Maryland Supreme Court weighing future of historic Black cemetery in closely watched case

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ANNAPOLIS — The fate of a historic Black cemetery in Bethesda went before the Maryland Supreme Court on Monday as lawyers argued over whether Montgomery County‘s housing commission can sell the land containing the burial ground to a private developer.

The lawyer for a group of descendants and advocates who want to block the sale said that the case was the first of its kind to go before any state supreme court.

“This same issue is coming up in hundreds of places around the United States,” said attorney Steven Lieberman, of the law firm Rothwell, Figg, Ernst and Manbeck P.C.

“The whole country is watching this court and what it does,” he said. “They want to see if the Maryland Supreme Court is going to be a leader in providing a remedy, a road map, for fixing these injustices.”

The justices of the Maryland Supreme Court took up the case after the state’s intermediate court ruled in June that the Montgomery County Housing Opportunities Commission was free to sell the land containing the cemetery without first getting a court’s approval.

The Bethesda African Cemetery Coalition has worked for years to block the sale of the property, which is believed to hold at least 200 graves. The Moses Cemetery, along with the nearby Macedonia Baptist Church, is one of the last traces of a Black community that lived along River Road for decades after the Civil War.

The parcel containing the cemetery was sold in 1958. In the late 1960s, an apartment complex was built on the adjoining land and the developer paved over the cemetery to create a parking lot.

During construction, some graves were uncovered and removed from the site, but many are still believed to be there, according to facts detailed in the Appellate Court opinion.

The Housing Opportunities Commission acquired the tower in 2018 and in 2021 sought to sell it to a developer for $51 million.

The BACC intervened, arguing in court that state law required a court’s approval before a cemetery could be sold. A Montgomery County circuit judge issued a preliminary injunction blocking the sale in 2021, and the developer backed out of the sale in the meantime, but the Housing Opportunities Commission appealed.

The Appellate Court found that the decades-old statute governing the sale of cemeteries allows for, but does not require, court approval when a burial site is sold. If the seller or buyer wishes to convey the property without any strings attached — in other words, free from potential claims from people who hold burial lots — and use it for another purpose, they can seek court approval. But court approval is not mandated in the law, the lower court ruled.

Lieberman asked the justices to reject that decision Monday and find that a court’s approval is required before a cemetery can be sold. Though the statute uses the word “may,” which suggests that a court order is optional, Lieberman argued that the statute could be interpreted as a mandate when it is in the public interest to do so.

“As long as (the bodies) are there, … a court has to give permission for the transaction to take place,” Lieberman told the justices.

The lawyer for the Housing Opportunities Commission, Frederick A. Douglas of Douglas & Boykin PLLC, argued that a court’s approval was not necessary for the sale.

“HOC sought merely to transfer its ownership interest to another party,” Douglas said. A court only needed to sign off on the sale if the buyer wanted a clear title, or an ownership claim that had no legal encumbrances attached.

Douglas declined to comment after Monday’s oral arguments.

At a news conference after the arguments, members of the BACC spoke the names of ancestors who are buried in Moses Cemetery and held a “libation ceremony,” the ritual pouring of water on the ground as an offering to the deceased.

Marsha Coleman-Adebayo, the coalition’s president, said the case is essential to protecting Moses Cemetery.

“We refuse to consent to the notion that our ancestors’ bodies will be placed on the auction block again,” Coleman-Adebayo told the gathered audience outside the Maryland Supreme Court. “Our ancestors are not for sale.”

If the BACC is successful, Lieberman said, the coalition’s next step will be working to make the HOC remove the parking lot and listen to community members about how they would like to see the burial site commemorated.