'The Austin Chronicle," in a October 14, 2022, article entitled, "After 44 Years, Contentious Gravesite Decoration Rules May Change; Will new cemetery rules stick?," reported on the current cemetery rules controversy. While the article actually contains a little more in-depth reporting than the previous articles from KXAN and KEYE, it still misses much of the core of the true story.
The article, unlike the KXAN and KEYE, does reference the 2013 City Council resolution "directing a community engagement process." However, the article makes it sound as if PARD complied with the resolution, stating that it "culminated in a report in 2015, public meetings throughout 2016 and '17, and new draft rules in 2018, which were subsequently withdrawn by City Manager Spencer Cronk as the division turned all its focus to Oakwood." The fact is that for NINE years PARD has never tried to comply in good faith with the resolution, consistently failing to actually engage stakeholders and the public and ignoring public input.
As to the claim that draft rules posted in 2018 were subsequently withdrawn by City Manager Spencer Cronk as the division turned all its focus to Oakwood, I assume the article is talking about Rule R161:18.08, posted at the City Clerk’s Office on August 2, 2018, announcing the final adoption of “Rules for Cemeteries Owned and Operated by the City of Austin” by the Director of PARD. On August 13, 2018, a group of stakeholders meet with Kimberly NcNeeley, the acting director of PARD, and Anthony Segura, assistant director, regarding the posted rules and regulations, at Russell’s Bakery and Coffee Bar at 3339 Hancock Drive. During the meeting, stakeholders expressed anger and disappointment that their comments were clearly not seriously considered and not one of their recommendations was adopted. McNeeley and Segura responded that the incorrect version of the rules was adopted and posted. They asserted that they had forwarded revisions to the Legal Department but due to a communication error these revisions were not incorporated in what was intended to be the final version of the rules. McNeeley and Segura stated that while they would investigate how to withdraw the rules, they recommended that the stakeholders file appeals regarding the adoption of the rules with the City Clerk’s Office. After discussion, McNeeley agreed that the rules and regulations process had been seriously flawed and failed to involve the stakeholders and the public and stated that she will reopen the process with more public involvement and input. On August 31, 2018, following numerous appeals filed by citizens, Rule No. R161-18.08 was withdrawn. This is the first time I have ever heard of the story that the rules were withdrawn so that PARD "turned all its focus to Oakwood." This does not even make sense, as it implies that PARD is incapable of doing two things at once. Even though I have been involved in this issue since 2013, this is the first time I have heard this Oakwood version, but it sounds like a face-saving equivocation by PARD to me.
The article states that due to the pandemic "and other challenges," PARD has just now reinstated the rules process. However, this ignores the fact that PARD has been dragging out this process for NINE years. There was no pandemic in 2013, 2014, 2015, 2016, 2017, 2018, or 2019. The articles does not question PARD regarding these "other challenges" that supposably excuse NINE years of bureaucratic equivocations. The article goes on to note: that the draft rules were posted for public comment on September 7, 2022, to October 11, 2022; that PARD held its "first and only virtual community meeting" on October 10, 2022; and no in-person meeting has yet been planned, but never questions whether this is even sufficient for public notice and input.
The article states that Austin hasn't updated its rules regarding grave decoration in the five city cemeteries since 1978. Frankly, not only have the 1978 rules not been updated, they were never posted or publicized, and in the intervening years PARD gave families implicit and explicit permission to create gravesite gardens and memorials. Because of PARD's lack of enforcement, these rules are effectively waived, null, and void. According to the article, PARD has tried several times to update the rules, "but it's an emotional and contentious issue where people don't see eye to eye." It is an emotional and contentious issue only because of PARD's failure to enforce the rules and regulations for over three decades and that during this period it has implicitly and expressly authorized stakeholders to create memorials and gardens on gravesites. PARD is effectively breaking its word to families who relied on PARD's actions for over 30 years. The article also states that "in the interim, there's been inconsistent enforcement of existing rules, but many mourners have found their planted flowers torn out and their photos, handwritten notes, and other objects honoring the dead thrown out, as the Parks and Recreation Department tries to keep up with maintenance needs at the graveyards, which are all historic sites that also have preservation needs." First, the existing rules are null and void. PARD is acting capriciously and arbitrarily, without authority, and destroying gravesite memorials it once permitted, often ripping out gardens and decorations without even bothering to try to contact families. In fact, in the past (and in the article itself) PARD has admitted that its record keeping is so poor, it would not be able to even contact families if it wanted to. As for maintenance, for over three decades the gravesite gardens and memorials have apparently not been an issue; it was only after PARD took over in 2013 from its contractor and decided that it wants to simply run its heavy mowers over gravesites. Further, the way PARD discusses the gravesite memorials and gardens, one would think that the city cemeteries are otherwise maintained in pristine condition, when in fact they are suffering from years of neglect and poor maintenance. PARD always claims that it lacks the funds to properly maintain the cemeteries, yet it apparently feels it can waste time and resources persecuting families who relied on PARD's word for over three decades. This issue has nothing to do with maintenance, but instead PARD's desire to do everything as cheaply as possible with the least amount of effort.
The article states that PARD "has dealt with many issues in its attempts to improve conditions and programs at the cemeteries, which PARD had farmed out to a third-party contractor for years before retaking direct control in 2015." Actually PARD took over in April of 2013. It goes on to say that, "the main challenge to updating cemetery rules is the tension between families' plans for their loved ones' gravesites and PARD's ability to do routine maintenance like mowing." PARD has long argued that the memorial gardens interfere with mowing, ignoring that fact that many of the gardens have been in place for decades and mowing does not appear to have been an issue until PARD took over "care" of the cemeteries in 2013. Prior to that, PARD's contractor, Intercare, appears to have had no issues regarding mowing or memorial gardens. PARD personnel have told stakeholders that they need to be able to drive through the cemetery on large riding lawnmowers. In reality there is nothing to mow, especially due to droughts and watering limits, and even when there is rain, most of the greenery is weeds, with large existing bald areas. The soil is thin, eroding, cracked, and compacted, and the use of large heavy mowing equipment will only further erode and destroy what little top soil remains. Extensive use of heavy maintenance equipment results in deep ruts cutting over graves; my sister-in-law planted a memorial garden on her daughter’s grave in 2006 because of tire tracks and ruts left by maintenance equipment and the problem is continuing; this is a picture I took in March of 2022 showing tire tracks from PARD's equipment cutting deep ruts over a grave.
Ironically, the 2015 City of Austin Historic Cemeteries Plan, which cost taxpayers $236,910.53, expressly recommends for Austin Memorial Park that PARD encourage the establishment of groundcovers within curbed or walled family plots to reduce the amount of mowing and trimming required and that PARD avoid using riding mowers and metal core trimmers within twelve inches of markers and plot enclosures. So PARD's rules are actually in contravention of its own costly Master Plan.
The article notes that public outcry in 2013 that prompted the Council resolution centered on the threat of decoration removal, but fails to note that the resolution required the City Manager, in collaboration with stakeholders and a working group of the Parks and Recreation Board, to evaluate whether current cemetery policies related to grave ornamentation were appropriately sensitive to personal and cultural expressions of grieving, while preserving necessary safety for cemetery workers and respect for the values of all families; this process was to be completed over six months. PARD for NINE years has utterly ignored and willfully failed to comply in any way with this resolution. The article states that under the rules, all ornamentation is prohibited except unplanted or plastic flowers, commemorative stones, flags no more than 18 inches in length, and items made of cloth, and that these items can only be placed directly on a memorial or to its left or right. Further, benches that do not serve as a headstone are not allowed, and trees, shrubs, and other plants may be removed immediately without notice. There is nothing regarding the fact that these rules are going to apply to gravesite gardens and memorials that have been in place for years, even decades, and in many cases these cannot be removed without desecrating or destroying the gravesite. Under the proposed rules, not only are families not required to be given notice, NOTHING UNDER THE RULES REQUIRES PARD TO REPAIR THE RESULTING DAMAGE. PARD has already shown itself to be incapable of properly and respectfully maintaining gravesites--look at the tilted and fallen gravestones, holes and cracks let by subsidence, and damage to gravesites and gravestones caused by PARD equipment throughout the cemetery system. Yet, somehow PARD is going to find the employee resources, money, and time to remove possibly hundreds of established gravesite gardens and memorials scattered through the Austin cemeteries. The article then states that "scheduled cleanups happen after Feb. 1, Aug. 1, and Nov. 1, during which ornamentation and decorations may be removed and discarded. At least 30 days in advance of these cleanups, PARD will post large signs at the entrances of all five cemeteries and send alerts via social media and email." These scheduled cleanups have to do with temporary holiday decorations, not ripping apart long-established gravesite memorials.
The article notes at the Zoom meeting, "participants cast doubt on the transparency and accessibility of the process and voiced concerns about retroactive enforcement of ornamentation that had been given previous permission." According to the article, "PARD suggested that each gravesite may require individual attention from cemetery specialists Tonja Walls-Davis or Jason Walker to ensure compliance." It quotes Walls-Davis as noting that enforcement and recordkeeping of the rules since 1978 have been shaky at best and, "Unfortunately, we don't know who has given approval [for ornamentation]; we don't have a record of that approval." There doesn't need to be any record of approval. The 1978 rules were not included in the City of Austin Code of Ordinances. This is significant because it means that these rules are not ordinances, and, lacking the authority of law, therefore can be waived by failure of the City of Austin or PARD to timely enforce them. Not only has PARD failed to enforce the rules and regulations, for over three decades it has both implicitly and expressly authorized stakeholders to create memorials and gardens on gravesites. PARD has no authority to impose new rules on existing gravesite memorials and gardens to the extent such new rules and regulations would force the entire or substantial removal of existing memorials or gardens. It is well established under law that when a city enacts a 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 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 gravesite.
It finally must be noted that the article does not interview or include the comments of any of the stakeholders or families who will be affected by these proposed rules or allows them to express their concerns.
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