The legal agreement regarding Cemetery Fields in Amherst

To the Editor:

It appears from comments made at the Candidates Night on Feb. 12, that some still think that the Forestview purchase and sales agreement and the Forestview warranty deed do not mention that the land was to be used for a cemetery. I write to say that these documents do state that it was to be used as a cemetery, and I also include a confirmation letter, attached online, from Terry Knowles, of the office of the attorney general, Charitable Trust Unit.

1. The Purchase and Sales Agreement executed on June 30, 1993, states in Paragraph 1: THIS AGREEMENT made and entered into this 30th day of JUNE, 1993, between OLIVER F. MERRILL and GENEVA M. MERRILL of Merrimack Road, Amherst, County of Hillsborough, State of New Hampshire (hereinafter referred to as SELLERS) and TRUSTEES OF THE TRUST FUND OF THE TOWN OF AMHERST and THE SELECTMEN OF THE TOWN OF AMHERST, as well as the CEMETERY TRUSTEES OF THE TOWN OF AMHERST, Amherst, County of Hillsborough, State of New Hampshire (hereinafter collectively referred to as BUYERS).

A. Further, Paragraph 3:

WHEREAS the BUYERS are desirous of acquiring this parcel for future use as a cemetery consistent with RSA 289 and RSA 290 or other town purposes; and

B. Further, Paragraph 4:

WHEREAS the BUYERS do not anticipate utilizing this parcel for cemetery purposes for approximately ten years, and until such time that said parcel is needed for said cemetery purposes, BUYERS intend to permit the TOWN OF AMHERST to utilize the property for playing fields, and other such town purposes as the town meeting may direct, (except that the property shall not be utilized as conservation land or otherwise come under the control and management of the Conservation Commission), in consideration of the TOWN OF AMHERST maintaining the said parcel.

C. Further, Section Three, Part C:

It is understood and agreed to by the parties that the source of funding for this purchase are monies held by the Trustees of the Trust Fund of the Town of Amherst in an account that contains accumulated excess trust income from perpetual care trust accounts and that expenditure of said monies for this purpose is authorized by NHRSA 31:22-a, as well as a stipulation entered into between the Trustees of the Trust Funds and the Director of Charitable Trusts of the Office of the Attorney General of the State of New Hampshire, which stipulation is dated July 20, 1992, and has been approved by the Hillsborough Superior Court on August 31, 1992, in the matter of Town of Amherst Board of Trustees of Trust Funds v. Director of Charitable Trusts, Docket Number E-3438.

2. The Warranty Deed executed on August 19, 1993, by Oliver and Geneva Merrill as seller, when the final payment for Forestview/Cemetery Fields was paid in full as stated in the first paragraph: “KNOW ALL MEN BY THESE PRESENTS THAT, we, OLIVER F. MERRILL and GENEVA M. MERRILL, husband and wife, of Merrimack Road, Amherst, County of Hillsborough and State of New Hampshire for consideration paid grant to TOWN OF AMHERST, by and through the TRUSTEES OF THE CEMETERY a municipal corporation in the County of Hillsborough and State of New Hampshire.”

3. Attorney General Letter of Confirmation

To further confirm that the parcel of land was bought for cemetery purposes, below is Paragraph 3 from a letter written by Terry Knowles, Attorney General Charitable Trust Unit, dated May 2, 2001, which makes it crystal clear that the land is for cemetery purposes.

“The Cemetery Fields property was purchased with private funds resulting from a cy pres petition granted by the Hillsborough County Superior Court in the 1980s. These funds represent the accumulated unexpended income from individual perpetual care funds, identified by the Court as “excess” but which, under the court order, may be used for general cemetery maintenance, expansion and capital improvement. The court in subsequent order authorized the town of Amherst to buy the Cemetery Fields land for future cemetery expansion. The land is therefore legally bound to be utilized for a specific purpose – cemetery expansion.

“The continued expansion of this property for recreational use is contrary to the aforementioned orders issued by the court. The Attorney General has the common law and statutory duty to protect and enforce charitable trusts. This letter is to give notice to the Town of Amherst that no further expansion of recreational or other noncemetery use is to take place on the Cemetery Fields property without prior authorization from the Attorney General and the Hillsborough Probate Court.”

PETER F. BERGIN

Chairman Amherst Cemetery Trustees