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Proposed land donation could adversely affect historic cemetery

Tuesday, December 20, 2011 by Josh Rosenblatt

Longtime owners of property in the Montopolis neighborhood saw their plans to donate some of their family’s land to the City of Austin hit a snag at the Dec. 8 Council meeting.

The property, which is located on Bastrop Highway South, abuts the Burditt Prairie Cemetery, a historic African-American cemetery dating back to the 1850s, and caretakers of the cemetery are concerned that portions of the land the McElhenney family hopes to transfer to the city could contain burial sites.

This issue arose as part of a two-item zoning case Council took up concerning approximately 15 acres of the McElhenney property, rezoning the property as commercial and changing the future land use map (FLUM) from Single Family to Commercial in the Montopolis Neighborhood Plan.

Both the FLUM change and the rezoning would allow for commercial development along Bastrop Highway leading to Austin-Bergstrom Airport.

According to the applicant’s representative, John Donisi of Winstead P.C., the largely undeveloped land is “attractive to dumping and criminal trespassing,” so in summer 2010, the McElhenney family met with the Parks and Recreation Department and the Watershed Protection Department to discuss positive uses for the land, including donation to the city for public use.

In fall 2010 the family suggested donating 24 acres to the city – five acres to PARD and 19 acres to Watershed Protection Department on the condition that public access be allowed.

At Thursday’s meeting, representatives from the Burditt Prairie Cemetery Association showed up to throw cold water on the family’s plans. Association Member Fred McGhee told Council that, while his group supports the donation of land to the city by citizens, the donation to PARD of land abutting the cemetery could prove problematic.

“The five-acre tract you’re considering accepting has burials in it now. That is an established fact,” said McGhee, a professional archeologist. “Burditt is a cemetery still in use.”

McGhee said that by accepting the land donation, the city would be accepting the responsibility of managing a portion of the Burditt Cemetery, meaning the city would have to comply with all applicable state and federal laws, health and safety codes, and the antiquities code in administering the land as parkland.

“Historic cemeteries don’t have respect for deed boundaries, modern deed boundaries in particular,” said McGhee. “This cemetery dates back to the 1850s and contains the remains of former slaves. … (It is) important also because it has really good research value from the standpoint of archeology and our understanding of African-American mortuary practices, African-American responses to enslavement and then emancipation.”

McGhee said his group could only support the land transfer if the city agreed to do an archeological study of the tract, which could run into the low six figures. “We don’t know the boundaries of the cemetery. The time has come to do an excavation,” said McGhee.

In a letter sent Dec. 6 to the city’s Neighborhood Planning and Zoning Department,  Montopolis Neighborhood Plan Contact Team Vice-Chair Susan Almanza wrote that her group supported both the FLUM change and the rezoning and, like McGhee, requested that an archeological study of the plot that is adjacent to the Burditt Prairie Cemetery be conducted.

The turn of events presented a problem for Council members looking to accept a generous donation of land without upsetting a historically significant site. For example, Council Member Chris Riley pointed out that McGhee’s suggestion to have the city transfer the deed over to the cemetery association wouldn’t work because voter approval is needed to convey parkland to come other entity.

In addition, time was a factor for the applicants.

“As of Jan. 1, the family will incur additional tax liability on these tracts,” said Donisi. “Our goal to get this done by the end of the year.”

After Council Member Laura Morrison expressed her support of the McElhenney plan but a strong desire to not have the city’s hands tied by the decision to accept their land donation as dedicated parkland (which is generally a restrictive situation), City Property Agent Junie Plummer said that Council could vote to approve the changes and still send the donation issue back to PARD for discussion over what to do with the land abutting the cemetery.

“We don’t normally bring a donation back to Council,” said Plummer. “We certainly can bring it back. This will not interfere with the zoning case.” She said the donation would still require a survey, an environmental site assessment, review of the deeds, and title closing, meaning time is, for a brief moment, on the city’s side.

That was enough for Council members, who voted 7-0 in favor of both the FLUM change and the rezoning.

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