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Lawsuit over St. Petersburg cemetery could result in 12 graves being moved

The former family owners sold it in 1985 with an agreement that a gravel path remain. New owners used that land for burials.

ST. PETERSBURG — John Barnes immediately noticed that his late wife’s burial plot was on a portion of Sunnyside Cemetery that used to be a path.

The gravel at the time, he said, was not yet fully covered by grass.

“I didn’t think anything of it,” Barnes said. “Why would I?”

Recently, the Tampa Bay Times informed him that Lillian Barnes’ plot might have to be moved.

A covenant filed with the sales deed in 1985 forbade any changes from being made to the historic look of the original portion of the 140-year-old cemetery, specifically citing that path.

The former longtime owners of Sunnyside — who wrote the covenant — have filed a lawsuit demanding current owner, Foundation Partners Group, return the path to the cemetery at 5300 19th St N. in St. Petersburg and cease any future changes to that area.

If Pinellas County’s Sixth Judicial Circuit Court rules in the former owners' favor, the Times found that 12 burials on the path’s land would have to be relocated.

Graves can be seen in the Sunnyside Cemetery, St. Petersburg, along 54th Avenue North. The cemetery was established in the late 1800s. [ SCOTT KEELER | Times ]

The parties had a mediation on Aug. 27 that “resulted in an impasse,” Benjamin Winter, the plaintiff’s attorney, said.

Via email, Orlando-based Foundation Partners said that they have “great respect for the history and sanctity of historic Sunnyside Cemetery and the legacies of the area’s pioneer families who have been laid to rest there over the past 140 years. Space at the cemetery is in extremely high demand and as we made plans to remove a small road in the pioneer section to accommodate the needs of more families ... we have tried, and continue to try, to work with this family in good faith.”

On one hand, Barnes asked, why didn’t Foundation Partners Group tell him about the lawsuit? It was filed on June 28, 2019, and his wife died in August of that year.

On the other hand, Barnes wondered, why do the former owners care so much about a path?

“I’m sorry these families were misled,” said Mark Taber, whose family operated the cemetery from 1904 through 1985. They sold it to Anderson-McQueen Funeral Home, who in 2017 sold it to Foundation Partners. Taber is one of the plaintiffs in the suit.

The current owners “knew they should not bury anyone there,” Taber, 69, said. “We told them. And they ignored us. So, we filed the suit. We just want the cemetery to look like it is supposed to look.”

Even though they did not directly sell to Foundation Partners, the company is bound by the covenant filed with the 1985 deed, Layne Cady, 67 and another member of the family, said.

“I drafted our wishes and had it codified,” Cady said. “That agreement attaches to the deed in perpetuity.”

According to the 1985 covenant, “The existing cemetery shall be maintained in its present aesthetic condition with regard to its pioneer appearance.”

The gravel driveway could not be removed or replaced with concrete, it continued, existing markers cannot be moved or replaced, above ground interments are forbidden, and the vehicular entrances must remain.

The entrances were closed by Foundation Partners when they covered the path.

After purchasing Sunnyside in 1985, Anderson-McQueen expanded the cemetery by buying the neighboring lot to the west.

They carved vehicular paths through that new section, but abided by the agreement to not change the original portion, Robyn Carver, 76 and another of the former family owners, said.

“They did what was right,” Carver said. “Why can’t these owners?”

Robyn Carver, 76, St. Petersburg, great granddaughter of John J. O'Berry, former owner of the Sunnyside Cemetery, St. Petersburg, talks about the removal of a road that gave access to grave sites. The current owner of the land had the road removed. [ SCOTT KEELER | Times ]

The gravel path with two outlets onto 19th Street N was for more than historic aesthetics, Taber said.

His great grandfather, St. Petersburg pioneer John O’Berry, created it to provide easy access to the graves. There is now no such path through the original section.

Family member Bill O’Berry, 81, said he is among those impacted by the lack of a path. He uses a walker and now finds it difficult to visit the more than 30 family graves there.

The family provided letters from two others who are upset that the path was removed.

“I can no longer visit the grave site of my husband,” Marjorie West, 98, wrote. “This is due to the removal of the road.”

“My father is buried there,” wrote Linda K. Green, who did not include her age. “I cannot drive my mother to the grave site as I once could to visit my dad’s grave because the ground is uneven for an infirm person.”

The Times could not reach West or Green.

The grave marker of John J. O'Berry can be seen in the Sunnyside Cemetery, St. Petersburg, Tuesday, September 8, 2020. O'Berry was the former owner of the cemetery. [ SCOTT KEELER | Times ]

Established in the late 1800s by Nathaniel Ellis, the burial ground was initially named the Ellis Graveyard and was only for his family.

John O’Berry purchased the cemetery in 1904. He renamed it and opened it to the community.

His daughter-in-law Jessie O’Berry later took it over.

She agreed to sell Sunnyside in 1985, the family said, because it was becoming difficult to manage. They added the covenant to the deal to ensure its historic look endured.

The Barnes' son Chris Barnes said he has no issue with Lillian’s grave being moved.

“This is unusual and unfortunate," he said. "But my mother is beyond harm. I love my mother and she left behind a lot of people who adore her, but I don’t think moving her will negatively impact those people.”

A grassy area in Sunnyside Cemetery, center, to the right of the power pole. This area was a former road that gave access to graves according to Mark Taber, 69, St. Petersburg, the great grandson of the cemetery's former owner, John J. O'Berry. The road was eliminated by the current owner. [ SCOTT KEELER | Times ]