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