Academic journal article Boston College Law Review

Discriminating against the Dead: How to Protect Muslim Cemeteries from Exclusionary Land Use Mechanisms

Academic journal article Boston College Law Review

Discriminating against the Dead: How to Protect Muslim Cemeteries from Exclusionary Land Use Mechanisms

Article excerpt

INTRODUCTION

In 2016, the Islamic Society of Greater Worcester ("Islamic Society") purchased a fifty-five acre plot of farmland in the small town of Dudley, Massachusetts.1 The Islamic Society intended to convert the plot into a burial ground where members could bury their dead according to Islamic tradition.2 In Islamic tradition, Muslims must be buried in their own cemeteries.3 The only other Muslim cemetery near Dudley, Massachusetts is located in Enfield, Connecticut, which is over sixty miles away.4 This is a far distance for Islamic Society members to travel to bury their dead, posing additional challenges for them to follow Muslim burial procedures.5 The fifty-five acre plot of farmland was therefore a prime location to construct a much closer Muslim cemetery.6 The process for converting that plot of farmland originally appeared as easy as buying the land and getting a permit to build the cemetery, but instead turned into a year-long fight between the Islamic Society and the town of Dudley ("Dudley"), attracting national and international attention.7

The fifty-five acre plot proposed for the construction of a cemetery was zoned as a residential area.8 Dudley law therefore required the Islamic Society to apply for a special permit to construct the cemetery.9 It was clear that the Islamic Society would face an uphill battle from the start of the special permit application process, an initial hearing on February 4, 2016 in front of the Dudley Zoning Board of Appeals ("Dudley Zoning Board").10 Many Dudley residents attended the hearing to express their concerns and objections to the cemetery.11 For example, one Dudley resident explained, "I really don't want to see any cemetery here . . . it's quiet and I'd like to keep it that way."12 Other residents expressed health concerns over possible contamination of the town's ground and well water due to the Muslim practice of burying the dead directly in the ground instead of in caskets.13 Other residents expressed more general concerns about the Islamic Society's Muslim identity.14 The Islamic Society emphasized that they were fellow Massachusetts residents simply looking for a place to bury the dead in their community.15 Moreover, as a religious organization, the Islamic Society argued that Massachusetts state law exempted it from municipal zoning ordinances and, therefore, the Dudley Zoning Board had to approve the cemetery proposal.16

At a second hearing on March 3, 2016, the Islamic Society's troubles continued. 17 Dudley residents once again expressed their opposition to the proposal; Town Administrator Greg Balukonis commented that the proposal had no public benefit and "provided no tax revenues, jobs[,] or recreational opportunities" to the town.18 Other residents took issue with the Islamic Society for being an outsider to the community; one Dudley resident explained "[t]hey don't live in Dudley, they're not bringing anything into Dudley. They're not going to pay taxes in Dudley. They basically just want to buy a piece of land and utilize it for whatever they want to do."19 The Islamic Society reiterated that, because the cemetery was intended for religious use, it was protected under the Dover Amendment and the Dudley Zoning Board could not deny the special permit.20 Town Counsel Gary Brackett cautioned that the cemetery proposal might not be exempt from zoning ordinances, arguing that the cemetery might actually be a commercial- and not a religious-use.21 Furthermore, Brackett pointed out that Massachusetts law prohibited burial ground constructions without permission from the town and the board of health.22 The Dudley Zoning Board denied the Islamic Society's application for a special permit, but asked for another proposal providing more details about the cemetery and its potential impact on the land and the surrounding neighborhood.23

At yet another hearing on April 7, 2016, the battle between Dudley and the Islamic Society continued.24 Town Counsel Gary Brackett once again questioned the cemetery's characterization as a religious use of the land. …

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