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.

Original photo by Ken Whytock, some rights reserved.

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Photo of Karla Chaffee Karla Chaffee

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six

Karla L. Chaffee is a member of Robinson+Cole’s Real Estate + Development Group and is based in the Boston office, focusing on a variety of land use and environmental matters. Karla’s interest in RLUIPA began in law school when she co-authored, “Six Fact Patterns of Substantial Burden in RLUIPA: Lessons for Potential Litigants,” (with Dwight Merriam) published in Albany Government Law Review (Spring 2009). Karla has continued to write and speak on RLUIPA and has represented clients in several federal proceedings, including RLUIPA, First Amendment, and Equal Protection claims. In addition to her RLUIPA practice, Karla has litigated complex environmental matters, defending claims under Massachusetts Chapter 21E. Karla’s transactional experience includes pre-acquisition and pre-financing due diligence, environmental risk assessment and risk mitigation. She also represents clients seeking local zoning approvals and counsels them on the impact of proposed or recently enacted land use legislation, as well as on land use trends across the country.

Karla is also a proud member of Robinson+Cole’s Pro Bono Committee and is dedicated to maintaining pro bono work as part of her practice. Her pro bono clients include individuals and families seeking asylum in the United States. She has also represented nonprofit organizations in obtaining tax-exempt status and has served as legal counsel in a zoning appeal for a nonprofit association created to support and protect a national park.

Photo of Evan Seeman Evan Seeman

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of…

Evan J. Seeman is a lawyer in Robinson+Cole’s Hartford office and focuses his practice on land use, real estate, environmental, and regulatory matters, representing local governments, developers and advocacy groups. He has spoken and written about RLUIPA, and was a lead author of an amicus curiae brief at the petition stage before the United States Supreme Court in a RLUIPA case entitled City of San Leandro v. International Church of the Foursquare Gospel.

Evan serves as the Secretary/Treasurer of the APA’s Planning & Law Division. He also serves as the Chair of the Planning & Zoning Section of the Connecticut Bar Association’s Young Lawyers Section, and is the former Co-Chair of its Municipal Law Section. He has been named to the Connecticut Super Lawyers® list as a Rising Star in the area of Land Use Law for 2013 and 2014. He received his B.A. in political science and Russian studies (with honors) from Trinity College in Hartford, Connecticut, where he was selected as the President’s Fellow in the Department of Modern Languages and Literature. Evan received his Juris Doctor at the University of Connecticut School of Law, where he served on the Connecticut Law Review. While in law school, he interned with the Connecticut Office of the Attorney General in the environmental department, and served as a judicial intern for the judges of the Mashantucket Pequot Tribal Court. Following law school, Evan clerked for the Honorable F. Herbert Gruendel of the Connecticut Appellate Court.

Photo of John Peloso John Peloso

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including…

John Peloso, a partner in the firm’s Real Estate Litigation Group, is a trial lawyer who represents companies, municipalities, and individuals in a wide range of matters. At the administrative, trial, and appellate levels, John counsels clients and litigates real property disputes, including real estate, land use, environmental, and tax matters, including RLUIPA and eminent domain matters.

In the area of real estate litigation, John represents institutional, municipal, and individual clients in disputes involving title, zoning, wetlands, land use, RLUIPA, eminent domain, and other real property rights. He also represents clients in all aspects of commercial lease and other real estate transactional disputes. In the area of real property tax litigation, he represents institutional and individual clients in proceedings at the regulatory, administrative, and trial levels. In this regard, he has dealt with specialized issues involving among other things, the valuation of high-tech software, wireless communications equipment, contingency fee tax audits, special use properties, and the impact of environmental conditions on the valuation of real property.

Prior to joining Robinson+Cole, John was a member of the litigation department at White & Case LLP in New York City, where he concentrated his practice in complex commercial, property and securities litigation.