Is Dividing and Selling Forestview Cemetery Land a Simple Act?
Someone posted on the Internet: “The Warrant Article is on the ballot as well as a budget item from the selectmen to make funds available to purchase 8 - 10 acres. Its (sic) a simple formula; if 50% of the voters plus 1 more person vote yes on these the fields will be saved.”………….And another quote, also posted: “Article; 26 authorizes the town to allocate $180,000 to buy 8 - 10 acres of land at Cemetery Fields. Article 40 will give them the authority to do it.” Anyone who thinks that the land can be sold simply, ASAP, can contact the Attorney General’s Office and ask Terry Knowles, the Assistant Director of Charitable Trusts. It is not simple; it is quite a lengthy process with many legal hurdles and possible litigations for which taxpayers may foot the bill, well beyond any $180K appropriation.
What Would Happen IF Articles 26 And 40 Passed?
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The law states that the current Cemetery Trustees stay on for 90 days, after the 3/11/14 election, until June 9, 2014. Then, on June 10, the New Selectmen-Cemetery Trustees could begin a discussion with the Trustees of Trust Funds regarding the initiation of a petition to the Probate Court regarding the potential sale of the cemetery land. If the New Selectmen-Cemetery Trustees and Trustees of Trust Funds agree to recommend the division and sale of any part of the property, the procedure that must be followed is listed below.
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Funding will be needed for this process including the cost of engineering studies, surveying the entire parcel, obtaining a fair market appraisal of the property, and for legal fees. These expenses are borne by the taxpayers of the Town of Amherst.
The $180K appropriation in Article 26 can only be used “for the purpose of purchasing a portion of the land located on the 47.85 acre parcel that includes land known as Cemetery Fields.” It cannot be used for land sale-expenses or legal bills, e.g. legal fees at the AG and Probate level, and the possibility of additional legal fees for any lawsuits, (see below.)
THE PROCESS: IN CHRONOLOGICAL ORDER, IF WARRANT ARTICLES 26 AND 40 PASS
1. A MEETING: The Selectmen/Cemetery Trustees and the Trustees of Trust Funds would meet to discuss whether or not to recommend a petition be filed with the probate court regarding the sale of any or all of the cemetery property. If the vote is in the affirmative, the following steps must be taken before the petition can be filed.
2. SURVEYOR & EXPENSES: The New Selectmen-Cemetery Trustees would have to ask the Town to fund the cost of hiring a surveyor for purposes of preparing a survey of the entire property.
3. INFORMATION: The Selectmen/Cemetery Trustees and Trustees of Trust Funds may want to have a subdivision survey prepared as well, however, it is important to keep in mind the Attorney General is a necessary party to any petition filed with the court and that office may object to the petition in its entirety and/or object to any subdivision of the property.
4. FAIR MARKET APPRAISAL: The next step is to engage the services of an independent appraiser for purposes of obtaining a fair market appraisal of the property.
5. STUDIES AND EXPENSES: Next, the New Selectmen-Cemetery Trustees may need to obtain the items listed below. Again, the expense for these items would be the Town’s, as Cemetery Trust Funds may only be used for Cemetery Maintenance, Cemetery Expansion or Cemetery Capital Improvements…not for services to make the land saleable. Again, the 180K appropriation can only be used “for the purpose of purchasing a portion of the land located on the 47.85 acre Parcel that includes land known as Cemetery Fields.” …not for land sale-prep service bills.
A. An engineering study of the property to determine whether or not the land to be excluded from the playing fields parcel is appropriate for the burial of human remains. The Judge of Probate and the Attorney General will insist on this information before making any decision.
B. Grasshopper Sparrow Management issues/inspections by NH Fish and Game Department.
6. CY PRES PETITION AND EXPENSES: Next, the New Selectmen-Cemetery Trustees and the Trustees of Trust Funds, after obtaining and reviewing these appraisals, studies and issues, may ask their attorney to draft a Petition for Cy Pres, using the information obtained in above to present to the AG and the NH Circuit Court, Probate Division. This Petition would ask the AG and the Court, to allow the dividing of this land originally purchased through an order of the court with cemetery trust funds and to subsequently permit the Town of Amherst to buy the subdivided parcel at fair market value. The proceeds from the sale of the property would then be held in the custody of the Trustees of Trust Funds and used solely for cemetery purposes.
CY PRES: Under the Doctrine of Cy Pres, the petitioners must prove to the Court and to the Attorney General that it is impossible or impractical to use the land for cemetery purposes and “In reaching such a decision the trustees, consistent with their fiduciary duties, would need to determine and show that the property to be sold is not needed for cemetery purposes now or in the future, and that the remaining property is sufficient/appropriate for cemetery purposes/needs, or that they would purchase other land sufficient for cemetery purposes. In short, they would need to determine that such a sale was in the best interest of the cemetery trust. Furthermore, trustees would need to realize a fair market return on such a sale and maximize the value of their charitable asset.” (AG Anthony Blenkinsop, May 17, 2013)
7. TRUSTEES OF TRUST FUND APPROVAL: “…because the Trustees of the Trust Fund were parties on both the first Cy Pres petition in the 1980s and then also on the subsequent petition to purchase the Forestview Cemetery land so they are a necessary party to any litigation involving Cemetery Fields.” (Terry Knowles, AG’s office January 14, 2014)
8. FILING Next, the New Selectmen-Cemetery Trustees and their attorney will file the Cy-Pres Petition with the AG and the NH Circuit Court; Probate Division The AG’s Office will review the petition and then render its opinion on the petition to the Circuit Court, Probate Division, where the case will be heard.
9. PRESENTING THE CASE: The petition will be the subject of hearings before the probate court and it is possible other individuals, including abutters, may file motions to intervene in the case. The Grasset/Merrill parties in the lawsuit may file a court objection, which could slow down the process to months or years. If that is the case the Superior Court 1999 Settlement remains in force for the September 1, 2014 return of Cemetery Fields to its original purpose as a Cemetery, with the cessation of playing field use, and removal of all existing equipment. That decision was reached in a Court Settlement, between the Selectmen acting as the Town of Amherst, and the Grasset/Merrill parties who brought the suit. (The Selectmen have never gone back to court to appeal this, because THEY agreed to the Court Settlement.) Given the backlog in the New Hampshire court system it is possible the matter will not be scheduled for trial for months.
10. DECISION: IF there are no obstacles/litigation, and IF Court grants the Petition, and the Trustees of Trust Funds and New Selectmen-Cemetery Trustees receive Court approval, the Attorney General’s office and Probate Court would officially observe and manage the subdivision and sale, to make sure that the New Selectmen-Cemetery Trustees and the Trustees of Trust Funds are fulfilling their duties with regard to their fiduciary responsibilities as Trustees.
11. FUNDING: If the Court approves the sale the citizens of Amherst will need to appropriate the money to purchase the court approved land sale, at Fair Market Value since this amount may well be more than the $180,000.00 proffered in Article 26.
12. OUTCOMES: If Article 26 passes, but Article 40 does not, the $180,000 will be returned to the town’s General Fund, because the current Cemetery Trustees will remain in place, and they have voted to abide by the May 2, 1999 Superior Court Settlement between the Grasset/Merrill Party and the Town of Amherst….which states: “All recreational activities at Cemetery Fields shall terminate not later than September 1, 2014 and the premises shall thereafter be used for cemetery purposes.”
If Article 40 passes, it means the town will have new Selectmen-Cemetery Trustees, who may take the taxpayers into the long and very possibly expensive, litigious process, as outlined above, with additional unknown future costs to the taxpayers, over months and likely years.
Peter Bergin, Bill Belvin, Marie Grella, Cemetery Trustees
