City manager: Census undercounting allows new cemetery in Peñitas

PEÑITAS — A perceived discrepancy in the number of people living here is allowing the construction of a cemetery where it would otherwise be prohibited.

A cemetery is being built behind Lord and I Funeral Home off Highway 83 in Peñitas, seemingly in violation of state law prohibiting cemeteries located in or within a mile of a city with a population between 5,000 and 25,000 residents.

But while the city’s current population is believed to exceed 7,000 residents, the 2010 U.S. Census has the population at less than 5,000.

“The problem is, at the last 10-year census the city came in at 4,400 (residents),” said Omar Romero, Peñitas city manager. “However, because of lack of response to the census and the annexations not taking place, we don’t fall, by state law, in that area to where we can have control over where the cemetery’s being built.”

Romero was referring to the recent annexations the city approved late last year, adding that Peñitas’ planning ordinance only applies to residential properties.

“If a property is going to be used for commercial purposes, the plat just has to be turned in and approved at the county level,” he said. “So (Lord and I) did not have to, in any way shape or form, get any kind of permission from the city.”

Last week city officials met with concerned residents to address the issue.

Romero said residents wanted the city to file a lawsuit against the funeral home on their behalf but he believes it to be a losing battle.

“Unfortunately, because the state has already issued them a license and the next 10-year census is two years away, any kind of legal action brought on by the city would probably not be in the city’s favor,” Romero said. “At this time I cannot justify using taxpayer funds to pay for a legal battle that, one, I know we will probably not win and, two, I cannot justify the use of funds that would only benefit a handful of residents and not the city as an entirety.”

Joe M. Flores, commissioner for Precinct 3, where Peñitas is located, was also at the meeting and agreed that because the population was recorded as less than 5,000, owners of the funeral home did not have to go through the city.

“Now, of course, with the new annex and the new population, (in) 2020 it will probably be around 7,500-8,000 people,” Flores said. “But this guy did it before the 2020 Census.”

However, one potential disadvantage of having a cemetery near residences is the possible decrease in property value.

“Their property is probably going to depreciate in value because it’s right next to the cemetery,” Flores said, “but we told them that between the city and the county and the state they could go to the appraisal district and fight it, appeal it.”

That is among the complaints John David Santos, president of Lord and I Funeral Homes, heard from residents once construction got underway.

Residents asked if he could move it, Santos said, and were concerned about possible flooding, which he said would not be an issue.

“I hired an engineering firm to check all that for me and each and every grave has an outer burial container,” he said. “So the deceased is going to stay in place.”

He added that he would be putting up a large fence along the backyards that are facing the cemetery and said there would be an easement of about 130 to 150 feet.

That area, he said, won’t have any burials because electrical lines run through there.

“So I can use that as a green area or parking if I want, but I’m not going to be burying anyone there,” he said. “So really, truly they’re not going to have anybody buried right in their backyard, it’s going to be about 150 feet away.”

Santos said his company has four funeral homes in the Rio Grande Valley and insisted he wouldn’t tarnish his reputation by building something illegally that would make him vulnerable to lawsuits.

“We’re just a mom-and-pop operation that is trying to grow and make a living but everything is legitimate,” he said. “I just didn’t think it was going to be such a ruckus.”