The opinion of the court was delivered by: GASCH
This matter is before the Court on trustees' petition to sell real estate under Order Nisi and intervenors' oppositions thereto, and intervenors' motions to vacate the August 10, 1964, Order permitting the disinterment of bodies buried in the west side of the Mt. Zion Cemetery and trustees' opposition thereto.
Mt. Zion Cemetery occupies lots 802 and 803 in Squares 1288 and 1289 in the northeastern section of the Georgetown Historic District located at 27th and Q Streets, Northwest, Washington, D.C. The eastern portion of Mt. Zion Cemetery is known as the "Old Methodist Burial Grounds" and is owned by the Dumbarton United Methodist Church. The western portion, which is the subject of this litigation, is known as the Female Union Band Society Graveyard (hereinafter referred to as the Graveyard). It is owned by the heirs of Female Union Band Society members and the estate of Charles L. Norris. No fence separates the two properties, and over the years they have come to be known in the community simply as the Mt. Zion Cemetery.
The Female Union Band Society was founded by a group of free black women around 1842. The constitution and by-laws of this cooperative benevolent society pledged to each member assistance when sick, including the payment of two dollars a week, as well as a grave and twenty dollars for funeral expenses when deceased.
The Graveyard was purchased by Joseph Mason in trust for the Society for $250 on October 19, 1842, from Joseph E. Whitehead of New Orleans, Louisiana. The deed was recorded on August 8, 1843.
The land was used by the Society for burial grounds until 1950, when the last burial took place. The last regular meeting of the Female Union Band Society had been in 1948.
In 1960 the Society resurrected itself to defend its title to the property against a claim to title by adverse possession filed by the Mt. Zion Methodist Church.
The Society was represented in this action by Charles L. Norris, Esquire. The Society prevailed and assigned a 25 percent interest in the Graveyard to Mr. Norris as payment for his services.
The Society was unable to maintain the cemetery, however. No provision had been made for perpetual care. As a result the Graveyard fell into a state of disrepair. In 1953 the District of Columbia prohibited further interments because the cemetery was not in compliance with Health Department regulations.
On October 22, 1963, the Female Union Band Society and Charles L. Norris petitioned this Court for permission to disinter the bodies in the Graveyard and bury them in another cemetery that provided perpetual care.
There being no opposition, the petition was granted by Judge Jones, sitting as Motions Judge, on August 10, 1964.
Thereafter another suit was filed to clear title to the property.
By Order dated April 20, 1967, Judge Walsh, sitting as Motions Judge, declared and adjudged fee simple title to the Graveyard vested in twenty-three named heirs of Society members and Charles L. Norris as tenants in common. On May 11, 1967, the Court appointed Charles L. Norris and George E. C. Hays trustees to sell the Graveyard for the benefit of the tenants in common.
The trustees attempted to obtain better zoning for the cemetery before selling it. The area was (and is) zoned for single family dwellings. They determined that the land would bring a better price if it were zoned for apartments or townhouses. But their application for a change in zoning was denied by the Zoning Commission on April 22, 1971.
The decision of the Zoning Commission was appealed to this Court, and the Court remanded the case back to the Zoning Commission for findings of fact on which the decision was based. The Zoning Commission still has the case open; no findings of fact have been made. Attorney's fees and costs of trial in connection with the Zoning Commission action amounted to approximately $20,000. These fees and costs were advanced by Charles L. Norris with the understanding that he would be reimbursed out of the proceeds of the sale of the property.
After the original trustees died, Robert T. Smith and George H. Windsor were appointed trustees to sell the land. Robert T. Smith is also a co-executor of the estate of Charles L. Norris. The new trustees decided to sell the land under its present zoning status. On November 8, 1973, they executed a contract to sell the land to David W. Evans at a price of $144,000 plus costs of disinterment of the bodies in the Graveyard and reburial elsewhere.
On February 7, 1974, the trustees petitioned this Court for permission to sell the land under the Order Nisi. This petition was assigned to the Court sitting as Motions Judge and is now before the Court.
On April 23, 1974, the Court granted Neville Waters leave to intervene in opposition to execution of the Order of August 10, 1964.
Neville Waters is the son of Gertrude Turner Waters, one of the Society members who petitioned the Court for permission to disinter in 1963.
On June 26, 1974, the Court granted the Afro-American Bicentennial Corporation (hereinafter referred to as ABC) leave to intervene in opposition to the execution of the Order of August 10, 1964.
ABC is a private non-profit research organization and consulting firm.
Both Neville Waters and ABC moved pursuant to Rule 60(b)(5) or (6) of the Federal Rules of Civil Procedure
to vacate the August 10, 1964, Order permitting disinterment and opposing the May 11, 1967, Order permitting sale of the land on grounds of changed circumstances, public policy, violation of present D.C. law,
Intervenors pointed out in their motion
that in 1963 the cemetery was unkept;
there was no provision for perpetual care; there was no willingness to undertake maintenance; and it was in the best interests of the community to terminate cemetery use of the land.
In June, 1974 the Court met with all parties in chambers. ABC stated that it was willing to purchase the Graveyard for one dollar in order to preserve it as a national landmark. The trustees replied that they had executed a contract to sell the land; if ABC wanted to preserve the land as a cemetery, it should offer to purchase the Graveyard for the sale price of $144,000. ABC admitted that it did not have funds to purchase the land but suggested that volunteer help could be used to restore and maintain the Graveyard until it could be taken by the Interior Department. The trustees rejected the suggestion that volunteer help could restore the cemetery, and they questioned whether money could be found for perpetual care, noting that prior efforts to have the cemetery taken by the National Park and Planning Commission had failed. They contended that there was no change in circumstances because there was still a lack of funds to buy, restore, and maintain the Graveyard.
In July ABC wrote the trustees and offered to clean up the Graveyard so that it would be in conformity with Health Department regulations.
The trustees' response did not discuss the proposed offer of assistance in ...