Guest Post by Derek Valentine
Following some last minute hand-wringing, nearly a year of hearings and deliberations by the Zoning Board of Appeals (“ZBA”) and accusations of religious bias, the Town of Dudley agreed to a deal that would allow a proposed Muslim cemetery to be constructed on six acres of former farmland in a rural part of the Town. The Islamic Society of Greater Worcester (“ISGW”) is a non-profit corporation that operates a mosque in Worcester, MA and currently conducts traditional Islamic burials at a cemetery in Enfield, CT. In an effort to provide a burial site closer to the mosque, the group identified a 55-acre parcel of former farmland in Dudley and entered into a purchase agreement with its owner in January, 2016.
SGW approached Dudley shortly after putting the property under contract, seeking a roadmap of permits required to construct the cemetery. The Town’s Building Commissioner determined that the use required a special permit, and ISGW applied for the same on or around January 7, 2016. A public hearing was opened and continued several times in the following months. Some residents expressed concerns about contamination of their wells due to the Islamic practice of burial without coffins. On June 9th, the Zoning Board of Appeals (“ZBA”) voted to deny the application citing the ISGW’s lack of standing. Lack of standing was asserted based on the Town’s belief that it had a right of refusal to purchase the property under G.L. c. 61A, Section 14. The cited section dictates that “land taxed under this section shall not be sold for, or converted to residential, industrial, or commercial use while so taxed or within one year after that time unless the city or town in which the land is located has been notified of the intent to sell for, or to convert to, that other use”. Since it proposed a religious use, ISGW claimed that it is categorically excluded from G.L. c. 61A, Section 14.
ISGW filed a complaint with the Massachusetts Land Court seeking a determination that the right of refusal did not apply and that both the Town and the property owner interfered with a binding contract to purchase the property.
On December 23, 2016, the Boston Globe reported that the parties had reached an agreement that would allow ISGW to build the cemetery, subject to routine town approvals from the ZBA, the Board of Health, and the Conservation Commission. According to the Globe, the settlement recognizes the religious protections extended to the cemetery, but required the project to go back before the ZBA where a special permit will be granted based on the agreed upon conditions of the settlement; which specify that only six acres of the property would be developed as a cemetery and there would be no further expansion for a period of ten years.
The beginning of 2017, however, included a slight stall on the road to final resolution after some verbal sparring in the local paper, the Webster Times, between ISGW attorney, Jay Talerman and Board of Selectman Chair Jonathan Ruda. In a statement in the January 6 edition of the Webster Times, Talerman stated that the “approvals that the town would provide are essentially perfunctory,” and “the Zoning Board doesn’t possess any discretion under the agreement to say ‘no.’” In response to these comments, Mr. Ruda refused to sign the agreement reached through the settlement back in December, 2016. Luckily, this setback was short lived and the agreement was signed by both the ISGW and the town on January 12th, 2017. According to the Webster Times, the project will be brought back before the ZBA, likely in February, followed by review by the Health Department and the Conservation Commission. Permits are expected to be issued sometime after that.