Updated on June 30 at 1:57 p.m. to add a statement from the executive director of the Housing Opportunities Commission of Montgomery County.
After a two-year legal battle to block the sale of a Bethesda apartment building that sits on the former site of a historic Black cemetery, the Appellate Court of Maryland ruled Wednesday that the property owners do not need to seek court approval before selling it.
The ruling is a setback for the Bethesda African Cemetery Coalition (BACC), which has spent years advocating for the preservation and memorialization of the burial ground they call Moses Macedonia Cemetery, located just off River Road. In August 2021, the coalition sought to block the sale of the Westwood Tower Apartments–which sits on the parcel of land where the cemetery was located–and filed a lawsuit against the Housing Opportunities Commission of Montgomery County (HOC). In October 2021, a county circuit court judge granted a preliminary injunction and stopped the sale, which HOC later appealed and moved the case to Maryland’s second highest court.
“[The] ruling is disgraceful,” coalition president Marsha Coleman-Adebayo said in a Wednesday press release. “It shows no sensitivity to or understanding of the nature of African American burial grounds. It treats the rights of the owner of a parking lot that was built over hundreds of African American graves as superior to the dignity of the people interred in the burial ground.”
In a statement to MoCo360, HOC executive director, Chelsea Andrews, said the ruling confirms HOC properly observed Maryland laws that protect burial grounds.
“HOC’s involvement with the Westwood Towers property has been in service of our mission to provide affordable housing to low and moderate income residents of Montgomery County and that continues to be our priority moving forward,” Andrews said. “HOC acknowledges the significance of the African American history affiliated with this site and will continue to respect and honor this legacy in the community.”
An attorney for HOC declined to comment on Wednesday’s ruling.
In the 1960s the site of the cemetery was paved over to be used as the parking lot of Westwood Tower Apartments. The burial ground lies on what is referred to as parcel 175 on Westbard Avenue.
HOC, which is a quasi-governmental organization that provides housing for low- and moderate-income families in the county, acquired the apartment building in 2018. In 2021, HOC planned to sell the property to a developer, Charger Ventures, for $51 million. Coalition members, along with the Rev. Olusegun Adebayo, pastor of the Macedonia Baptist Church–which sits across the street on River Road–and three people whose ancestors were buried at the cemetery filed a lawsuit against HOC to block the sale in August 2021.
The lawsuit argued that the sale of the property with a known cemetery or burial ground must obtain court-ordered approval in accordance with a decades-old statute that governs the sale of burial grounds when the site would be used “for another purpose.”
Wednesday’s ruling reverses Montgomery County Circuit Court Judge Karla Smith’s October 2021 decision that granted a preliminary injunction to prevent the sale to Charger Ventures. In November 2021, Charger pulled out of the sale because of the ongoing litigation.
The coalition’s attorney, Steven Lieberman said the ruling was “shocking and plainly incorrect” and if permitted, could bring an “open season on traditional African American burial grounds in Maryland. None of the graves in such burial grounds will be safe.”
The appellate court’s panel of three judges concluded that the statute allows for, but does not require HOC to seek and obtain court approval for the sale of parcel 175.
“If HOC can find a potential buyer that is willing to take the property subject to the rights of the holders of the burial lots, HOC can sell the property without court approval, but the lot holders’ rights will not have been extinguished by a court order,” Judge Kevin F. Arthur wrote in the court opinion.
The Bethesda African Cemetery Coalition said in the press release that they plan to appeal the ruling to the Supreme Court of Maryland.