Waive Goodbye

Neither the City of Austin or PARD has the legal authority to retroactively enforce current the rules or regulations or impose new rules or regulations regarding existing gravesite memorials and gardens.  On May 4, 1978, the Austin City Council enacted Resolution 780504-22, Rules and Regulations of Cemeteries Owned and Operated by the City of Austin. However, prior to September of 2013, there is no evidence or documentation that PARD either publicized these rules or ever attempted to enforce them.  My brother, Steven Weintraub, and his wife, Tina Huckabee, purchased a gravesite for their daughter Shoshana in 2006. My family has since purchased five sites, one for my father, Russel J. Weintraub, interred 2012, one for my mother, Zelda K. Weintraub, interred 2015, and sites for my brother, my sister-in-law, and myself. PARD never provided to any member of our family at any time a document or pamphlet setting out the cemetery rules and regulations.

I have made several extensive requests under the Texas Public Information Act (PIA), including any and all documents regarding the implementation and enforcement of the existing cemetery rules and regulations. This included any documentation regarding making such rules and regulations readily available to the public and to stakeholders purchasing gravesites and actions taken to enforce these rules and regulations. Not a single document I received under PIA showed that PARD had made any attempt following the enactment of the rules and regulations in 1978 to publicize these rules. There was no evidence that PARD had ever provided a single pamphlet, brochure, contract, or any other document setting forth these rules to any person purchasing a gravesite within a cemetery operated by PARD. Nor were these rules and regulations included in the City of Austin Code of Ordinances. This is 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 gravesite 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. 

Not only has PARD has effectively waived such rules and regulations and no longer has any legal right to try to retroactively enforce them, 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.

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 grave sites. My 13-year-old niece died suddenly of myocarditis on April 28, 2006, and she was interred at Austin Memorial Park (AMP). My sister-in-law subsequently noticed tire tracks on her daughter’s grave from maintenance equipment, which she found emotionally distressing and demeaning to the memory of her daughter. Huckabee is an avid gardener who specializes in native and xeriscape plants. Noticing that other graves were covered by memorial gardens, often outlined in stone or brick, she twice contacted the office at AMP to request permission to plant a memorial garden on her daughter’s grave. When she received no response, she and my brother outlined their daughter’s grave in cut limestone and planted a number of native or nativized plants, which 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. When my father was buried in 2012 we requested that AMP personnel not place sod on his grave and instead we outlined his grave with with stone. When my mother was buried in 2015 next to my father, PARD did not place any sod on her grave and instead my family extended a border of cut stone to embrace both parents. Not only do we have these personal examples of PARD implicitly permitting memorial gardens, we know of one instance in which city personnel not only expressly gave permission for a memorial garden, but actively assisted the person in measuring out the space.

We have been told by PARD personnel that this implicit and expressed permission was given by PARD’s contractor, not PARD. According to the documents I received via my PIA request, beginning October 3, 1990, PARD contracted with Intercare Corporation for the management and operation of the city cemeteries. This contract was extended multiple times, PARD finally ending its contract and assuming control and operation of the cemeteries in April of 2013. Under the contract, Intercare was granted by PARD the control and operation of the cemeteries. Intercare therefore was PARD’s authorized agent and had express, implied, and apparent authority regarding permitting gravesite memorials and gardens. PARD, through its own omissions and inaction, made no apparent attempt during the 23 years it contracted with Intercare to require that Intercare publicize and enforce the cemetery rules and regulations. It is well established under law that a principal is wholly liable for an agent’s actions if the principal ratifies, accepts, or adopts the agent’s acts, either expressly by otherwise accepting the results of said actions, including through the principal’s inaction or silence. Further, under law, a third party may rely in good faith on the representation by an authorized agent. Therefore, under well-established legal principles, Intercare was without doubt PARD’s authorized agent for the operation and maintenance of the cemeteries through 2013, site holders had every legal right to rely on Intercare’s expressed and implicit permission regarding gravesite memorials and gardens, and PARD, through its silence and inaction, ratified Intercare’s actions. PARD cannot escape the fact that for over three decades persons were allowed without interference to create gravesite gardens and memorials by trying to place the blame on its own contractually authorized agent.

According to the documents I received through the PIA request, there were no documented attempts by PARD to enforce the regulations for decades—there was not a single enforcement letter, notice, or any other document prior to September 13, 2016. The only documentation of any attempt to enforce the rules and regulations by PARD were two tables, a 2016 Violations Database and a 2017 Violations Database, running from September 13, 2016, through November 9, 2017 (documents posted below). Of the 11 alleged violations in 2016, the record showed that PARD only attempted twice to contact the site holder. Of the 46 alleged violations in 2017, PARD only contacted a single site holder. It is also relevant to note that the majority of the alleged violations are reported in clusters: two on March 20, 2017, 11 on May 3, 2017, three on May 26, 2017; five on May 30, 2017; two on June 9, 2017; two on August 8, 2017; two on September 6, 2017; two on October 25, 2017, and two on November 9, 2017. It is interesting that after 38 years suddenly PARD was apparently preoccupied with documenting alleged violations. This gives the appearance that PARD was attempting belatedly to create a paper trail to cover up its over three decades of neglect. PARD’s failure to make any attempt to enforce the rules and regulations for 38 years effectively waives such the rules and regulations and they cannot be retroactively enforced.

Further, PARD has no moral or ethical right to retroactively enforce either the current or new rules and regulations on existing gravesite memorials and gardens. Such attempts by PARD would arbitrarily punish those Austin citizens who in good faith relied upon the acts and omissions by Intercare and PARD and created gravesite memorials and gardens, many of which have been in place for years, if not decades. These gravesite 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.

I also must note, on May 10, 2018, Kimberly McNeeley, the acting director of PARD, specifically told me that there was never any intention that the rules would apply to existing graves. If she was being truthful, why has PARD consistently refused its include in any proposed rules that they are prospective only?

Throughout the Austin cemetery system there are hundreds, if not thousands, of gravesite memorials or gardens that do not comply with either the 1978 tor the current proposed rules. Will PARD 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 gravesite, leaving gapping holes, trenches, and exposed soil. How will PARD and the City of Austin respond to 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? Can PARD 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 gravesites? 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, tilted and toppled grave monuments, poor soil and turf, dead and neglected trees, and periodic flooding, it is very clear that PARD already lacks the resources to even minimally maintain the cemeteries.