HARWICH — The town has put First Congregational Church of Harwich on notice that it will cease maintaining the Harwich Center Cemetery as of the end of this month. The town had been taking care of the cemetery for many years under the assumption the it was municipally owned.
But a recent Land Court decision concluded the historic cemetery, adjacent to the church, belongs to the First Congregational Church dating back to when the property was conveyed by Samuel Nickerson and Benjamin Smalley in 1743.
Town Administrator Christopher Clark and Pastor Rev. Thomas Leinbach met a couple of weeks ago to discuss the findings of the decision issued by Land Court Judge Robert Foster. Clark issued a memo to selectmen relative to the meeting in which he stated, “I clearly acknowledged that the property in question was without dispute the church's property.”
Clark also stated in that memo: “We had some general discussion pertaining to the litigation process. We both acknowledged a strong desire to put this disagreement in the past and to move forward amicably.”
Clark and Leinbach both agree the judge was sensitive to the town's point that graves in the cemetery must be protected. The initial disagreement that led to the ownership issue was related to the church's placement of a cremation memorial garden over an area where the town had identified unmarked graves. Clark said Leinbach made it clear the church would no longer put remains on top of the unmarked graves.
“He was going to get a surveyor to put stakes in the ground so they know where they are,” Clark said. “That takes care of the town's concern.”
Another issue raised in the meeting related to the town's long term maintenance of the cemetery. Clark said the assumption was the town owned the property, but the court decision changed that.
“The town can't go on and provide maintenance on that property” now that has been determined to be privately owned, he said.
The judge's ruling cited a town meeting vote in 1938 which adopted a state statute establishing a three-member cemetery commission and provided $500 to care for burial grounds within the town “not properly cared for by the owners.” The ruling noted subsequent town reports of the town providing maintenance of town and privately owned cemeteries, including the Harwich Center Cemetery.
“Prior to 1938, the church cared for the cemetery. In 1938, the Church turned over care of the cemetery to the town. The town has since overseen repairs and trimmed trees consistent with the town's maintenance of the cemetery. The church has never withdrawn its permission to the town for maintenance of the cemetery,” the ruling stated.
In his memo to selectmen, Clark said he discussed with Leinbach that this “was private property and the church is functioning, that the town would transition away from mowing the First Congregational Church of Harwich Cemetery.” He said the town, in order for the church to make alternative arrangements, would continue mowing through Oct. 31.
Clark said in the memo that Leinbach said his records show the town continues to mow the Methodists and Baptist Church cemeteries. “If these two churches are currently in operation and have cemeteries we would send notice to them that I would have to check into our practice. The intent is to be consistent (with) the judge's decision,” Clark stated in the memo.
Leinbach did not return telephone calls on Monday and Tuesday from The Chronicle seeking comment.
James Stratton, who cares for local cemeteries within the town department of public works, said on Tuesday the department provides maintenance for the cemeteries at the East Harwich Methodist Church and the Baptist Church in West Harwich, as they have done for the Harwich Center Cemetery. The town does not provide that service for Holy Trinity Church's cemetery on Pleasant Lake Avenue, Stratton said.
Stratton said the churches have a landscaper or handyman that does work around the churches and the DPW mows only in and around the gravestones and trims branches in the area.
The cemetery commission has the authority to care for burial grounds “not properly cared for by the owners,” Clark said, adding the regulations were put in place in the Depression, when there was little money around to provide for the care.
“No way can anyone say it is a derelict cemetery,” Clark said of the Harwich Center Cemetery. “We have very little leeway to do work on private property. It's not punitive on our part. We have an obligation to follow the law. We're acting accordingly.”
Clark said he had two ladies come to visit him last week expressing extreme concern with the town's ability to adequately maintain the town's existing cemeteries. Right now there are two people who do mowing in the cemeteries, and the town does not have the staff to meet the landscaping quality standards some expect.
“We shouldn't use the statute approved in 1938 to do this unless the cemeteries are derelict,” Clark said.