To Ms. D’Anne Williams:
I really do not know why I am bothering to comment on the newest proposed cemetery rules and regulations. It is very clear that the Austin Parks and Recreation Department (PARD) has absolutely no interest in complying with the City Council resolution enacted October 17, 2013, which required the City Manager, stakeholders, and PARD to work together on evaluating current cemetery policies, and no desire or intention of working with or listening to stakeholders. It is apparent that PARD has already decided what it wants to do and is only going through the motions of pretending to interact with the public or caring about the feelings or concerns of those with loved ones or friends interred in Austin cemeteries. I am responding not because I think PARD is going to give my comments even passing consideration but to establish a documented trail of PARD’s incompetence, negligence, and past and continuing violations of state and local law for future legal redress. However, because I am an optimist and hoping that PARD will prove these perceptions are wrong, I am also including recommended additions and revisions to the current proposed rules.
As an example of PARD’s failure to engage the public in any meaningful way, I note that I sent a lengthy and detailed response to the first proposed rules and regulations to D’Anne Williams of PARD’s Development Division on January 11, 2018. I never received any personal response, but learned through another stakeholder that PARD, typical of its lack of transparency, had posted a link to “Cemetery Rules Public Comments and Staff Responses” on the PARD Cemetery Division website in lieu of engaging personally with all those who took the time and made the effort to comment. Because of the terrible formatting, the entire document is not only very difficult to read but impossible to print in full. I discovered that in this document, PARD divided up my comments into 31 sections. In thirteen of those sections, PARD responded only with “See previous response” with no link or other direction to indicate which previous response. For nine sections, there was no response at all, even to comments raising urgent and important questions including: PARD’s lack of legal authority to impose new regulations on existing grave sites; how PARD intended to deal with existing grave site gardens and memorials, many decades old, that had been created with PARD’s explicit and implicit consent; and issues regarding PARD’s failure to implement the Austin Perpetual Care Trust Fund (PCTF). That means that PARD only responded to 10 sections, or less than one-third of my comments. And these responses were at best only cursory replies either asserting PARD’s authority to impose new rules and regulations or referencing specific proposed rules. I sent a 17-page letter and received a total of 21 brief sentences in response.
I want to make one thing very clear—I and other stakeholders completely understand and agree that there is a need for reasonable regulations. All we have ever wanted is sit down at a table with PARD to express our concerns and exchange ideas regarding the development of reasonable cemetery rules and restrictions, as envisioned by the October 17, 2013, City Council resolution. All the delay in the process has been due to bureaucratic foot-dragging, equivocation, and utter lack of transparency by PARD and its refusal to comply with that resolution. These latest proposals are just further evidence of PARD’s absolute lack of good faith and its failure to truly engage with the stakeholders or the public.
Despite over four years of surveys, meetings, and comments, PARD has clearly failed to work with or to listen to the public or stakeholders. This process has been a complete waste of stakeholder time and taxpayer funds. Further, the rules do not even address PARD’s supposed initial concerns regarding deteriorating or allegedly dangerous or inappropriate grave ornamentation. They also fail to address issues regarding existing grave site memorials and gardens. If anything, PARD’s four years of delays and obstruction has made the problem even worst. The memorial garden over my niece’s grave in Austin Memorial Park (AMP) has now flourished for over a decade. My father has rested in AMP since 2012 and when my mother passed away in 2015 we extended the original stones outlining my father’s grave and his memorial garden to encompass my mother’s grave, so that my father and mother are again united. Further, I and my sister-in-law Tina Huckabee have both been told by Kimberly McNeeley, Acting Director, PARD, that the proposed rules and regulations will not apply to existing grave site gardens and memorials. As set forth below it is therefore vital that the proposed rules clearly state that they will apply only prospectively.
One other thing is also clear—if PARD approves the proposed rules as they now exist and continues to ignore the issue of existing memorial gardens, we will once again appear before City Council, testifying in great detail how PARD has willfully ignored the council’s resolution and significantly wasted both taxpayer time and resources. This time it will also be necessary for I and other stakeholders to consider legal redress and to push for a criminal investigation regarding the possible fraudulent misuse of PCTF.
Neither the City of Austin nor PARD has the legal authority to impose new rules or regulations regarding existing grave site memorials and gardens. Therefore, the proposed rules must expressly state that they will apply only prospectively.
In my January 11, 2018, comments, I extensively discussed PARD’s failure to publicize or enforce the existing cemetery rules and regulations following the enactment of the rules and regulations in 1978. I noted that even though my family has purchased a total of six grave lots in AMP, PARD never provided me or any of my family members with a single pamphlet, brochure, contract, or any other document setting forth these rules. I also noted that these rules and regulations are not included in the City of Austin Code of Ordinances. I explained that this was significant for two reasons: first, the said ordinances would be the most logical and readily accessible resource for a citizen trying to determine if there were rules and regulations regarding grave site memorials; and second, these existing rules and regulations are not ordinances, lacking the authority of law, and therefore can be waived by failure of the City of Austin or PARD to timely enforce them. Having failed to publicize or enforce these rules and regulations for over three decades, despite open, obvious, and continuing violations, PARD therefore had effectively waived such rules and regulations and no longer has any legal right to try to retroactively enforce them.
Nor does PARD have any authority to impose new rules on existing grave site memorials and gardens to the extent such new rules and regulations would force the entire or substantial removal of existing memorials or gardens. As I explained in my previous comments, it is well established under law that when a city enacts an ordinance, law, rule, or regulation that significantly affects the enjoyment or use of an existing property or business, that existing use must either be grandfathered for as long as the initial use continues or the city must fairly compensate the property holder for the loss of the value or use of the property. In this case, any existing memorials or gardens must be grandfathered as long as the initial use continues; PARD would be able to impose the new rules and regulations once the site holder failed to maintain the initial use, such as abandoning and substantially failing to maintain the grave site. Further, as I stated in my previous comments, not only has PARD failed to enforce the rules and regulations, for over three decades PARD and its agents have both implicitly and expressly authorized stakeholders to create memorials and gardens on grave sites.
Finally, as I explained in my prior comments, PARD has no moral or ethical right to retroactively enforce either the current or new rules and regulations on existing grave site memorials and gardens. Such attempts by PARD would arbitrarily punish those Austin citizens who over the past three decades in good faith relied upon the acts and omissions by PARD and its agents and created grave site memorials and gardens, many of which have been in place for years. These grave site memorials and gardens were created by families and friends as part of the mourning process and were created to reflect the personality of the departed. Forcing the removal or destruction of these personal tributes will cause tremendous and unnecessary grief. Austin citizens should not suffer because of PARD's neglect and dereliction of its duties.
PARD’s only response to my prior comments was to assert that:
“The City Council directed and authorized it to adopt rules by a prescribed process by approving City Code Section 10-1-2. City Council set out the process for the adoption of rules under City Code Chapter 1-2.”; and
“The proposed rules are less restrictive and more safety oriented than the current rules adopted in 1978. The current rules have not been consistently enforced so before implementing equal enforcement we have taken the opportunity to update the language and incorporate current needs and practices. We understand implementing these rules pose challenges and we are more than willing to discuss individual needs with the understanding that we must preserve the rights of all customers and provide overall safety.”
Neither of these responses addressed the fact that under law PARD is effectively barred from imposing new rules and regulations that significantly affect the enjoyment or use of an existing property or business and that such existing use must be grandfathered for as long as the initial use continues or the city must fairly compensate the property holder for the loss of the value or use of the property. PARD has the legal duty and moral obligation to grandfather in existing memorials and gardens, but is free to work in good faith with the site holders to try to reach reasonable resolutions of issues. Further, if PARD is going to illegally attempt to enforce these proposed rules on existing grave sites, how is it planning to do so? Throughout the Austin cemetery system there are hundreds, if not thousands, of grave site memorials or gardens that do not comply with the proposed rules. Is PARD willing to redirect its limited resources from regular and much needed maintenance work to tear up benches, stones, curbing, trees, and plantings throughout the entire cemetery system? Many of the memorials and gardens have been in place for years and cannot be removed without substantially destroying or desecrating much of the grave site, leaving gapping holes, trenches, and exposed soil. Is PARD willing to sustain the public outcry that will follow when families start posting pictures of desecrated graves, destroyed memorials, and torn up gardens to news organizations and public media? Is PARD willing to provide the substantial materials, resources, and city employees to remove such memorials and to then immediately repair, fill-in, level, sod, water, and maintain these grave sites? Or are families and friends going to be forced to visit and watch the desecrated graves erode and deteriorate? Looking at the current and significant maintenance issues at AMP, such as the rusting and collapsing fence, dead and neglected trees, cracked and pot- holed roads, and periodic flooding, it is very clear that PARD already lacks the resources to even minimally maintain the cemeteries (see attached documentation. I must note that I took these pictures and I did not go searching for these examples of significant neglect and deterioration—they are what I see each time I visit my parents’ and niece’s graves).
Finally, but most significantly, I and Ms. Huckabee have both been told by Kimberly McNeeley, Acting Director, PARD, that the proposed rules and regulations will not apply to existing grave site gardens and memorials. Therefore, to make the intent of the rules clear and avoid any future controversy, the following provision must be added to Section 14.4.2-Applicability:
These rules and regulations take effect upon the day of adoption and are solely prospective. All existing uses of and modifications to lots, spaces, memorials, and memorial spaces by space holders are expressly grandfathered, except as otherwise provided herein.
PARD would still have the right under the proposed rules to remove any items that present an imminent danger to public safety, that are broken or deteriorated, or encroach on public ways or other grave sites. Further, to avoid any future issues regarding the cemetery rules and regulations, PARD must publish these rules and make they readily accessible to the public. I recommend the addition of the following:
14.4.15-Notice and Publication of Rules
The Parks and Recreation Department shall ensure that rules, and any proposed or adopted revisions or changes, are published and readily available to the public, including, but not limited to, prominently posting these rules on its website and making copies of the rules available at all cemeteries under its management. Further, the Parks and Recreation Department must provide a written copy of the rules to any and all persons who inquire about purchasing or who purchase a lot or space within any cemetery managed by the Parks and Recreation Department.
The Austin Parks and Recreation Department still has failed to comply with the City Council resolution enacted October 17, 2013. This entire process must be put on hold until PARD finally agrees to negotiate in good faith with the public as intended by the City Council.
In my January 11, 2018, comments I set out a lengthy and detailed timeline demonstrating unequivocally that for over four years PARD has utterly refused to comply with the October 17, 2013, Austin City Council resolution. As clearly set out in my previous comments, members of PARD have refused any direct discussion or negotiation with the public or stakeholders. Not once in over four years were the stakeholders ever actually allowed to sit down at the table with PARD and work together on some sort of reasonable compromise, which was certainly what was envisioned in the original City Council resolution. This evidence, I explained, demonstrated a typical pattern for PARD, long delays with little or no communication with the public interrupted by a handful of hastily called public meetings with no meaningful discussion or negotiation, and then PARD trying to rush through rules and regulations that clearly were drafted with little thought or concern for the public or stakeholders. I asserted that PARD should not be allowed to flout the City Council resolution. PARD’s only response to my extensive comments was “See previous response,” but there was no link or other indication regarding which, if any, response. This entire rules and regulations process must be put on hold until PARD finally agrees to end its bureaucratic delay and equivocations and meet face to face with the public as intended by the City Council.
PARD has again failed to properly notify the public and stakeholders of the comment period and deadline. Because PARD has failed to give sufficient public notice, any finalization of cemetery rules and regulations are completely illegitimate, invalid, and of questionable legality.
In my January 11, 2018, comments, I set out how PARD had failed to properly notify the public of both the proposed rules and the comment period. I pointed out that PARD’s own website was completely silent regarding the comment period for the rules and failed to set forth the deadline for comments. A member of the public wishing to comment on the rules would find only a link to the proposed rules and instructions: “For more information about public input on Cemetery Rules & Regulations, please contact cemeteries@austintexas.gov." I noted that it would have been an extraordinarily simple thing for PARD to post notice of the comment period and the deadline on its website and that its failure to do so underscored PARD’s complete lack of transparency and engagement in this process. However, despite my previous comments, PARD has again has failed to put any public notice of the posting of the new proposed rules or regulations or comment period on its website. This was not rectified until June 19, 2018, less than one week before the end of the public comment period, after I personally pointed out this lack of public notice to Anthony Segura, assistant director, PARD. The revision is far too late
and constitutes insufficient notice to the public. Although I had expressly pointed out this issue of lack of notice regarding the website during the first round of public comment, PARD obviously utterly ignored my comment. This brings into question whether the PARD gave any serious consideration to the public comments during the first comment period and underscores its continuing failure to engage in a transparent and open dialogue with the public.
I did find the original posting of the new proposed rules on the City Clerk’s website: https:// austintexas.gov/news/proposed-cemetery-rules-have-been-resubmitted-city-clerks-office However, to find them a citizen must first know that new rules and regulations have been submitted and then be able to do a successful Internet search. There are Austin citizens who lack computer resources and are therefore effectively barred from participating. This certainly is not what I consider a good faith effort to obtain public comment or comply with the opening meetings law and invalidates the entire comments process.
Finally, why are there not open public meetings regarding this very important and sensitive issue? There are many citizens in Austin who are not computer savvy or who do not have access to the Internet. These citizens have no way of even knowing that new cemetery rules and regulations are being considered and no way of commenting on them. They therefore have been effectively disenfranchised by PARD’s decision to limit public notice to a single site on the Internet and to avoid any open public meetings.
Only those who have been involved in the process from the beginning and are on PARD’s e- mail list have received actual notice of the new deadline, but this in no way constitutes any notice to the public at large. And to make matters even more confusing, the e-mail I received from PARD dated June 18, 2018, declares that the end of the public comment period runs through June 22, 2018, even through the posting with the City Clerk states that it runs through June 24, 2018. Someone who goes by the posting with the City Clerk and is not on PARD’s e- mail list could miss the public comment period by two days. This too was rectified after I personally brought it to the attention of Mr. Segura, but again not until June 19, 2018, less than one week before the end of the public comment period.
In my January 11, 2018, comments, I noted that the only other public notice I haveI have seen was a single small sign posted at AMP. This time around I have not seen any sign posted at AMP and I must assume no signs have been posted in the other city cemeteries. Therefore, for this round, PARD has even made less of an effort to inform and involve the public.
These facts demonstrate PARD’s refusal to engage in an open and transparent public process and a complete lack of good faith on its part. PARD’s own actions call into question the legitimacy of the process and the draft rules. As a department of the City of Austin, it is both illegal and unethical for PARD to deny the public input in negotiating and commenting on the cemetery rules and regulations. After such blatant malfeasance by PARD, any action by PARD at this point to finalize cemetery rules and regulations are completely illegitimate, invalid, and of questionable legality.
The proposed rules even more blatantly violate federal law barring discrimination.
As another example of PARD’s complete failure to either listen to or attempt to understand public concerns, in my January 11, 2018, comments, I pointed out that the proposed rules violated federal law. Under the previously proposed Section 14.4.12-General Regulations, (D) Ornamentation and Decoration, a person was expressly prohibited from placing any object, including ornaments, decorations, furniture, plants, or signs, in a cemetery that is not specifically permitted under the rules. An ornament or decoration would be permitted in a space only if it was: placed on a memorial; was no longer than six inches in any dimension; and would not interfere with mowing or other cemetery maintenance. I explained that in Jewish tradition, visitors leave a small stone when visiting a grave site as a symbol of the permanence of love and memory. The stones are traditionally placed on the headstone or at its foot and they are never meant to be removed. In the Jewish section of AMP, stones have been left by mourners and visitors on their loved ones graves for decades; there is even a receptacle holding stones for visitors to use. I stated that no document I received through my public information requests discussed or mentioned the stones left at Jewish grave sites and that this had never been an issue. However, I asserted that if the proposed rules were interpreted in the strictest sense, then the stones could only be placed on the headstone itself and all other stones would not only be prohibited, but would be subject to removal by the Cemetery Administrator. This would be a blatant violation of Jewish tradition and a desecration of Jewish resting places. I pointed out that Title II of the United States Civil Rights Act of 1964 prohibits discrimination on the grounds of race, color, religion, or national origin in any place of public accommodation. The cemeteries are public parks and imposing any new regulation prohibiting Jewish citizens placing stones on graves when there has been no such limitation before and authorizing public employees to remove stones from Jewish graves would clearly discriminate against the Jewish citizens of Austin. Barring Jewish visitors from engaging in this long established ritual would not only make Jewish citizens feel unwelcome in a public cemetery but could result in Jewish families refusing to bury their loved ones there or even moving current burials to a more welcoming venue. I noted that that a stringent and narrow interpretation of this proposed rule could possibly violate the religious beliefs or traditions of other religious or ethic groups as well. PARD’s only response: “Due to public feedback we have added to the definition of ‘Memorial’ to include a tablet, monument bench or other structure and have added a definition for ‘Memorial Space' for the area the ornamentation can be placed which will further be described in 14.4.12 (D). The City of Austin and the Parks and Recreation Department are proud to comply with Title II of the United States Civil Rights Act of 1964. If you feel that there are specifics violations of Title II, please contact the Department to review.”
However, the revision of Section 14.4.12 (D) now provides that: “An ornament, potted plant, floral piece, basket, or other decoration is permitted in the memorialization space if: (1) Located entirely within the memorialization space; and (2) Firmly anchored and secured, using means other than concrete or chain, to prevent any part from leaning, falling over, breaking or blowing outside of the memorialization space.” In other words, under the new proposed rules anyone who wants to fulfill the Jewish tradition and leave a stone on a loved one’s headstone or grave has to somehow “firmly anchor and secure” every individual pebble, not using “concrete or chain.” How exactly does PARD expect visitors to comply with this—use all-weather duct tape to secure the stones to the headstone? Superglue a tiny spike onto every single pebble and hammer it into the ground? Further, are PARD employees going to use public time and resources to desecrate Jewish graves by removing every small stone that is not deemed individually secured? This new proposed rule is even more blatantly discriminatory than its predecessor, not only violating the rights of Jewish citizens, but possibly those of other religious and ethnic groups as well.
Further, in October of 2013, I and other stakeholders were told that PARD wanted to enforce the rules and regulations in part because of concerns regarding public safety. We were told that people were leaving dangerous, deteriorating, or inappropriate items on graves, including non- weather-proof items as clothing and paper, glass or other breakable items, items that could blow away or fall over, or items such as cigarettes or alcohol. However, under the new proposed rules, any item can be placed on the “memorial” or in the “memorial space” as long it is “firmly anchored and secured.” This means alcoholic beverages, packages of cigarettes or cards, clothing, and non-weatherproof items like paper flags and plastic banners can be left on the memorial as long as they are anchored in some way “to prevent any part from leaning, falling over, breaking or blowing outside of the memorialization space.” In other words, placing a small pebble on a headstone in accordance with long-established Jewish tradition is a violation of the new proposed rules but it would acceptable to leave a bottle of beer as long as it is anchored by
sticking it neck first in the ground or a pack of cigarettes, a piece of clothing, a paper sign, a stuffed toy, or any other object, as long as it is secured to a stake.
The City of Austin has implemented a Perpetual Care Trust Fund in accordance with Texas law. This fund should be incorporated in and made part of the cemetery rules and regulations as it directly involves the maintenance of individual grave sites and the city cemeteries. Any rules and regulations must be placed on hold until PARD complies with both state law and Austin ordinances and fully implements such a trust.
In my January 11, 2018, comments, I noted that under Texas law, a municipality that owns, operates, or has control of a cemetery may act as a permanent trustee for the perpetual maintenance of the lots and graves in that cemetery. The municipality's governing body must adopt an ordinance or resolution stating the municipality's willingness and intention to act as a trustee, creating a perpetual trust. The state law requires such a municipality to accept donations on behalf of a person or a decedent for designated graves or burial lots. The funds are to be invested in interest-bearing bonds or governmental securities and income or revenue of the fund must be used for the maintenance and care of the grave, lot, or burial place for which the funds are donated. However, any income or revenue that is more than the amount necessary to accomplish the trust may be used to beautify the entire cemetery. I pointed out that in 1992 the City of Austin has indeed implemented such a trust pursuant to the Texas statutes, as Section 10-1-11, et seq. of the Austin Code of Ordinances establishes the City of Austin Perpetual Care Trust Fund (PCTF). Both I and Ms. Huckabee attempted to contact the city clerk by e-mail and telephone to find out how to apply as trustees, me for my parents’ graves, as well as the lot belonging to me, and her for her daughter’s grave. When we received no response, I filed a public information request with the city seeking all documents, memorandum, accounts, records, and information regarding PCTF.
On January 26, 2018, I received electronically a handful of disparate documents in response to my request. I did not receive a single document showing that PARD had even implemented or attempted to comply with either the City of Austin Code or state law regarding PCTF. I did discover that as of 2016, there was $1,011,000 in PCTF and even more significantly that from 1991 through 2016, $2,216,255 of expenditures were made from PCTF. Under both state and local law the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot or burial space must first be applied to maintain that specific lot or space. If there is any revenue in excess of the amount necessary to accomplish the trust for that specific lot or grave, that excess may be used only to beautify the cemetery where the lot or grave is located. There is no other permitted use of this revenue. However, there were absolutely no records showing that these expenditures were made in accordance with such state and local law. In fact a number of these expenditures were denoted as “Public recreation and culture.” If this indeed was what the proceeds of PCTF were spent on, it is a blatant violation of state and local law.
On January 11, 2018, in my comments to PARD regarding the proposed cemetery rules and regulations, I discussed how the implementation of a cemetery trust to allow citizens to fund the perpetual care of grave sites would provide significant funding for PARD, as well as provide for a more ecologically sustainable and attractive cemeteries, noting that Austin has in fact implemented such a trust. I stated that I would be more than willing to pay into such trust to preserve and care for the grave site garden for my parent’s graves. Properly administered, I noted, such a trust could not only resolve issues regarding the grandfathering of existing grave site memorials and gardens, but could provide much needed funds to PARD for maintaining and beautifying the cemeteries as a whole. I have never received any response from PARD regarding my PCTF comments; similar comments from Ms. Huckabee regarding PCTF also went unaddressed, PARD responding with only a bland bureaucratic “your input is valuable to us” and utterly failing to answer her remarks regarding PCTF.
PARD’s mishandling of PCTF requires that any further actions by PARD regarding the cemetery rules and regulations must be placed on hold until PARD complies with both state law and Austin ordinances and fully implements such a trust. This fund should also be incorporated in and made part of the cemetery rules and regulations as it directly involves space holder’s rights and the maintenance of individual grave sites and the city cemeteries. I recommend the following addendum to the proposed Section 14.4.7-Instructions for Space Holders and Space Holder’s Rights:
(F) The City of Austin has implemented the Perpetual Care Trust Fund pursuant to Section 713.002 (Local Trust for Cemetery), Texas Health and Safety Code, to assure the perpetual maintenance of the city cemeteries. Participation in the trust fund is wholly voluntary. A person may submit an application to act as trustee and pay a deposit into the trust fund. The deposit is invested in interest-bearing bonds or governmental securities and the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot, grave, or burial space must be used to maintain that specific lot, grave, or burial space. Any revenue in excess of the amount necessary to accomplish the trust for a specific lot, grave, or space may then be applied to beautify the cemetery where the lot, grave, or space is located. For more information, contact the Cemetery Administrator or the City Clerk.
The proposed rules grant the Cemetery Administration extensive powers without any checks or balances.
Proposed Section 14.4.12-Ornamentation and Decoration, Subsection (A) authorizes the Cemetery Administrator to remove any object in a cemetery that is not specifically permitted under these rules or that the Cemetery Administrator determines to present a current or foreseeable threat to the public’s health or safety. This gives the Cemetery Administration complete and unchecked power to remove objects from grave sites based solely upon his or her discretion and without any notice or review. Further, there is nothing in the rules requiring that the removal be done in a careful and caring manner or providing for the repair or remediation of any damage or injury to a grave site resulting from removal of the object. I recommend the addition of the following revisions to Subsection (A):
(A) The Cemetery Administrator may remove any object in a cemetery that is not specifically permitted under these rules or that the Cemetery Administrator determines to present a current or foreseeable threat to the public’s health or safety if:
(1) the Cemetery Administrator gives no less than sixty (60) days written notice to the space holder, sent certified mail, return receipt requested, to the space holder’s last known address. Such notice shall set out in detail why said object is not specifically permitted under these rules and provide the space holder the option to remove the object or to bring the object in compliance with the rules. The notice period begins upon the date the space holder receives such notice. This subsection does not apply if the object presents a reasonable current, immediate, and significant risk to the public’s health or safety or the notice is returned as undeliverable; and
(2) any removal of an object must from a lot or space must be performed in a caring and considerate manner and in the least intrusive way possible. Any and all damage or injury to the lot and space resulting from such removal must be immediately and completely repaired.
Under Subsection (E) of this same section, the Cemetery Administrator may grant written approval for trees, shrubs, or other live plants. However, there is nothing requiring that any refusal by the Cemetery Administrator be reasonable. Further, considering issues regardingincreasingly hot summers, continuing drought conditions, and watering restrictions, it would be in PARD’s and the public’s best interest for PARD to actively encourage the planting of native or adapted drought-resistant plantings. Ms. Huckabee is a master gardener who specializes in native and xeriscape plants. In 2006, with the implicit permission of PARD, she planted a memorial garden on her daughter’s grave incorporating a number of native or nativized plants, including oxblood lilies and purple coneflowers. These plants have continued to thrive and bloom, adding color and greenery even during the summer when, because of drought and watering restrictions, the surrounding grounds were dead, brown, or bare. I have planted a garden on my parents’ graves using plants recommended by Ms. Huckabee, which included hardy and drought-resistant Engelmann's daisies with bright yellow blooms and beautiful evergreen leaves, pink and purple skullcaps, and a blue twist leaf yucca. Not only did these plants remain green all summer, the daises and skullcaps have brightened the area with their flowers. The plants were specifically selected to be compact and will not spread or grow outside of the boundaries of the graves. Encouraging the public to become involved in beautifying the cemeteries with such hardy and attractive plants will greatly improve the cemeteries’ appearance and appeal, limit the need for water-hungry grass, and cut back on the need for regular mowing and other maintenance. Therefore, I recommend adding the following sentences to Subsection (E):
Such approval shall not be unreasonably withheld. The Cemetery Administrator shall encourage the planting of trees, shrubs, and live plants that are drought- and freeze- resistant, native or adapted, low- or no-maintenance, and that do not spread through a rhizome or root system.
Under Subsection (F), the Cemetery Administrator may remove any tree, shrub, or other plant in a cemetery that is dead, deteriorated, interferes with mowing or other cemetery maintenance, or was planted in violation of the rules. Again, this gives the Cemetery Administrator unlimited power and discretion. I recommend the following sentence be added to Subsection (F):
Any removal of a tree, shrub, or other plant within a space or grave site, other than a plant that is dead, must be in compliance with (A) of this Section.
Necessary Rule Revisions:
14.4.2-Applicability
These rules apply to, and in, all cemeteries managed by the Parks and Recreation Department. These rules and regulation take effect upon the date of adoption and are solely prospective. All existing uses of and modifications to lots, spaces, memorials, and memorial spaces by space holders are expressly grandfathered, except as otherwise provided herein.
14.4.7-Instructions for Space Holders and Space Holder’s Rights
....
(F) The City of Austin has implemented the Perpetual Care Trust Fund pursuant to Section 713.002 (Local Trust for Cemetery), Texas Health and Safety Code, to assure the perpetual maintenance of the city cemeteries. Participation in the trust fund is wholly voluntary. A person may submit an application to act as trustee and pay a deposit into the trust fund. The deposit is invested in interest-bearing bonds or governmental securities and the interest, revenue, or other accrual or increase in the funds deposited for a specific cemetery lot, grave, or burial space must be used to maintain that specific lot, grave, or burial space. Any revenue in excess of the amount necessary to accomplish the trust for a specific lot, grave, or space may then be applied to beautify the cemetery where the lot, grave, or space is located. For more information, contact the Cemetery Administrator or the City Clerk.
14.4.12-Ornamentation and Decoration
(A) The Cemetery Administrator may remove any object in a cemetery that is not specifically permitted under these rules or that the Cemetery Administrator determines to present a current or foreseeable threat to the public’s health or safety if:
(1) the Cemetery Administrator gives no less than sixty (60) days written notice to the space holder, sent certified mail, return receipt requested, to the space holder’s last known address. Such notice shall set out in detail why said object is not specifically permitted under these rules and provide the space holder the option to remove the object or to bring the object in compliance with the rules. The notice period begins upon the date the space holder receives such notice. This subsection does not apply if the object presents a reasonable current, immediate, and significant risk to the public’s health or safety or the notice is returned as undeliverable; and
(2) any removal of an object must from a lot or space must be performed in a caring and considerate manner and in the least intrusive way possible. Any and all damage or injury to the lot and space resulting from such removal must be immediately and completely repaired.
....
(E) Trees, shrubs, or other live plants are permitted with the written approval of the Cemetery Administrator. Such approval shall not be unreasonably withheld. The Cemetery Administrator shall encourage the planting of trees, shrubs, and live plants that are drought- and freeze- resistant, native or adapted, low- or no-maintenance, and that do not spread through a rhizome or root systems.
(F) The Cemetery Administrator may remove any tree, shrub, or other plant in a cemetery that is dead, deteriorated, interferes with mowing or other cemetery maintenance, or was planted in violation of these rules. Any removal of a tree, shrub, or other plant within a space or grave site, other than a plant that is dead, must be in compliance with (A) of this Section.
....
14.4.15-Notice and Publication of Rules
The Parks and Recreation Department shall ensure that rules, and any proposed or adopted revisions or changes, are published and readily available to the public, including, but not limited to, prominently posting these rules on its website and making copies of the rules available at all cemeteries under its management. Further, the Parks and Recreation Department must provide a written copy of the rules to any and all persons who inquire about purchasing or who purchase a lot or space within any cemetery managed by the Parks and Recreation Department.
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