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Tue, Jul 22, 2014

Judge approves BZA mosque cemetery

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A Davidson County judge Thursday upheld a decision by the Rutherford County Board of Zoning Appeals allowing burials at the Islamic Center of Murfreesboro site.

Senior Judge Paul Summers, who heard the matter after all local judges recused themselves, dismissed a case filed by a group of residents opposed to the county-approved cemetery just off Veals Road at Bradyville Pike.

“The Rutherford County Board of Zoning Appeals did not act illegally, arbitrarily, or capriciously by approving the special use exception permit for the cemetery,” the judge concluded.

The judge found that the petitioners, led by Bonnie Golczynski, showed “no distinct and palpable injury” and, therefore, had no standing.

Summers also ruled that the BZA complied with adequate notice requirements for the Open Meetings Act for December 2013 and January 2014 meetings. He concluded that a special use permit issued for the Islamic Center of Murfreesboro is valid and denied the petitioner’s request for the BZA to rehear the matter.

In addition, Summers dismissed all other claims of the petitioners and assessed them court costs.

Opponents contended, among other things, that the cemetery site is too close to nearby homes and sits in a low-lying area prone to flooding. They also say it will create extra traffic congestion in the area.

Lou Ann Zelenik, a spokeswoman for the petitioners, said she researched five years of BZA decisions and found that the board had turned down other requests because of concern about flooding.

Zelenik said she also had the elevation shot for Bradyville Pike and found that it should have a turning lane based on Tennessee Department of Transportation regulations.

“(The BZA) didn’t address any of the issues,” she said after the judge announced his decision.

Zelenik presented minutes from a May 2011 BZA meeting that showed a cemetery request by another church, St. Elizabeth Orthodox Church on Stewart Creek Road, was deferred because of concerns about flooding and the need for a community meeting.

She also contended that BZA Chairman Zane Cantrell said the board had to approve the ICM request or it could be sued.

Assistant County Attorney Evan Cope said afterward, “The county is certainly pleased the court supported the decision of the BZA and found it acted lawfully. …”

In December, the county BZA asked that the ICM provide information about the construction of a turning lane on Bradyville Pike onto Veals Road and soil samples from the site.

In January, the BZA approved the burial site after looking at information from a geotechnical study taken before the county planning commission approved a site plan four years ago and a traffic analysis by the state Department of Transportation done after site plan approval.

The county BZA also placed five stipulations on the ICM cemetery: 1) that grave sites be limited to 1,500; 2) that no monument be taller than a foot; 3) that no grave be deeper than 5 feet; 4) that the special exception would expire if the property were sold to a non-religious entity; and 5) the cemetery layout and gravesite records would have to be kept by the ICM.

Initial planning commission approval in 2010 led to a protracted lawsuit in which mosque opponents challenged whether the county provided adequate public notice of the planning commission’s vote. Chancellor Robert Corlew ultimately ruled against the county, but a federal judge reversed his decision and allowed the ICM to occupy its building.

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