Typically few, if any, people come to Pennington Borough’s Planning Board meetings, but seats were filled and tensions were high as attendees waited for the board’s ruling on whether to grant an extension of time for J&M Schragger LLC to file a Minor Subdivision Deed on its 417 South Main Street property. Though the request was more of a formality, as Municipal Land Use Law NJSA 40:55D-21 mandates the extension, several supporters of the Pennington African Cemetery Association (PACA) spoke out against ruling in favor of the corporation. In the end, a six month extension was granted.
In 1863, African American residents of Pennington purchased land adjacent (serving as a long driveway) and a large plot of land behind 417 S. Main Street. The purpose of the land was to create access to a cemetery they built for African American residents who were prohibited from burial at white cemeteries. Though the Pennington African Cemetery (PAC) is no longer an active burial ground, it is revered by its volunteers who are members of the Pennington African Cemetery Association (PACA) and who maintain the fenced-in area and its driveway.
For at least the past 60 years, owners of the home at 417 S. Main St. had been informally allowed to use the driveway in order to park behind their home. In return, the homeowners cut the cemetery’s grass and removed snow from PAC’s driveway.
John and Michelle Schragger (owners of J&M Schragger, LLC) purchased the home at 417 S. Main St. for their own residence, in April 2016, intending to then subdivide the back half of the lot, which borders PAC, for development and resale. Both lots would require use of PAC’s driveway in order to park behind the homes, so a formal easement, allowing its use, was sought from the cemetery association.
At the June Planning/Zoning Board meeting, the board approved the applicant’s request for a minor subdivision, with the requirement that a legal easement be obtained from the cemetery association. With easement in hand, the applicant would then be required to file a minor subdivision deed, 190 days from June 8th.
Though efforts were made to agree on easement terms, Angela Witcher, on behalf of PACA, notified the applicant on July 7th that they would not grant an easement. In response, on August 11th, the applicant filed a lawsuit against PACA, as well as individually against sisters, Angela and Susan Witcher. The suit is scheduled for hearing at Mercer County’s Superior Court in March.
At the December Planning/Zoning Board meeting, just shy of the 190 day deadline, the applicant requested an extension to file the minor subdivision deed in hopes that they are granted the easement in March.
At the May Planning/Zoning Board meeting, Susan Witcher, a member of the Pennington African Cemetery Association, happened to be in attendance and was asked to testify on the status of the easement. At the December meeting, her sister Angela testified that Susan was unprepared to speak for PACA and unfamiliar with the legalities being discussed. Susan’s testimony was pivotal in the board’s decision to grant the applicant’s application for the subdivision.
PACA has no formal leadership. Over the course of the past eight months, questions of who has the authority to speak for the organization and sign legal documents have repeatedly been asked without clear answer. Though PACA retained a lawyer in the spring to guide them through that issue, the attorney apparently did not fully represent PACA’s wishes in regards to discussions about the easement with the applicant. Instead, the attorney drafted a letter outlining general terms needed for an easement to be possible in the future and asked for money upfront, something like a promise ring. According to Angela Witcher’s December testimony, PACA never considered granting an easement.
The applicant claims that its corporation purchased the property based on assumptions made that an easement was forthcoming, and proceeded with the purchase with the aim of subdividing the lot.
While it may be unfortunate that the applicant believed they would be granted an easement, PACA asserts that there was no indication on the part of PACA that they would be amenable to one. Events did transpire that led them in this thinking.
Instead of parting ways, albeit unhappily, the applicant seeks compensation for lost wages on their potential investment property in upwards of $20,000. If damages are awarded, Witcher sisters indicate that this would most likely bankrupt them personally and make any upkeep of the cemetery impossible.
The issue is not merely about a piece of paper, the easement, but about Pennington’s African American community feeling unheard and unprepared to fight the legal system, according to many vocal members of the community. PACA had an informal relationship with the prior neighboring property owners, allowing them to use their driveway to access the back of their lot. However, the association adamantly denies an interest in waiving legal rights of their driveway. If an easement is forced by the courts, the sisters and cemetery would potentially have to obtain a lawyer for every facet of the litigation, resulting in a high cost to PACA, an organization that has very little resources.
To help with PACA’s many needed projects (i.e. stabilizing leaning and overturned headstones, leveling sunken graves, and placing headstones on unmarked graves) or contribute to their legal defense, go to PACA’s GoFundMe page.