Old bones found - and nobody's in charge

One in an occasional series exploring the state of historic preservation in Philadelphia. 

It may not be every day that old bones are unexpectedly dug up in Philadelphia. But it's hardly unheard of - and that's exactly what happened at the end of September during construction of a 25-unit Old City residential complex.

A contractor for PMC Properties hit a snarl of bones and gravestones in the ground while working on a building foundation and parking garage.

According to Christopher Del Brocco, site manager for the project at 218 Arch St., an "anonymous caller" informed police, who then contacted the Medical Examiner's Office.

Digging stopped.

The ME determined that the bones were historic, and archaeologists identified them as probable remains from the old First Baptist Church Burial Ground, established in 1707, one of the first cemeteries in Philadelphia.

The state Historical and Museum Commission, the city Department of Licenses and Inspections, and the Philadelphia Historical Commission were all informed by the medical examiner.

All agencies said there was nothing they could do; all said they lacked jurisdiction in the matter.

Digging resumed.

Such can be the state of historic preservation in Philadelphia, a city that enacted a historic preservation ordinance in 1955 to protect one of the nation's richest troves of historic, architectural, and archaeological resources.

No official directives were given to the developer, PMC, or the contractor, Fastrack Builders. The First Baptist Church was not informed.

The Old City Historic District designation did not apply, according to the historical commission. The Historic Burial Places Preservation Act of 1994 did not apply, according to state officials.

Del Brocco, the site manager, said "the city" simply told him to "make sure to rebury the bones" when excavation was complete.

"They are still actively desecrating this cemetery, this historic cemetery, and nobody seems to care," said Douglas Mooney, president of the Philadelphia Archaeological Forum, an advocacy and educational organization. "They are desecrating the founding fathers and nobody gives a damn. It's a disgrace."

Attorney Mark Zecca, who represented the Philadelphia Historical Commission for many years when he was a member of the city Law Department in the 1990s and 2000s, strongly criticized all agencies.

"This is wrong," said Zecca, now in private practice. "They should have secured the site, not disturbed the bones, issued a stop-work order, and gone to court. Orphans Court has jurisdiction. Interested groups should have been notified so they could attend court hearings. The historical commission might have had the authority to convene a hearing."

As of last week, no city agency had contacted First Baptist Church. The church sold its Old City property in the mid-19th century, and now leases quarters at 17th and Sansom Streets. Roy Harker, operations administrator for First Baptist, said the burial ground was supposedly removed to Mount Moriah Cemetery in 1859. He said the church retained no records of interments.

"First Baptist at this point is a pretty small congregation," Harker said. "We don't have the resources to do anything."

PMC said they did exactly what city authorities suggested - retain the bones for reburial.

"They're being dealt with according to how they were instructed to be dealt with by the city of Philadelphia," said Jonathan Stavin, a PMC executive vice president.

"It doesn't fall under anyone's jurisdiction," said Karen Guss, spokeswoman for L&I. "So it's up to the developer to determine how to move forward. We are in touch with the developer about how to proceed."

"As soon as they saw bones, the historical commission and L&I should have informed them to go to Orphans Court and should have informed them about getting an order from the court," said Zecca. "It's for everyone's protection. The historical commission should have known there are special laws for dealing with a burial ground. Geez. Between Second and Third on Arch? Man, you're talking the Betsy Ross House. You're talking Christ Church. You're talking about so much."

Del Brocco said only the medical examiner and an L&I inspector actually showed up on site.

Howard Pollman, spokesman for the state museum commission, which has wide-ranging authority in preservation matters, said no one has contacted his office except for the city's medical examiner. "Not the city, not the historical commission, not L&I," he said.

He said the burial ground preservation act applies only when remains are disturbed in public projects. The 218 Arch St. site is a private development, he said.

Zecca pointed out that the contractor probably did not have a permit for re-interment of bones.

"The fact that a permit [for construction] was issued is of no relevance," Zecca said. "The permit wasn't issued to disturb a burial ground. If they've discovered a surprise burial ground, L&I should issue a stop-work order."

Jonathan Farnham, executive director of the historical commission, said the commission has no authority in the matter.

"The Historical Commission had no legal authority to compel the developer to stop construction and investigate the human remains," Farnham wrote in an email, noting that the burial ground lay beneath "an undeveloped site," limiting commission power.

Moreover, he said, the existence of a burial ground was not "new" information. It was discussed at a September 2015 commission meeting.

At that meeting, he said, the commission was informed of the burial ground and told the remains had been re-interred in Mount Moriah Cemetery a century and a half ago.

The "new information," Zecca noted, is that bones have been discovered.

"It should have jumped out that remains may be there," Zecca said.

Paul Steinke, executive director of the Preservation Alliance for Greater Philadelphia, said that "in a city as historic and old as Philadelphia, we should have a professional archaeologist on the staff of the Philadelphia Historical Commission. ... In order to fulfill the historical commission's mandate, they really need professional help."

Steinke also criticized the commission's current operating rules and regulations as confusing.

"We need to take a look at the regulations because current rules are unclear," he said.

In the meantime, an undetermined number of human remains and gravestones are accumulating at 218 Arch St. Del Brocco is placing all "in a box" for safekeeping on the site - as he said he was instructed to do by "the city."

All officials contacted denied offering such advice, although a spokesman for the state museum commission said it is not unheard of for developers to be told to rebury remains on site.

That is what will happen, Del Brocco said. They will rest at the bottom of the building excavation, with the concrete floor of the parking garage.

"They'll be there forever," he said.

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