Trustees: Cemetery Fields Cannot Be Divided for Recreation

Peter Bergin:

Thanks to all who have called or stopped us to say that they support the work of the Cemetery Trustees in regard to preparing Forestview Cemetery.  For those who are still wondering about dividing the land we have more information to share.

Dividing the Land:

Restating AG Atty Blenkinsop’s words; capitalization is ours for emphasis and understanding.

Atty. Blenkinsop: The land is an asset of the Cemetery Trust, purchased with Cemetery Trust Funds, for cemetery purposes.  Not considering for the sake of this response the impact of settlement agreements and court orders, or local land subdivision requirements, the Trustees, in theory, could decide to convert some of this real property to cash by subdividing and selling.  IN REACHING SUCH A DECISION THE TRUSTEES, CONSISTENT WITH THEIR FIDUCIARY DUTIES, WOULD NEED TO DETERMINE AND SHOW THAT THE PROPERTY TO BE SOLD IS NOT NEEDED FOR CEMETERY PURPOSES NOW OR IN THE FUTURE, AND THAT THE REMAINING PROPERTY IS SUFFICIENT/APPROPRIATE FOR CEMETERY PURPOSES/NEEDS, OR THAT THEY WOULD PURCHASE OTHER LAND SUFFICIENT FOR CEMETERY PURPOSES.  IN SHORT, THEY WOULD NEED TO DETERMINE THAT SUCH A SALE WAS IN THE BEST INTEREST OF THE CEMETERY TRUST.  FURTHERMORE, TRUSTEES WOULD NEED TO REALIZE A FAIR MARKET RETURN ON SUCH A SALE AND MAXIMIZE THE VALUE OF THEIR CHARITABLE ASSET.

Next, we as Trustees,  had asked for legal advice, as to if there were a way that the Cemetery Trustees can subdivide the Forestview Cemetery Land, knowing that it is our fiduciary duty to keep the BEST PARTS OF THAT LAND to Protect the Cemetery Trust Fund Asset, and sell off the leftover parts not needed for a cemetery.

We learned that theoretically, subdividing and selling a part of the Forest View Cemetery Land is possible, if approved by ALL the players involved, e.g. the state AG, Court, Trustees and the Grasset/Merrill Family, who would all need to agree,  and sign off to begin the process of dividing and selling.

However, while it is POSSIBLE, IT IS NOT PROBABLE, because in order to get all the parties to agree and sign off on this, the following process would have to take place:

1. Legally the Cemetery Trustees are already engaged in ending recreational use and moving the Forestview Land into cemetery use. This means the Cemetery Trustees would have to agree to stop their ongoing Cy-Pres legal process in which they are currently engaged, in prepping the land to be a cemetery, switch paths, divide the land, in the trust’s favor, and begin a process of complicated legal steps.  

2.  Next the Trustees would have to find a way, to extend the May 11, 1999 decree that involved the Grasset/Merrill Family, and ask the AG and Court to extend the termination date past 2014.  

3. To do this, the decree must be changed, by approaching the AG for permission to extend the Sept 2014 date.

4. If the AG grants permission, then the Cemetery Trustees would have to then petition the court to change/extend the 2014 date….(this is because since the 1999 decree was FILED, APPROVED AND NOT APPEALED, the Trustees would have to petition the Court to change the 1999 decree.)

5. This petition would be based as a lawsuit,  involving the Grasset/Merrill Family and AG as parties.  The Grasset/Merrills would have the right to attempt to block the petition, which could cause more expenses legally as well as great delay. Additionally abutters who favor the cemetery only, may also file objections.

6. IF the court gave an extension of the date,  because all the parties, AG, Trustees and Grassett/Merrills agreed to it…or the Court, allowed it, for whatever reason,  the Trustees would then go back to Court in a new venture to get permission to subdivide and sell  the leftover land.

7. This petition would be a new venture in which the Trustees would have to ask the Court to allow  the dividing of the land that was PURCHASED WITH  CEMETERY TRUST FUNDS.  The request essentially would be asking the court to overlook the restrictions of the trust, and then the court would officially  observe and manage the subdividing and sale to make sure that the Trustees were fulfilling their duties with regard to their fiduciary responsibilities as Trustees. To ask the Court for permission to allow the Trustees to subdivide and sell off,  would have a process of its own.

8. The Trustees would have to petition to the Court naming the AG as  respondent.  The Grasset/Merrills and abutters who want the land to remain solely as a cemetery may file an objection, which could slow down the process to months or years.  If that process went past Sept. 2014, the 1999 ruling kicks in and the issue is moot and over.

9. If the process did not go past Sept 2014, the following steps would next have to happen.

10. The Trustees’ petition would go to trial, and after surveying the land,  they would prepare and present the subdivision plan to the Amherst town planning board so that later,  it would serve to inform the Court exactly what property will be subdivided.  Having the Planning Board’s  approval , prior to going to Court,  will allow an appraiser to give a proper  opinion of the value of the land with regard to the cemetery part and the leftover land for sale.  

11. Next, once the subdivision has been completed, the Trustees will have to get at least one, or more, property appraisals,  from independent third parties , before petitioning the to Court.

12. Next,  the Trustees  would have to prove to the court,  that they are keeping the best part of the land for the cemetery so as to protect the trust’s asset, and that the leftovers they sell, would not hurt the kept land to be used as a cemetery. IT HAS BEEN DETERMINED BY ALTUS ENGINEERING, THAT THE BEST CEMETERY LAND IS LOCATED WHERE THE TEMPORARY PLAYGROUND AND TEMPORARY PLAYING FIELDS ARE CURRENTLY PLACED.  IF THE LAND WERE EVER DIVIDED, ONLY THE PART, NOT SUITABLE FOR CEMETERY USE, NOW, OR IN THE FUTURE, WOULD BE THE PART TO BE SOLD AT FAIR MARKET VALUE.

13. i.e. this would need to be accomplished by presenting engineering studies that show that the ability of the “land kept for cemetery”  will be able to serve as a cemetery and  will not be negatively impacted by the selling of the leftover land.  

14. Then the Trustees would have to prove that the Trustees would receive at least fair market value for the land, as the trust’s assets must never be at risk or loss.

15. The Trustees would have to ensure to the court, that the monies received from the sale would be consistent with the rules  and regulations of cemetery trusts.

16. Next, if the Trustees received Court approval, they would have to hold the sale in a way that insures the trust fund receives at least fair market value.  To assure the trust gets the best price for the land, the Trustees would place the property on the market but also, to protect the asset, reserve the right to not sell until the value established by the appraisals is obtained.  

17. If the Town of Amherst wanted the leftover land, the Town would have to have  the requisite funds approved, to acquire the property and the  Court would have to  approve that appraisal, process and price. (If there is any interest in the Town of Amherst purchasing the leftover land, that is unsuitable for a cemetery,  it has not been brought to our attention.)

18. Thus,  I refer to my letter in the last issue of The Amherst Citizen

LAND USAGE: The Cemetery Trustees have been asked about dividing the land.

Dividing the land would mean, that because the land WAS BOUGHT WITH AMHERST CEMETERY PERPETUAL CARE TRUST FUNDS, the land would have to be divided, so that the BEST PART OF THE LAND WOULD STILL BE AVAILABLE FOR A CEMETERY NOW, OR IN THE FUTURE.

This is because the Cemetery Trustees’ Charge, is to PROTECT that land,  as The Amherst Cemetery Perpetual Care Trust Fund Asset that it is.

IT HAS BEEN DETERMINED BY ALTUS ENGINEERING, THAT THE BEST CEMETERY LAND IS LOCATED WHERE THE TEMPORARY PLAYGROUND AND TEMPORARY PLAYING FIELDS ARE CURRENTLY PLACED.  IF THE LAND WERE EVER DIVIDED, ONLY THE PART, NOT SUITABLE FOR CEMETERY USE, NOW, OR IN THE FUTURE, WOULD BE THE PART TO BE SOLD AT FAIR MARKET VALUE.

19. Lastly, yes, in March of 2014, the voters have the option to elect one Trustee, and/or petition a warrant article to dissolve the Trustees and replace them with the Selectmen, as per

Section 289:6 Cemetery Trustees.

 II-a. (a) Any town, with a traditional town meeting form of government, may adopt by a vote of the town meeting to have the board of selectmen serve for the term of elected office as the cemetery trustees. The warrant article to be voted shall be:

     "Shall we delegate the duties and responsibilities of the cemetery trustees to the board of selectmen?''

     (b) If the majority vote in the affirmative then the delegation shall take effect 90 days after adoption (June 2014) and shall continue until rescinded by vote of the town meeting.

  III. At any subsequent town meeting, the town may vote to reinstate the board of cemetery trustees. A new board of cemetery trustees shall be elected at the town meeting next following the vote to reinstate the board of cemetery trustees.

20. At the May 6 Information Session, the Trustees were asked about cemetery town by-laws There are no Town of Amherst Cemetery Trustee By-laws.  The Cemetery Trustees are elected to protect Cemetery Trust Fund Assets; as per the CURRENT STATE OF NEW HAMPSHIRE  RSA, SECTION 289, AND OPERATE UNDER THE AUTHORITY OF THE STATE OF NEW HAMPSHIRE, OFFICE OF ATTORNEY GENERAL, CHARITABLE TRUST UNIT.

The Trustees are not elected to serve the best all-around interests of the townsfolk or  serve to satisfy  the best interests of the citizenry. Their scope is concentrated. Anyone who serves as a Cemetery Trustee, be it a current Trustee, a future Trustee, or the Board of Selectman as Trustees,  must serve to protect the Cemetery Trust Fund Assets, and operate under the current RSA 289,  and the AG’s authority.

Peter Bergin, Amherst Cemetery Trustees Chair