A Proposal Regarding Cemetery Fields

This proposal is intended to demonstrate one approach which could largely satisfy all interested parties in the town and receive approval from the Attorney General’s Office, in hopes of fostering and furthering discussion. 

I do not claim that this proposal is completely achievable as I have laid it out; it surely requires more detail, as well as review by those who can provide legal opinions.  I also have a high level of confidence that this approach would meet the fiduciary duty of the Cemetery Trustees “to protect Trust assets”, perhaps even better than the current Cemetery Fields plans (more detail on this below).

Basic proposal: 

1. Divide the existing Cemetery Fields property into two tracts, one of which would be only flood plain areas with means for access to Merrimack Road.  The upper tract would be retained for Cemetery use, the lower tract intended for recreational fields (which would presumably include most of the current recreation fields, though perhaps not the playground).

2. The town would then purchase the lower tract, at fair market value, from the Cemetery Trust.  The town could pay in cash, by swapping another tract, or some combination of the two.

Here’s how this proposal would meet almost all of the issues which have been raised against such action.

A. Sept. 1, 2014 deadline:  This deadline only applies while the Cemetery Trust owns the land (Superior Court Settlement, May 2, 1999, Paragraph 1).  Thus once the lower tract is purchased by the town, the use for recreation could be continued.  This would obviate the need to revisit the consent decree.

B. Other bidders could buy the land:  It is difficult to imagine another potential buyer for flood plain land which could not be otherwise developed.  Essentially, the only possible uses would be recreation and agriculture (see Section 4.10(C) of the Town of Amherst Zoning Ordinance).

C. Fiduciary duty of the Cemetery Trustees: Any swap or sale at market price, with the proceeds deposited in the trust Fund, would meet this requirement, perhaps even better than holding on to such a large tract of land, most of which would never be used as a cemetery.  Making the funds available (assuming at least a partial sale) for the development of the cemetery seems highly responsible and in line with the fiduciary duty.

D. Pay for cemetery development:  The Cemetery Trustees are currently faced with the challenge of raising funds for development; this transaction could obviate or partially fulfill that need.

E. Town would not vote to approve a warrant for purchase:  This approach helps to reduce/minimize the need for the town to raise additional money in two ways.  First, by dividing out predominantly flood plain land, the value of the lower tract would be reduced/minimized.  Second, the possibility of a swap could cover all or part of the purchase price.  This approach could minimize cash outlays for the town.

F. Serenity:  First, Spaulding Field IS comparable, and there are plenty of comparables in other towns—check out Merrimack, for instance.  Second, would playing fields actually be more disturbing than the existing sand and gravel activities right next door to Cemetery fields?

G. ZBA approval :  Given the current use as playing fields, minimal if any changes can be foreseen which would require ZBA approval.

H. What about the playground?  Depending on exactly which areas were included in the lower tract, and if the Cemetery Trustees continued with development largely as planned, the playground could be relocated onto the lower tract.

I. What could the town swap?  Here’s a radical proposal—swap Spaulding Field to meet all or part of the purchase price.  Regardless of what might be done with Spaulding by the Cemetery Trustees, this would be a great asset for the Cemetery Trust.  Remember that as long as the Town has burial plots available, the fiduciary duty of the Cemetery Trustees is “to protect Trust assets”.   The assets (land) held in the Trust do NOT have to be suitable for cemetery use.

I foresee two challenges to this approach:  1) The willingness of the Cemetery Trustees to consider alternatives, and 2) The potential need to raise funds through a warrant article.  Regarding (1), I think this approach could leave the current plans significantly intact, while providing money for development and clearly meeting both the fiduciary and interment duties.  Regarding (2), this approach should be seen as reasonable, creative and responsible by the residents of the town.  I believe the voters would be much more likely to approve a warrant in the amount to achieve this than they have been for the grandiose plans presented in the past (I’m guessing this would be in $150,000 to $200,000 range).

All I would ask is that you think about it.

Respectfully submitted,

Allen Merriman