The trust had been overseeing a cemetery, but the cemetery was abandoned and neglected, and the courts transferred ownership of the cemetery to the local municipal corporation.
The appeals court stated that the two cases are very different since this cemetery was never legally abandoned, and the Cincinnati cemetery did not have a receiver appointed to it.
The appeals court’s decision then sides with Gormley’s ruling with regard to the undeveloped parcel and rules it was a separate and distinct entity from Fairview.
“The evidence established the cemetery was actively operating as a cemetery, while the undeveloped parcel was not developed in any manner and was not being used for cemetery or any other purposes,” the appeals court wrote. “…Because the undeveloped parcel was not presently being used as a cemetery, the undeveloped parcel did not transfer to Berlin Township by operation of law.”
The appeals court also pointed out that the two pieces of land have separate parcel numbers and were purchased at different times.
There have been no filings in the case since the Fifth District Court of Appeals’ ruling.
Glenn Battishill can be reached at 740-413-0903 or on Twitter @BattishillDG.