2021 | Courts

UPDATED: Judge grants preliminary injunction in case of Black cemetery in Bethesda

Planned sale of Westwood Tower Apartments is on hold

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This story was updated at 11:10 a.m. Oct. 26, 2021, to add a comment from HOC Commissioner Roy Priest.

A Montgomery County Circuit Court judge on Monday granted a preliminary injunction against the sale of the Westwood Tower Apartments to a Bethesda-based investment management company while a coalition sues to preserve a former Black cemetery.

The Bethesda African Cemetery Coalition, which sued to halt the sale, says there is evidence that graves from a former Black cemetery are still buried underneath the Westwood parking lot.

The Housing Opportunities Commission of Montgomery County (HOC) approved a letter of intent for the $51 million sale of the Westwood Tower Apartments to Charger Ventures LLC in July, with the expectation that the sale would close at the beginning of September.

The coalition sued the HOC a month later, arguing that it didn’t follow a state law that requires anyone selling a cemetery property for another purpose to first obtain a court judgment.

In an emergency hearing, Circuit Court Judge Karla Smith granted a temporary restraining order to the plaintiffs in the suit on Sept. 1, blocking the sale indefinitely. A temporary restraining order has a similar effect as a preliminary injunction, and is usually seen as a more immediate emergency measure.

Cemetery coalition members, as well as attorneys for the HOC and Charger Ventures, spoke during an 11-hour hearing in Circuit Court last month, after which Smith said she would issue an opinion in writing.

The Moses Macedonia African Cemetery was paved over in the 1960s during the construction of the apartments to create the parking lot and driveways. However, members of the church and descendants of those buried in the cemetery have argued for five years that there are graves still buried there.

Church members and cemetery descendants have advocated for the memorialization of the site where the cemetery once stood. Montgomery County officials have researched the history of the cemetery, but have said it isn’t clear whether gravesites are still there.

One archaeological study conducted in 2017 states that graves are still likely intact, but there otherwise has not been a definitive consensus on whether graves are still there.

In her opinion on Monday, Smith wrote that the state law dealing with cemetery properties covers more than just ground that is being actively used for burials. She wrote that the law applies to:

  • Grounds that have been dedicated and used for burial
  • Grounds where burial lots have been sold and deeds or certificates have been issued to buyers
  • Grounds no longer used for burial
  • Grounds where it is “desirable” that they be used for another purpose

“This court agrees with plaintiffs that there is overwhelming evidence, supported by historical records, that Lot 175 contains a cemetery where former slaves and their descendants were laid to rest,” Smith wrote.

Smith cited testimony during last month’s hearing from Lyle Torp, the managing director of The Ottery Group, which conducted the 2017 archaeological study. Torp, she notes, said during the hearing that it’s “highly unlikely that human remains were removed from the site during the development of Westwood Tower Apartments.”

Smith added that Charger Ventures is not required to memorialize the site, based on the terms of the purchase and sale agreement.

Attorneys for HOC and Charger Ventures could not immediately be reached for comment on Monday.

Steven Lieberman, an attorney representing the plaintiffs, said in a statement Monday that Smith’s ruling was “an important and historic victory, not just for the plaintiffs in this lawsuit, but for all of those throughout the United States who have ancestors buried in traditional cemeteries that have since been obliterated, destroyed, paved over or converted to other uses.”

“Judge Smith’s brilliant and thorough analysis will pave the way for similar actions throughout the country designed to ensure justice for those in our society who are most helpless — those who have passed away and rely on others to protect the sanctity of their eternal rest,” he said in the statement. “Hopefully, the Housing Opportunities Commission will now abandon its illegal efforts to sell this land in violation of Maryland law.”

HOC Commissioner Roy Priest said in a statement Tuesday morning that the court’s ruling was “not the decision the commission had hoped for,” but the HOC still intends to sell the property.

“The Commission intends to move forward with further legal proceedings that confirm the agency’s ability to execute a sale and its plan to not only ensure the preservation of affordable units for the long-term — under a 99-year covenant — but to also help deepen and broaden HOC’s reach throughout Montgomery County, beyond the more than 15,000 households we serve each day, by providing critical resources for affordable housing investments where none previously existed,” he said in the statement. “Our focus remains on our mission and mandate to deliver housing solutions to the 43,000 families throughout this region that are waiting to call Montgomery County home.”

Dan Schere can be reached at daniel.schere@bethesdamagazine.com