HARWICH — The town and the First Congregational Church of Harwich are working through a memorandum of agreement regarding activities in the Harwich Center Cemetery related to litigation over the cemetery ownership.
The dispute centered around a Memorial Garden established in the cemetery for the cremated remains of parishioners. The cemetery commission said there were historical unmarked graves in the same location and requested the Memorial Garden be relocated. The church took the stance it would not relocate ashes of parishioners already interred. The dispute led to litigation in which the church claimed ownership of the cemetery.
In the Land Court case, Judge Robert Foster concluded the historic cemetery adjacent to the church belongs to the First Congregation Church as it was conveyed by Samuel Nickerson and Benjamin Smalley for a meetinghouse in 1743.
Town Administrator Christopher Clark told the board Monday night in that finding the court ruled the town no longer has to provide maintenance of the cemetery. The town began maintaining the cemetery in 1938 after the town adopted a state statute establishing a cemetery commission and providing funding to care for burial grounds.
The court also addressed the town's concern related to the placement of ashes in the location of unmarked graves, ruling that that can no longer happen.
Clark informed the church last October the town would cease maintaining the cemetery at the end of that month. The town's legal counsel and counsel for the church have now crafted the memorandum of agreement that notes the town's decision to cease care of the cemetery and the church's agreement to resume maintenance.
The document points out that using ground-penetrating radar it has been determined that there are probable unmarked ancient graves in and near certain areas of the garden. On a sketch plan prepared by Outermost Land Survey, Inc. those graves have been delineated.
The agreement seeks to have both parties agree that plan “shall serve as the sole and definitive record of the location of unmarked burials in the Memorial Garden and the cemetery.” The locations are referred to as “excluded locations.”
“The church will conduct no interments of cremains in any excluded location indicated on the plan,” the agreement states. It further stipulates the church will be responsible for care of the cemetery and the Memorial Garden.
Selectmen on Monday night were considering voting to sign the agreement. Selectman Julie Kavanagh wanted to know if there was an engineer's stamp on the plan. Clark pointed out the sketch plan was taken from the plan provided by the town.
Kavanagh requested that Clark ask town counsel whether such a stamp is necessary.
“We want no gaps at all, check it out,” added Selectman Larry Ballantine. The board withheld a final approval until the need for an engineer's stamp is determined.