SACO – A New Hampshire man appears to be fighting a losing battle as he tries to protect his family’s small burial plot off U.S. 1 from being encroached upon by the popular amusement park that surrounds it.

Bob Phillips, a retired postal worker from Pembroke, N.H., said he was shocked during a recent visit to see how Funtown Splashtown USA was expanding right next to the 150-year-old cemetery that contains the graves of his grandparents and 15 other relatives.

“He’s been excavating within inches of it,” Phillips said of park owner Ken Cormier’s expansion project, which will add two seven-story water slides to the park.

A 1991 state law bars construction or excavation within 25 feet of a cemetery, but Cormier maintains that the statute allows the buffer to be measured from the nearest headstone rather than from the edge of the cemetery property.

Phillips and several state officials disagree, but an apparent legislative oversight has made it virtually impossible for Phillips to protect the fenced-in, 25-foot-square site.

Land-use laws are ordinarily written as civil statutes enforced by building inspectors. But the protection law was written as a criminal statute which law enforcement agencies have shown no apparent interest in enforcing.

“I can’t get the city to enforce it. I can’t get the state to enforce it,” Phillips said. “All I can do is stand on the sidelines.”

Assistant Attorney General Paul Gauvreau, who has researched the law, agreed that Phillips has a valid complaint. “It appears the new slide is going to directly abut the boundary of the family’s cemetery,” he said.

Saco Code Enforcement Officer Dick Lambert expressed frustration at the way the law was written. “The problem is [Cormier is] not in violation of any rules that I enforce,” he said.

Clough Tappan of the state Center for Disease Control, which is responsible for most cemetery regulations, said he believes Cormier is in clear violation of the law and Saco could have made more of an effort to negotiate a compromise.

“The town enabled Funtown to break the law,” he said.

The shortcomings in the law went unnoticed for more than a decade because there were few cases of construction projects near graveyards, Gauvreau said. But with similar conflicts surfacing in recent months in Woolwich and Freeport, he said an effort is under way to have the incoming Legislature change the law.

That might be of little help to Phillips because it may be difficult to apply any revisions retroactively.

Cormier said he redesigned his water slides to try to accommodate Phillips’ concerns, placing the foundations 26.5 feet from the nearest tombstone. Other parts of the slide may be closer, he said, but he does not consider this a violation because those parts will be suspended above ground.

“Air space is not mentioned in the law,” Cormier said.