The town of Burns has filed a lawsuit against the Burns Cemetery Association who they claim are selling cemetery lots without proper legal authority.

The lawsuit asks the court to enjoin the association from selling lots until the ownership issue is resolved.

As of publication date, no hearing has been scheduled with the court system and the association is conducting cemetery business of selling plots and providing information for the public.

According to Harry Griswold, attorney for the Burns Cemetery Association, the officers of the association “feel they’ve done a wonderful job of running the cemetery and to be criticized and harassed is hard for them. They’ve been working hard all year long, for $25 annual stipend, and it’s hard to be criticized for not doing it right and accused of being dishonest.”

At issue is the legal definition of a cemetery association, as defined by state statutes, and if the town ever gave the association authority to sell cemetery lots. Another issue of contention is what is considered open records and what is considered harassment.

The town is claiming the association is not a bona fide association recognized by Wisconsin statutes, and the certificate it received from the state on April 2 “was obtained under false pretenses,” according to town chairman Paul Kitzmann.

The town argues that in order to be a bona fide cemetery association, the town must have conveyed title for lands to the association, which it has never done by deed. The association, on the other hand, believes authority to be a cemetery association comes from past town ordinances that allow them to manage, maintain and operate the cemetery. The association agrees the land belongs to the town but feels it has the authority to sell the cemetery plots and keep the funds in the association’s coffers. The association claims to have been in existence since 1892.

Wisconsin statutes confer the status of cemetery associations “if the organization has, in good faith, bought and platted grounds and conveyed cemetery lots and carried on business for over 25 years, the same shall be a body corporate from the date of conveyance to it of real estate, and its transfers and other transactions are validated.”

The town’s lawsuit claims the cemetery was never re-platted or recorded by the association, nor did it find any record of any of its property ever being deeded to the Burns Cemetery Association.

Griswold said the association is in the process of surveying the land, having it re-platted and getting it all recorded with the county register of deeds, after town board approval.

The town is also claiming it never gave the association the legal authority to maintain and operate the cemetery. According to Kitzmann, cemetery operations migrated to the association sometime in 1998 or 1999. The town clerk, who was also treasurer of the association at the time, had been taking care of cemetery business. However, when she retired, she continued doing it as a volunteer and then eventually asked association members to help her out. According to Kitzmann, therefore, the town did not provide the authority through issuing any ordinance or resolution.

“I think the town board dropped the ball at that time,” Kitzmann said. “Some things fell through the cracks with people retiring from the board.

“The association was never given the authority to sell the lots. It happened over time; they started doing it. Probably just an honest oversight (with the) new town board just let the association continue to sell the lots. It changed without being noticed or formalized. It’s nobody’s fault (but) let’s just fix this for everyone’s sake.”

Linda Saley, president of the Burns Cemetery Association since 1992, said the group has tried its best to manage and maintain the cemetery honestly and fairly.

“We’ve done our very best to keep that cemetery going and doing what we were told to do, said Saley. “If it wasn’t recorded, it was before my time. The past cemetery board and town board should have done it.”

Kitzmann said the town pays all insurance and does all the mowing. Sometimes they share mower repair costs.

“The town owns the land,” Kitzmann said. “The association keeps all the money.”

Kitzmann also said he is only attempting to obtain documents that are rightfully subject to Wisconsin open records laws. He claims the town made numerous attempts to obtain documents from the association and it took two years to get all the documents requested.

“Finally, one week before the (recent) election, we finally got the rest of the documents we asked for two years ago. If I’m having this much trouble as a town board member, what is an average citizen going to get?”

Saley said the town board kept changing what it was they wanted, so the association was never clear as to what to send them.

“He never knew what he really wanted,” Saley said. “He’d send one (request), then a week later send another totally different one. (I) didn’t know until the bitter end what he wanted.”

When asked why the association took so long to get a certificate of status from the state when it claims to have been in existence since 1892, Saley said no one knew or told her that it was a document she needed to get.

“As soon as we found out we needed it, we took care of it.” Saley also said as soon as they learned the land had not been re-platted by either the town board or the association after the third addition was added in 1948, the association proceeded to get it surveyed, platted and, after approval from the town board, will have it recorded.

The town board includes in its lawsuit a town of Burns cemetery ordinance, dated December 6, 2006, outlining authority to a Cemetery Board of Trustees, also known as the Burns Cemetery Association.

For their part, the association claims the ordinance was never published and therefore not effective. The association argues that “Ordinance No. 6,” dated May 27, 2003, was published and that is the authority they are following. That ordinance creates a cemetery board of trustees known as the Board of Trustees of the Burns Cemeteries.

Kitzmann said the December 2006 ordinance, which repeals all other rules and regulations and ordinances pertaining to the purchase, sale and use of burial sites or lots, was published the same way all the ordinances are published, in public places. Kitzmann said the ordinance had to be issued in order for the town to absorb the Rockland Cemetery properties since it was disbanding. Both ordinances exclude Rockland Cemetery, therefore the only difference in the two documents is how the funds being held in trust from the result of sale of lots and sites is to be invested. It is addressed in the 2003 ordinance but not the 2006 ordinance.

According to both ordinances, “The said board shall have complete management and control and shall enforce all rules and regulations of all cemeteries located in the town of Burns, excepting the Rockland Cemetery.” The 2003 document also says, “The town board shall hire a sexton and other necessary help and shall pay for these costs and all other maintenance costs for the care and upkeep of the cemeteries. At the direction of the town board, the town treasurer shall pay to the toard of trustees all necessary costs of the operation of the cemeteries.”

The ordinance also states that “the Board of Trustees may, by a 60 percent vote, modify and make exceptions herein provided in connection with the sale, transfer or use of lots, sites and cemeteries, subject only to the approval of the town board.”

In addition, the published ordinance provides the same authorities to the Association for the Sand Creek Cemetery but specifically excludes the Rockland Cemetery. The association sold 15 cemetery lots for a total of $8,689.50 in the past fiscal year for both Burns and Sand Creek cemeteries. According to the April 2007 annual report, the Burns Cemetery Association has $63,023.17 in its accounts.

Saley claims there are ordinances going back to 1971 or earlier dealing with the association. She also said that accusations that people are calling and not getting responses from the association were “false accusations.”

“People need to be taken care of with respect, the living and the deceased,” Saley said. “I have relatives down there just like everyone else does.”

Kitzmann, though, said he is just trying to make sure ordinances are followed.

“That’s all I’m trying to do,” he said. “It’s our job to have our “I”s dotted and “T”s crossed. The town of Burns dropped the ball on getting the land platted and recorded. (It) could have delegated it, but (the) town never delegated that. So we should have done it.

“This injunction is simply to fix this issue,” Kitzmann said. “It’s not attacking anyone or saying there doing anything criminal. It’s just to address the issue.”