(A) Preamble. Burial sites, human remains, and funerary objects are significant cultural resources and should be treated with dignity and respect in all circumstances. Disturbing or disinterring burial sites, human remains, or funerary objects, when not requested by descendants, associated indigenous people, or required by applicable law or regulation, should not be pursued unless there are no other alternatives available, and only after consultation with descendants or other legally authorized individuals or groups and fully considered avoidance of impact and preservation in place. The burial sites, human remains, and funerary objects of certain groups of people, including but not limited to indigenous people and enslaved persons and their descendants, have a higher probability of being unmarked and undocumented and are thus more likely to be affected by development activity.
(B) Applicability. This section applies to all preliminary plans, site plans, plats, concept plans, sketch plans, and grading permits for properties that have a cemetery on the site.
(C) Cemetery identification. The location and boundary of an onsite cemetery must be determined by one of the following methods, in consultation with the Division:
(1) A survey using professionally acceptable methods and techniques performed by a professional, including archival research, professional archaeology, geophysical survey methods, and/or other nondestructive approved techniques;
(2) Observations in the field including visible gravestones or markers, a pattern of depressions indicative of graves, or associated fence boundaries; or
(3) Reference to a modern map or plat or evidence found on historic maps or documents.
(D) Preservation. A property owner/developer must preserve an onsite cemetery by meeting the following requirements:
(1) Grading, construction, or subsurface disturbance within 25 feet of the known cemetery boundary is prohibited; however, if a developer professionally surveys the cemetery as described in subsection (C)(1) above, the boundary of no disturbance may be decreased to 15 feet from the surveyed cemetery boundary;
(2) Appropriate measures must be taken to protect the cemetery during construction, such as a field-delineated limit of disturbance zone, orange blaze safety fencing, or other appropriate physical markings.
(E) Reinterment. If a property owner/developer disinters and reinters human remains at a burial site or sites, they must follow reinterment law outlined in the Criminal Law Article of the Maryland Code, specifically, Title 10: Crimes Against Public Health, Conduct, and Sensibilities, Subtitle 4: Crimes Relating to Human Remains, Md. Code Ann., Criminal Law Article, § 10-402(d-f) and, if applicable, consult with the Maryland Historical Trust as outlined in Md. Code Ann., Real Property Article, § 14-121.1. Proper treatment of burial site in existence for more than 50 years.
(F) Discovery. If any person discovers the existence of previously unknown human remains, grave markers, funerary objects, or other evidence of a cemetery which reasonably indicates the presence of a cemetery in the course of grading, construction, or work of any kind, that person must stop work immediately in the discovery area and must give notice of the discovery within 24 hours to the State's Attorney, the Division and, if applicable, consult with the Maryland Historical Trust as outlined in Md. Code Ann., Real Property Article, § 14-121.1. Proper treatment of burial site in existence for more than 50 years. All permits issued relating to the discovery area will be suspended and the property owner/developer must stop all work in the discovery area until a determination is made pursuant to subsection (C) above. If reasonably identifiable, the property owner will notify the nearest descendent of the discovery.
(1) Determination. The Division will determine, in consultation with the State's Attorney Office, if the discovery area is a cemetery. In making this determination, the Division may require the property owner to comply with the cemetery identification portions of subsection (C) above. If the Division determines that the area is not a cemetery, the stop-work order will be lifted, and the suspended permits released by the Division.
(2) Cemetery protection. If it is determined that the discovery area is a cemetery, the property owner must comply with the requirements of cemetery preservation listed in subsection (C) of this section and any requirements from the State's Attorney Office.
(G) Subdivision and site development plan review.
(1) Inventory of cemetery elements and cemetery narrative descriptions. An inventory of existing cemetery elements (such as walls, gates, landscape features, and grave markers, including a record of their inscriptions) and their condition must be submitted as part of any preliminary plan or site development plan application. All plan submissions are required to provide a narrative description and map identifying the location of cemeteries and known historic and archaeological resources on the site.
(2) Establish a permanent fence. When a proposed preliminary plan or site plan includes a known cemetery within the site, the applicant must provide and maintain an appropriate fence or wall constructed of stone, brick, metal, or wood to delineate the cemetery boundaries. The design of the proposed enclosure and a construction schedule must be approved by the Planning Commission, or its designee, prior to the issuance of any permit. The Division may waive this requirement on a case-by-case basis.
(3) Right-of-way. A 15-foot right-of-way from the nearest public or private road will be required to maintain family or person of interest access to the cemetery.
(4) Non-buildable and open space lots. Property owners or developers must accommodate the cemetery within a major subdivision by: i) placing the cemetery in a non-buildable lot with a cemetery designation; ii) dedicating the cemetery to a homeowner's association or a preservation, conservation, or religious organization; iii) providing that the cemetery remains as a cemetery in perpetuity; and iv) providing individuals related by blood or marriage or a person of interest access to the cemetery. Any land placed in a non-buildable cemetery lot designation pursuant to this section may be counted towards open space requirements. Alternatively, a property owner or developer may transfer the cemetery to the private ownership and care of a family member or descendant group.
(H) Grading permit review. All grading permit submissions are required to provide a narrative description and map identifying the location of known cemeteries, the distance from the grading activity to the known cemetery boundary, and known historic and archaeological resources on the site.
(I) Plat review. All submitted plats must include the known boundaries of all known cemeteries within the plat.
(Bill No. 24-01, 4-16-2024)