Town officials on Tuesday approved payment of more than $8,300 in legal fees incurred during the month of November regarding the proposed terrace at God’s Acre.
With the the Board of Selectmen’s 3-0 vote to pay the legal bill, the God’s Acre-related fees now total more than $15,500 in the current fiscal year, records show.
The town in September hit a roadblock regarding plans for a year-round flagstone terrace at the top of God’s Acre when the Congregational Church of New Canaan asserted that it has legal rights to the property as its own church cemetery.
First Selectman Kevin Moynihan has called for the question of who owns God’s Acre to be resolved, though it’s unclear whether he’s still pushing for the town to establish ownership in the face of church opposition.
Selectman Nick Williams asked about the newly legal fees, which appear to have been incurred throughout November, even after the church had made its position clear.
“What is the nature of that?” Williams asked, referring to the $8,289.50 charge issued by the town attorney’s firm, Berchem Moses PC.
Moynihan said in response, “Well, you know have been researching, Nick, and I have encouraged both you and [Selectman] Kathleen [Corbet] to talk to the town attorney.”
When Williams then noted the fiscal year-to-date costs, saying he “just was wondering,” Moynihan responded, “I would encourage you to talk to town attorney, as Kathleen has.”
According to an itemized list inside the bill, town officials between Nov. 2 and 30 held multiple telephone calls with attorneys—those calls included Moynihan and Tucker Murphy, who is a member of the first selectman’s staff as well as a committee that introduced its plans for the permanent terrace nearly two years ago—preparation of legal memoranda, review of deeds and statutes, research and conferences.
The God’s Acre line item is the single most-expensive item in the legal bill, after a $8,500 monthly retainer. The town attorney’s firm charged New Canaan $185 to $235 per hour for its services. The total of the November bill was $40,000.
The original purpose of the group of volunteers being the terrace had been to ensure that the practical needs for putting on the Christmas Eve caroling—such as lights on the tree, bandstand, barricades, power and songsheets—were met, even after a local family that helped organize it, the Hersams, pulled out after selling their weekly newspaper to Hearst Corporation.
The committee formally introduced its plans for the permanent terrace in March 2019, appearing before the Historic District Commission. That same month, at least one member of the Congregational Church contacted the town with concerns.
An email that Bill Gardner (a retired attorney) sent to Moynihan on the morning of March 22, 2019, said, in part, “Kevin, I am concerned about rumors of a proposal to build a permanent structure on God’s Acre. God’s Acre is the ‘former’ cemetery of the Congregational Church of New Canaan, formerly known as Canaan Parish. All of the tombstones [but not the bodies] were relocated to at least two other cemeteries (Parade Hill and Lakeview), but according to Janet Lindstrom, there is strong evidence to suggest that remains of human bodies are still in the ground at God’s Acre. Disturbance of a cemetery, as I understand it, is forbidden under Connecticut law.” Gardner also raised the ownership issue.
Moynihan tapped a title searcher and historian to look into it. On that same afternoon of March 22, 2019, Andrew Melillo responded that a 1773 deed shows the town owns God’s Acre, adding that it is “very likely” that there are burials there. More than one year later—on Aug. 19, 2020, weeks after Garner’s email stating the church’s position—Moynihan forwarded Melillo’s research to the tax assessor. That’s when the “owner” designee on the tax assessor field card changed from “cemetery” to “Town of New Canaan.” Asked about it, Moynihan said he hadn’t instructed the assessor to make that change.
Christmas Eve caroling at God’s Acre dates back 1916 and was started by the league Civic League, according to the historical record. Regardless of the outcome of the terrace proposal, the caroling itself is not in jeopardy of ending. In a June email to the first selectman, the church’s pastor said, “[W]e appreciate the partnership we have with the town and the community, and we want to continue working together.” Though caroling was canceled this year due to the COVID-19 pandemic, the Congregational Church held four outdoor worship services under a tent, where participants wore masks and social-distanced.