The stakes are high for the impending sale of Bethesda’s Westwood Tower Apartments from the Housing Opportunities Commission of Montgomery County to a Bethesda-based investment management company – a net gain of $30 million with a closing date just over a week away.
That was the argument laid out by the buyer, Charger Ventures LLC, and the HOC in court on Monday, as part of a lawsuit against HOC by the Bethesda African Cemetery Coalition, which is trying to halt the sale.
Members of the coalition have rallied against developing the Westwood site, arguing that it should be memorialized to gravesites there.
When witness testimony ended, around 9:15 p.m. Monday, Montgomery County Circuit Court Judge Karla Smith asked attorneys in the case to submit written closing statements to the court by the close of business on Friday.
For the past five years, the cemetery advocacy group has said that hundreds of graves are buried beneath the parking lot of Westwood Towers from the Moses Macedonia African Cemetery.
The cemetery, where enslaved African Americans and their descendants are buried, was paved over in the 1960s to create a parking lot and driveways for the apartments.
In July, the HOC approved a letter of intent for the sale of the property for $51 million to Charger Ventures. The sale was expected to be completed earlier this month.
The cemetery coalition then sued in August, arguing that HOC did not follow a state law that requires anyone selling a cemetery property for another purpose to obtain a court judgment.
A court can order that proceeds from the sale be used to pay for any expenses related to the removal or reburying of remains, or the purchase of burial lots elsewhere, according to the law.
Montgomery County officials have researched the history of the cemetery, but have never determined with certainty that gravesites are still there.
In its lawsuit, the coalition cited a 2017 report from the Ottery Group, an archaeological contracting firm. That report states that burials are likely intact and recommends that no additional ground disturbances take place on the site.
Smith issued a temporary restraining order on Sept. 1, temporarily blocking the sale of the property.
On Monday, the two sides battled it out during a contentious 11-hour hearing, marked by frequent objections from attorneys for each side.
In the first half of the hearing, Nathan Adler, an attorney representing Charger Ventures, argued that his client had a right to intervene in the case because it is an interested party, despite not being a defendant.
Adler told Smith that the scheduled closing date for the sale is Oct. 8. With a potential gain of $30 million for the HOC, failure of the sale will mean Charger Ventures will “suffer significant financial damages,” Adler said in court.
“Demonstrable and immediate harm will result,” he said.
Smith denied Charger Ventures’ motion to intervene.
In the afternoon, attorneys for the cemetery coalition called witnesses to testify, including Harvey Matthews — a member of Macedonia Baptist Church who grew up in the Black community near River Road in Bethesda during the 1940s and ’50s.
“Macedonia was the hub of the River Road community. It still is,” he said of the church.
Matthews remembered walking to school five days a week on a gravel path through the cemetery until 1959, when he was about 15. On top of the graves were large crosses that his uncle and cousin, who were brick masons, had worked on, he said.
Matthews indicated on maps where the cemetery was prior to the construction of Westwood in the late 1960s, and after.
During construction, he said, he was working at a gas station “a stone’s throw” from the construction site. When a whistle blew, work would stop and crews would place remains from the cemetery in burlap bags that would be disposed of in Seneca Creek, he said.
“Descendants [who have died] can’t speak for themselves … but the ones living can speak on their behalf,” he said.
Geneva Nannette Hunter, whose great-great-aunt Cora Botts was buried in the cemetery in 1935, said she is angry that she didn’t have the opportunity to give input to the HOC on the sale of the property. If the site isn’t preserved, she’ll be “further angered,” she said.
Lyle Torp, the managing director of the Ottery Group, said his employees used a combination of death notices, land records and oral histories, among other sources. He thinks it’s “unlikely” that all bodies were removed during the construction of Westwood.
Segun Adebayo, the pastor of Macedonia Baptist Church, told attorneys for each party that during a meeting in July, HOC Chair Roy Priest told cemetery coalition members that he was “still committed” to memorializing the site. Adebayo said he requested a subsequent meeting with Priest, but didn’t get a reply.
When Frederick Douglas, an attorney representing HOC, asked the agency’s acting executive director, Kayrine Brown, whether Charger Ventures was made aware of the history of the cemetery prior to the sale, she answered that it had. Brown said Charger agreed to work with the cemetery coalition for three years on memorializing the site.
The agreement specifically states that Charger Ventures is to “work in good faith” with the coalition after the deal closes.
Brown said that of the $51 million generated from the deal with Charger Ventures, about $30 million would go to the HOC and the rest would be used to fund debt on the property.
Brown declined to speak with a Bethesda Beat reporter following the hearing.
Steven Lieberman, an attorney who represents the plaintiffs, said in an interview that Smith must rule both on a motion to dismiss made by the HOC’s counsel, and the plaintiff’s motion for an injunction.
Lieberman said he felt positive about Monday’s proceedings.
“I think the judge got a very good sense of the fact that there isn’t any real issue. There are bodies under parcel 175, and HOC has not complied with its statutory obligations,” he said.
Dan Schere can be reached at firstname.lastname@example.org