Board of Selectmen
Town of Amherst
PO Box 960
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Amherst, NH 03031
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Trustees of Trust Funds
Town of Amherst
PO Box 960
Amherst, NH 03030
Cemetery Trustees
Town of Amherst
PO Box 960
Amherst, NH 03060
Re: Town of Amherst Cemetery Issues
Dear Ladies and Gentlemen:
It is our understanding there are two articles in the March, 2014 Amherst Town Warrant which relate to the property known as Cemetery Fields, Article 26 and Article 40 which follow.
ARTICLE 26: Non-Lapsing Recreation Playing Field Expansion
To see if the Town will vote to raise and appropriate the sum of one hundred eighty thousand dollars ($180,000) for the purpose of purchasing a portion of the land located on the 47.85 acre parcel that includes land known as Cemetery Fields. This will be a non-lapsing appropriation per RSA 32:7 VI and will not lapse until purchase has been made or by June 30, 2016, whichever is sooner. (Majority vote)
ARTICLE 40: (By Petition)
Shall we delegate the duties and responsibilities of the cemetery trustees to the board of selectmen?
A statement is being attributed to the Charitable Trusts Unit that it is in favor of the filing of a petition relative to the sale of all or a portion of Cemetery Fields. By this letter we want to correct this statement and to provide information which may be useful both to public officials and to the voters in this matter.
The Charitable Trusts Unit has no opinion on whether or not a petition for cy pres should be filed with the court relating to Cemetery Fields. Since there is no petition currently pending before the court, it is impossible for the Director of Charitable Trusts to take any position on this issue at the present time. Therefore, by this letter, the Director of Charitable Trusts clearly states that she will decide whether or not to take a position in the Cemetery Fields matter when and if a petition is filed with the probate court and the Director takes no position on the matter at the present time.
Article 26 requests the appropriation of $180,000 for the “purpose of purchasing a portion of the land located on the 47.85 acre parcel that includes land known as Cemetery Fields.” The Charitable Trusts Unit has no information regarding the origin of the $180,000 amount specified in this Article but would urge public officials to exercise caution if asked to explain the effect of the passage of Article 26 since an affirmative vote does not authorize the sale of the Cemetery Fields land and the $180,000 may or may not be an accurate representation of the value of the property.
If the Town of Amherst passes Article 26 and the Trustees decide to proceed with a petition to the probate court, the process will require the preparation of documentation and materials to accompany the filing with the Court. The Trustees of Trust Funds for the Town of Amherst and the Director of Charitable Trusts are the necessary parties to the petition based upon the history of Cemetery Fields which follows below.
Cemetery perpetual care funds are valid charitable trusts and must be used in a manner consistent with the purpose for which the funds were provided. The statutes provide a mechanism under the doctrine of cy pres for the probate court to direct the application of perpetual care funds for general care, capital improvements, and cemetery expansion “upon petition of a majority of the board of trustees [of trust funds].” RSA 31:22-a.
In the 1980s, the Trustees of Trust Funds in Amherst sought the court’s approval, under the doctrine of cy pres, to redirect the excess accumulated perpetual care income for general cemetery maintenance purposes. On September 11, 1990, the Hillsborough County Superior Court issued an order in a case entitled Trustees of Trust Funds, Town of Amherst vs. Attorney General, Charitable Trust Division permitting the use of the excess accumulated perpetual care income for general cemetery maintenance.
The Town of Amherst subsequently asked if it would be possible to use a portion of the perpetual care funds to purchase land for future cemetery expansion. In July of 1992, a Consent Decree was filed with the court by the Director of Charitable Trusts and the Town attorney on behalf of the Trustees of Trust Funds for the Town of Amherst authorizing the expenditure of $140,000 in excess accumulated perpetual care income for “[T]he expansion of those cemeteries to which the trusts apply by the purchase of property contiguous or non-contiguous to the existing cemeteries for the purpose of expanding the same.”
In the mid-1990s, the Charitable Trusts Unit received a complaint from an individual in Amherst alleging the Town planned to build athletic fields on the Cemetery Fields property purchased with perpetual care funds under the 1992 Consent Decree. Because the building of athletic fields on the property was not consistent with the Decree, an investigation into the matter was initiated. The situation eventually led to the institution of litigation by the Grassetts, who are abutters to the property, and a settlement through the execution of a document entitled Agreement Regarding Use of Land dated July 27, 1998. The Agreement was signed by the Amherst Cemetery Trustees and the Amherst Board of Selectmen. The terms of the Agreement are subject to oversight by the Attorney General Division of Charitable Trusts. The land will return to cemetery use on September 1, 2014.
If the Trustees of Trust Funds and the Cemetery Trustees vote to pursue the purchase of all or a portion of the Cemetery Fields land for recreational purposes, it will be necessary to engage the services of an attorney to prepare a petition, with supporting documentation and materials, for submission to the probate court. Legal fees and all costs of litigation will be the responsibility of the taxpayers of the Town of Amherst. The Attorney General, Director of Charitable Trusts, would be the defendant in this litigation.
The supporting documentation and materials may include at a minimum the following:
· A survey of the entire 47.85 acre parcel by a licensed land surveyor.
· If the Trustees’ petition seeks permission to purchase only a portion of the property, a second survey showing the proposed subdivision will be required.
· An engineering study of the property showing slopes, soils, wetlands, drainage, setbacks, etc. in order to ascertain whether the land proposed to be excluded from the playing fields parcel is appropriate for the burial of human remains.
· It is our understanding the New Hampshire Department of Fish and Game may have some concerns with a species known as the Grasshopper Sparrow found on the property and the Department should be contacted for further information.
· A fair market appraisal of the property conducted by an independent appraiser. If the court grants the Trustees’ petition the property may not be sold for less than the fair market value which may have the potential to exceed the $180,000 requested in Article 26.
Thank you for your attention in this matter and if you have any questions please do not hesitate to contact
me.
Very truly yours,
Terry M. Knowles, Assistant Director
Charitable Trusts Unit
