QUESTION: The congregation has owned a large tract of land as designated for use as a cemetery and a major segment of it has been developed. Approximately half of that has been used for burials. Now the congregation wishes to know whether the undeveloped tract of land may be sold. Is this considered sacred ground and part of the cemetery? (Dorothy Weiss, Colorado Springs CO)
ANSWER: Cemeteries and the places in which our dead were interred long held a special sacred place in Judaism. This began with the family burial site which Abraham selected for Sarah. The Cave of Makhpelah (Gen. 23; 25.9; 49.31; 50.13). Later on we find that the Kings of Israel had their own burial plots (II Kings 13.13; 15.7). The custom of family burial sites continued on into the period of the Talmud (B B 100a, B; San 47a; M Shek 2.5; Erub 5.1). Throughout this period communal grave sites were also used (II Kings 23.6; Ger 26.23; Hag 3b; Nid 17a; Sem 49b). All of these cemeteries and those discussed in later literature were communal and it was the obligation of the entire community both to establish the cemetery and then to care for it appropriately (Ezekiel Landau Noda Biyehudah I, Yoreh Deah #89; Isaac Spector Ein Yitzhoq Yoreh Deah #34). The land was considered sacred and no profane use of it could be made. However, it was only matters directly related to graves from which no one was allowed to benefit (Shulhan Arukh Yoreh Deah 368.2 and commentaries). Of course, the cemetery was to be protected and even if Jews moved away from the community it was to be looked after by a neighboring community (Greenwald Kol Bo al Avelut pp 164; Moshe Feinstein Igrot Mosheh Yoreh Deah #246). Furthermore, we should note that there are many customs which have risen around the cemeteries care and most of the tradition which surrounds cemeteries is minhag.
The sale of a section of a cemetery was very rarely discussed. Generally once a piece of land had been acquired for use as a cemetery and an internment had taken place, it acquired a special status and so needed to be treated with respect. This was true of both the area in which internments were taking place and sections which remained vacant (Meg 29a Shulhan Arukh Yoreh Deah 368; Moses Sofer Responsa #335). There is some disagreement among the more recent Orthodox authorities but the sale of a cemetery or sections of it which will not be used for burial. Abraham Gumbiner permitted it (Magen Avraham to Orah Hayim 153.12), while the German authority David Hoffmann prohibited it (Melamed Lehoil Yoreh Deah #125).
In a large number of American cities we are faced with a somewhat different situation than those of Central Europe. In many communities small congregations, founded late in the nineteenth or early in the twentieth century by groups of immigrants, quickly established cemeteries. As they often were able to acquire only the cheapest and most inaccessible pieces of land, these cemeteries are on hillsides and steep ravines or in other areas difficult to reach. Furthermore, many of these congregations were forced to move as neighborhoods changed, and if they did not have the means to do so were simply closed and the cemetery abandoned. It is clearly the responsibility of the rest of the community to look after these cemeteries, but it is not their responsibility to retain all the land originally designated for cemeteries. As the American cities have grown and as modern technology has made formerly inaccessible sites available for use, the land originally designated for these cemeteries has frequently risen in value. It would be perfectly appropriate to sell unused segments of these cemeteries in order to provide necessary care for the sections in which burials have taken place. This is an appropriate use of the cemetery land and would be in keeping both with tradition and with the original intent of the founders of the cemetery.
In your instance you are faced with other American phenomenon with congregations acquiring large tracts of land, and then discovering for a variety of demographic reasons that they may now wish to dispose of it in order to maintain the remainder of the cemetery, to help with congregational projects, and to limit the amount of land for which they must care. Those areas in such cemeteries which have remained wild and totally undeveloped may be sold while those areas which have already been developed and therefore really designated for cemetery use are to be considered part of the actual cemetery and may not be sold.
Generally if the congregation is substantial and the cemetery is in a protected area where there is no danger to the graves, then even large plots of land should continue to be held for the more distant future. My own congregation in Pittsburgh holds such a very large area, probably sufficient for burial for several centuries, and it would be appropriate unless circumstances change drastically to continue to retain this land and use it for burial sites as originally intended.
We may then summarize that it is preferable for a congregation to continue to use lands designated for that use unless there is a very good reason for the sale of a portion of this land. It may then be sold and the funds derived from it should be used for the care of the cemetery or an allied religious purpose.