HomeMy WebLinkAboutIslamic Cemetery Memo DRAFT 2024-06-25.docx
C ITY OF T WIN F ALLS
P.O. Box 1907
Twin Falls, Idaho 83303
B RUCE C ASTLETON – C ITY A TTORNEY Telephone: (208) 735-7374
N ICOLE S WAFFORD – D EPUTY C ITY P ROSECUTOR Facsimile: (208) 735-3147
L INDA W ELLS—D EPUTY C ITY P ROSECUTOR E-mail: cityprosecutor@tfid.org
J OLEEN C RYSTAL—D EPUTY C ITY P ROSECUTOR
R ACHAEL H UNSAKER – L EGAL A SST.
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MEMORANDUM TO: A.C. Stowe, Staff Engineer
FROM: Bruce Castleton, City Attorney
RE: Islamic Cemetery
DATE: June 25, 2024
This memorandum addresses the letter dated April 8, 2024 from attorney Brian Hilverda on behalf of the
Islamic Center of Twin Falls regarding that organization’s intent to create a private Islamic burial ground
on land located at 2345 Orchard Drive E. in Twin Falls. Mr. Hilverda’s letter is written pursuant to Twin
Falls City Code Section 10-12-5-7(B), (CEMETERY SUBDIVISION, Compliance with Idaho Code),
which requires the cemetery developer to “submit a written statement that has been prepared by an attorney
that adequately assures the compliance of the proposed cemetery with the procedural management
requirements that are outlined in title 27, Idaho Code.”
Mr. Hilverda’s letter does in fact address the various requirements for cemeteries in Title 27 of Idaho
Code. I do not disagree with Mr. Hilverda’s reading of the first three chapters of this title, in that they are
not applicable to the proposed Islamic burial ground. I also believe that the assurances provided by Mr.
Hilverda on behalf of the Islamic cemetery regarding the requirements set forth in Title 27, Chapter 5 are
adequate.
However, with respect to Title 27, Chapter 4, I do not agree with Mr. Hilverda’s position that the Islamic
cemetery would not need to establish a trust under Idaho Code Section 27-407. Mr. Hilverda’s position is
that because this Islamic cemetery will not sell burial lots, that there is therefore no need to establish the
trust. Although that section is entitled “Trust Fund Required Before Sale of Lots,” the language of this
section states that “no corporation hereafter organized for the operation of a perpetual or endowed care
cemetery … shall advertise or sell lots in said cemetery under the representation that said cemetery … is
entitled to perpetual or endowed care until there shall have been established a trust fund to provide such
care in accordance \[with this section\].” This language makes clear that a perpetual or endowed care
cemetery can not only not sell lots without such a trust, but they also cannot advertise such lots either.
This language regarding advertising such lots (even if no money is exchanged for them) is also found in
Idaho Code Section 27-401, which makes clear that this Chapter 4 of Title 27 applies to “advertising
and/or selling” of endowment care or perpetual care cemetery lots.
The purpose of the regulations in Title 27, Chapter 4—including the establishment of a trust—is to ensure
that services provided by cemeteries that are established as endowment care or perpetual care continue in
perpetuity through sound business practices that are essential to this continued service. Mr. Hilverda’s
letter makes clear that this Islamic cemetery falls under the definition of endowment care and/or perpetual
care. His letter offers assurances that the cemetery will meet the requirements of Title 27, Chapter 4 with
the exception of creating the trust required by that Chapter. But where this cemetery will be advertising
burial lots that will be maintained as part of an endowed or perpetual care cemetery, I believe the cemetery
will need to meet all of the requirements of Title 27, Chapter 4, including the creation of a trust under I.C.
§ 27-407. Though I recognize that without the sale of lots this trust will not increase in principal value
through these sales, the Islamic cemetery will need to otherwise ensure that the trust amount stays adequate
to meet its obligations of providing perpetual care of the cemetery as required by statute.
As such, I believe that in order for the Islamic cemetery subdivision to be approved by the City it will
need to comply with all aspects of Title 27, Chapter 4 of the Idaho Code, including the establishment of a
trust required by I.C. § 27-407.
Additionally, it is my understanding that the Islamic Center of Twin Falls has not actually submitted an
application for this cemetery subdivision. Without such an application the City cannot give formal
consideration of this cemetery or approve it whether or not there is compliance with Idaho Code
provisions. This cemetery application will need to be submitted as a cemetery subdivision and a revised
letter by legal counsel submitted giving assurances that the cemetery will comply with all applicable Idaho
Code provisions as set forth above.
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