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Update:  Isaac Shoemaker Cemetery, legal case before Maryland Court of Special Appeals

On August 13, 2021, the Maryland Court of Special Appeals ruled that as a matter of law, the Isaac Shoemaker Cemetery – a 3,630+/- square foot plot of land within 5200 Murray Road in Chevy Chase, in Montgomery County – is not protected and can be redeveloped. Current owner Paramount Construction filed a case in the Montgomery County Circuit Court in May 2018, claiming legal title, title through adverse possession, and asking that the Court find that as a factual matter no human remains are buried there. Isaac Shoemaker Cemetery straddles two current properties, with the case concerning only the portion within 5200 Murray Road.

Nancy Werner, great-great granddaughter of Isaac Shoemaker, grew up visiting the family graves with her grandfather and father, since the 1940s. A century of solid documentary evidence, including an 1883 funeral home notation confirming that Shoemaker was buried on his farm followed by a 1924 deed to the Shoemaker farm reserving a burial plot located on “the Perry boundary line near River Road; containing 1/7 of an acre,” supports the Shoemaker descendants’ belief that Isaac Shoemaker, his wife and several other persons were interred here between 1853 and 1883.

In 2016 Paramount purchased the property for redevelopment purposes, specifically to demolish an existing single-family home and replace it with a larger one. It claimed legal title, and alternatively title through adverse possession. Werner claimed that she and other Shoemaker descendants continue to hold legal title to the burial ground subject to the 1924 deed reservation, and as a result Paramount would not have the legal right to enter the burial ground, let alone disturb it.

The trial court ruled in favor of Paramount on all claims, as did the Court of Special Appeals. Regrettably, the courts chose to overlook critical facts in reaching their conclusions, including: relying on the lack of grave markers at the time of trial (disregarding Ms. Werner’s testimony that she personally saw grave markers through the 1970s); accepting at face value the testimony of Paramount’s expert witness that there were no grave sites (notwithstanding his concession that the lack of grave markers is not dispositive of whether bodies are buried here); minimizing the importance of periwinkle at the site; failing to give weight to later plats reserving a “burial ground” that included the gravesites; accepting inaccurate statements about Maryland tax exempt status still in place; and concluding that later Planning Board subdivision actions provided evidence in support of a finding that no burial ground exists.

This is a regrettable – but not uncommon – outcome. It reminds us of the need for what Thomas Jefferson called “eternal vigilance” of our historic sites. It inspires us to identify all known burial sites, even those on which markers can no longer be seen above ground. The Shoemaker family and the Coalition to Protect Maryland Burial Sites, advocate for Statewide legislation since the 1990s, and Montgomery Preservation, instrumental in the County Council’s decision to pass local cemetery protection laws in 2017, are disappointed in this decision, which ended considerable efforts to protect this sacred ground over many years. They sincerely thank those, including neighbors, family members, and organizations, who contributed cash and in-kind services, to appeal the Circuit Court decision to the Court of Special Appeals.

The house at 5200 Murray Road was razed this summer. Unfortunately, although this family cemetery is listed in the Planning Board’s Burial Sites Inventory, it is not protected by Montgomery County law because it is not undergoing subdivision. County laws established the Inventory and now requires all cemeteries to be identified and considered throughout the subdivision process. On the other hand, once construction starts for a new residence, if any human remains are found, Maryland law provides certain protections, including a requirement to halt construction until the situation is sorted out. Maryland also encourages access by persons of interest and requires that the owner consult with the Maryland Historical Trust before moving forward with building plans. In addition, we believe the owner should accept his expert’s suggestion that an archaeologist be present during construction.

The Court of Appeals decision is “unreported,” meaning it does not establish any binding legal precedent, which we view as positive. The Court of Appeals decision may be found at: https://www.courts.state.md.us/sites/default/files/unreported-opinions/2401s19.pdf

Montgomery Preservation, Inc.
August 30, 2021

 

This wide-ranging, cutting-edge, urgent, amazing project is now complete, according to project director Eileen McGuckian.  Montgomery County Cemetery Inventory Revisited (MCCI-R) built upon a ground-breaking survey conducted from 2004 to 2009 to fulfill the urgent goal of advocates to compile an inventory of all local identified burial sites.  The Historic Preservation Commission awarded five small grants to Peerless Rockville, and Anne Brockett led volunteers to assemble lists, visit 263 identified sites, create a Microsoft Access database, GIS map, digital photographs, printed inventory forms, paper files at MCHS library, and site cover sheets available on Montgomery Planning website.  A brochure was produced, two conservation workshops were conducted for property owners, a Watch List listed endangered cemeteries, and recommendations were made for further progress.

Directed by Montgomery Preservation Inc. (MPI), MCCI-R significantly updates the data, technology, and accessibility of the earlier inventory.  Made possible by a mini-grant from Heritage Montgomery, additional funding for this project came from MPI, Peerless Rockville, and General William Smallwood Chapter SAR.

Between January and April 2018, staff conducted five training sessions to prepare 90 volunteers to visit all known burial sites in Montgomery County. Project volunteers (teenagers through senior citizens) assessed conditions, completed survey forms, acquired GPS coordinates, conducted additional research, and photographed the current environment. Volunteers braved overgrown vegetation, uneven ground, heat and humidity, snakes, and biting insects to survey their sites.  Current conditions and assessments were compared to the 2004 survey findings, and newly-discovered burial sites were added to the inventory. African American cemeteries became a particular focus, with 86 sites and multiple beneficial societies identified thus far.

All previous efforts were converted into Excel spreadsheets, new sites and ID numbers were added, all paper files at MCHS were scanned, FindaGrave links were updated new entries were created, most sites were personally visited, applications such as MCAtlas, MHT Medusa, GoogleMaps and more were utilized, and contact with volunteers continues to be maintained. The coordinators met with M-NCPPC personnel and the 2004-2009 coordinator to identify sites, review progress, and evaluate findings.

As a result of this project, solid new information is available on Montgomery County cemeteries:  Each survey contains additional fields (ownership, safety concerns, designation status).  New sites were added, some sites believed lost were found, and a few sites erroneously thought to be cemetery locations were removed from the list.  Another result—bolstered by two protection laws passed in 2017, effective in 2018—was more public and private attention to and concern about local burial sites.  This project has drawn accolades beyond Montgomery County’s borders.

The final report, submitted in December 2018, includes summaries and statistics derived from MCCI-R project, recommendations, next steps, and a variety of categorical lists.

On May 16, 2019, the Montgomery County Planning Board unanimously adopted the Montgomery County Burial Sites Inventory and Montgomery County Planning Board Guidelines for Burial Sites (PDF).

List of cemeteries by NAME
List of cemeteries by ID NUMBER
List of cemeteries by VICINITY
MCCI-R Final Report, Statistics, & Recommendations

Resources located at Montgomery Planning

 

 

 

Cemetery Research

Read “Where to Find Cemetery Information” to discover valuable resources for researching cemeteries.

Cemetery Protection Legislation

To read more about the cemetery legislation passed by the Montgomery County Council, see New Laws Will Help to Protect Montgomery County Cemeteries.

 

Historic Cemeteries Currently in the News:

 

  • River Road Moses Cemetery (#327), from which remains were removed in the late 1950s to make way for a high-rise building and stream management. This cemetery was documented by Little Falls Watershed Alliance volunteers and recognized by Montgomery Planning staff. Currently it is the subject of protests by members of nearby Macedonia Baptist Church concerned about additional remains and commemoration of the vibrant black community that once existed here.
  • St. Paul Community Cemetery (#140) in Sugarland, near Poolesville, where descendants and other volunteers have for the past two years been mapping and memorializing a community burial ground. This project follows years of Sugarland Ethno History Project work to document this 19th century black community, restore the church, and share this special place with the public. Recently, cobblestone markers were installed at the site of every unmarked grave that was located by ground penetrating radar (GPR) technology.

 

St Paul Community Church Cemetery: photos by Gwen Reese

 

  • Zachariah Waters family cemetery (#219) in Germantown, where the fenced burial ground contains a Revolutionary War patriot, is badly overgrown. The representative for the owner, which is in the subdivision development process, has denied access to Germantown Historical Society and other volunteers willing to clean it up.

 

Zachariah Waters Cemetery

Zachariah Waters family cemetery: photo by Tina Simmons

 

  • Isaac Shoemaker family cemetery (#324) on Murray Road in Bethesda, where a well-documented burial plot is threatened by a new owner’s refusal to acknowledge the history of this site.

 

Cemetery Preservation in Maryland

Coalition to Protect Maryland Burial Sites (CPMBS) is an all-volunteer non-profit formed in 1991 to combat a horrific situation in Howard County. Since that time, the Coalition has nurtured a state-wide network, dispensed information and support to local advocates, sparked changes to Maryland law, conducted workshops and annual gatherings, and helped solve problems. The Coalition’s session at the 2017 Montgomery County History Conference renewed interest in addressing issues at local cemeteries. They also chartered the Trader Foundation for Maryland Burial Sites that offers small grants for projects that will benefit cemeteries.

www.cpmbs.org | www.cpmbs.org/trader-foundation
Click here to see 5 years of Trader Foundation grant activities!

 


Preservation Maryland (PM), the state historic preservation non-profit, selected Historic Maryland Cemeteries as a 2016-17 preservation concern. During this year-long “Six to Fix” project, PM  worked closely with the Coalition to bring much-needed attention to neglected and abandoned burial grounds. PM helped the Coalition upgrade its website, sponsored a History Conference session, testified at the General Assembly on legislation, created a PreserveCast, supported the Coalition’s statewide conference in April 2017, and partnered in a successful volunteer documentation-conservation-clean-up day in Charles County in October 2017.

www.preservationmaryland.org

 


Maryland Historical Trust (MHT) is the state agency responsible for historic preservation and archaeology. MHT is concerned about all historic properties and recognizes that many Maryland cemeteries are endangered as well as significant. Through MHT the African American Heritage Preservation Grant Program is available, which has in recent years made substantial grants to properties that include cemeteries.

mht.maryland.gov

 


Maryland General Assembly plays a vital role in cemetery protection and preservation. Some State laws are on the books—prohibiting desecration, authorizing access, requiring approval to move graves, and creating the Office of Cemetery Oversight—but there is room for improvement. A new cemetery preservation bill will be introduced in the 2018 session. To become an advocate or make suggestions, contact Eileen McGuckian at phileen3@verizon.net

Save Isaac Shoemaker Cemetery

“SAVE ISAAC SHOEMAKER CEMETERY” is an MPI non-profit fund earmarked for legal efforts to protect the endangered Isaac Shoemaker burial site in Chevy Chase. Shoemaker descendants are appealing a Circuit Court decision that did not protect this well-documented cemetery as required by law. Now on suburban lots, the hilltop plot was used 1845-1883 by the family that farmed here for a century.

MPI and the Coalition to Protect Maryland Burial Sites are supporting the family via an amicus brief, and the Coalition committed $5,000 to start a legal fund. MPI’s Wayne Goldstein Fund was established to protect historic sites through public action. Tax-deductible donations are accepted via check payable to Montgomery Preservation, memo line “Save Isaac Shoemaker Cemetery” and sent to PO Box 4661, Rockville, MD 20849, or via PayPal using the form below.

More information is available from Eileen McGuckian 301-468-7331 or through mpi@montgomerypreservation.org

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