This story was updated at 9:30 a.m. on Sept. 28, 2022 to include additional information
A dispute involving land that once was home to an African American cemetery in Bethesda is expected to be heard in the state’s Court of Special Appeals next week.
For six years, the Bethesda African Cemetery Coalition, a nonprofit, has advocated for the preservation of the land where the Moses Macedonia African Cemetery once stood, thought to be on the parcel that houses the Westwood Tower Apartments at 5401 Westbard Ave.
The cemetery was paved over in the 1960s to create the parking lot and driveways when the apartments were under construction. Coalition members, which include members of Macedonia Baptist Church and descendants of those buried in the cemetery, have argued that remains are still buried there.
In July 2021, 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 – a Bethesda-based investment management company. The transaction was scheduled to close at the beginning of September 2021.
A month after the HOC approved the letter of intent, the cemetery coalition sued the HOC on the grounds that the agency didn’t follow a state law requiring anyone selling a cemetery property to first obtain a court judgment granting permission for the land to be sold.
Montgomery County officials have never confirmed that graves still exist at the Westwood site, however a private archeological consultant conducted a study in 2017 and determined that the graves likely are still intact.
In the fall of 2021, following a hearing with 11 hours of testimony, Montgomery County Circuit Court Judge Karla Smith granted an injunction blocking the sale of the Westwood property to Charger Ventures. In her opinion at the time, Smith cited testimony from Lyle Torp of The Ottery Group, which conducted the 2017 study, saying that it was “highly unlikely” remains were removed during the construction of the apartments.
By late November 2021, Charger Ventures had scrapped its plans to purchase the site. HOC Chair Roy Priest said at the time the commission planned to continue with litigation in the matter, with the eventual goal of selling the property.
In November 2021, HOC filed an appeal of the injunction, according to Steven Lieberman, an attorney representing the cemetery coalition. A hearing on the appeal is scheduled for Oct. 6 in Annapolis before a three-judge panel.
Lieberman told Bethesda Beat on Tuesday evening that the agency plans to argue that three descendants of people buried in the cemetery, who are members of the coalition, are not “persons of interest” and don’t have legal standing. A person of interest is someone who is related to someone buried in the cemetery and is related by blood or marriage, or has a cultural affiliation with the cemetery, Lieberman explained.
“These are, in my view, outrageous arguments that fly in the face of evidence. And they fly in the face of the law,” he said.
“The Macedonia Baptist Church is literally a stone’s throw from the cemetery [site]. It’s right across River Road. And members of the Macedonia Baptist Church are descendants of people who lived in that community, which was served by the cemetery. There are members who are descendants of people who are buried there. Indeed the church itself is on a side road named after a family that had people buried in that cemetery. So this argument is as close to frivolous as you can get.”
Lieberman noted that during the October 2021 injunction hearing, Nanette Hunter explained while testifying that she was a direct descendant of a person buried in the cemetery. Lieberman said HOC is trying to raise doubt about her testimony because she couldn’t prove in court which of the two parcels, Nos. 175 or 177, her ancestors were buried on.
“What they ignore is the overwhelming evidence that was presented at the hearing, that the vast majority of the bodies were buried on parcel 175,” Lieberman said.
Lieberman said HOC hasn’t refuted any of the facts about the cemetery but is ignoring “evidence they don’t like.” He noted that key testimony in the hearing last year came from Harvey Matthews, a member of Macedonia Baptist Church who grew up in the African American Community along River Road in the 1940s and ’50s.
“Harvey Matthews testified as a child that he played in that cemetery. And he testified where the graves were. They ignore that testimony,” he said.
If the appellate court ultimately overturns Smith’s 2021 ruling, Lieberman said the coalition will appeal to the Maryland Court of Appeals, which is the state’s highest court. If the court affirms the circuit court ruling, he hopes HOC will meet with the cemetery coalition to work out a solution.
“What they should be doing is they should be saying, ‘Let’s find a way to properly memorialize the people who are buried there. We’ll remove part of the parking lot. We’ll re-inter bodies. We’ll put up new gravestones. We’ll have a museum. We’ll contribute money to this,’ ” Lieberman said. “That’s what they should have done in the first place.”
HOC General Counsel Aisha Memon wrote in a statement to Bethesda Beat on Tuesday that “given the ongoing litigation, neither I nor any other HOC representative is able to comment on the appeal at this time.”
Marsha Coleman-Adebayo, a leader in the cemetery coalition, could not be reached for comment Tuesday. The coalition sent out a press release last week inviting people to attend the hearing and also urging people to donate to online funds set up to help memorialize the site.
Dan Schere can be reached at firstname.lastname@example.org