It is a peaceful place, with long grass and wildflowers blowing gently in the breeze under about a dozen trees in a section of a field not too far from Highway 403.

But there is tension, too, in the field behind modern two-storey homes off Cottonwood Court. A black-and-red No Trespassing sign hangs from one tree. Six-year-old earth scrapings that led to the tension can still be spotted through the tall grass.

Developers working on the field as part of a larger 40-home subdivision found -- to their surprise -- that it contained a cemetery with more than 100 bodies dating back to the early 1800s.

An Ontario Municipal Board hearing into that subdivision is scheduled to unfold over 12 days starting Oct. 19. It will pit the rights of land owners against the rights of those who first settled in Ontario after the American Revolution.

Settlers such as Richard Hatt, who opened a mill in 1800 in an area that grew into the Town of Dundas. He was buried in 1819 at the age of 50.

His namesake, Richard Hatt, 63, of Fonthill, is a retired Bell Canada manager who had periodically visited the Ancaster graveyard but stopped four years ago after being repeatedly confronted by the property owner and told he was trespassing.

At other times he got the owner's permission, such as when he brought officials from the Ontario Historical Society to the site off Mohawk Road West, in between Lime Kiln Road and Greenravine Drive.

"He's certainly told me in the past to get off because it is private property," said Hatt, a former Town of Pelham councillor. "I've told him 'I'm paying my respects to my descendants so bugger off.' That's what I've told him. He doesn't threaten to call the police ..."

The tension is likely to burst forth this fall when the developers move ahead with their plans to build the subdivision, plus a road connecting Lime Kiln Road and Greenravine Drive. The developers have won the right to put their case before the OMB after failing to strike a deal with descendants of the pioneers to relocate some of the remains and getting the City of Hamilton to consider a draft approval.

The OMB hearing at the former Flamborough Town Hall is slated to involve 20 participants, ranging from lawyers, heritage officials, family members, area residents and a planner from the Niagara Escarpment Commission.

The developers are aiming to dig up about one-third of the remains in the cemetery, rebury them with the other remains, fence it off and mark it as a pioneer cemetery. The cemetery stretches over two proposed residential lots, plus the road link.

The Cooley family cemetery (also called the Hatt-Cooley cemetery) was first fully investigated by an archeological firm in the fall of 2004. The cemetery was believed by some to be just a family cemetery and contain half a dozen bodies, but the firm found it contained more than 100. Dundas founder Richard Hatt is buried in the cemetery because his wife Mary Kate (1780-1843) was a Cooley. Hatt's gravemarker was relocated from Ancaster to the Grove Cemetery in Dundas in 1967 in a ceremony attended by family members.

"This cemetery is clearly much more substantial than a family cemetery," Amick Consultants Ltd. said in a report. "The quantity of the persons buried at the cemetery and the inferred period of use (1786-1824) suggests that this is likely the original cemetery for the Ancaster Community."

It continues, "The Cooley Cemetery is clearly a significant heritage feature of great archeological and historical interest. As a pioneer cemetery established by the United Empire Loyalists (it) is one of the earliest surviving Euro-Canadian cemeteries in the Province of Ontario."

The cemetery is believed to have faded into obscurity after a graveyard was created beside St. John's Anglican Church about 1824. It was registered in late 2005 as an 'Unapproved cemetery' by the Ministry of Government Services. This meant that it was protected and nothing could be done to it until what is called a Site Disposition Agreement was reached between the landowners and descendants.

Sergio Manchia, a planner working for Sulphur Springs Development Corp., said his clients appealed to the OMB at the end of 2009 under a section of the Planning Act because it did not agree with the City of Hamilton's position they have to have a Site Disposition Agreement before it can proceed with a draft plan approval. His clients include landowner Ken Martin and developers Tom Weisz and Nick Carncelli.

Manchia said while the land remains zoned agricultural, he said it was designated for urban development.

"I think everyone knows if there was not a cemetery there, there would be a subdivision there," Manchia said. "Did anybody know there would be this matter in hand? No. It came after the fact ... Clients don't go out and buy swamp land in Florida. When you cross that bridge and all of a sudden you are involved in a situation that involves all this, you pretty well have to proceed and try and mitigate these issues."

Hatt is calling on the provincial government to protect the cemetery. He said all the developers would have to do is shave off two lots from their subdivision plan to maintain the cemetery.

"It's ridiculous the families have to get up on their hind legs to do this," says Hatt. "It's not reasonable to dig up graves and bones and pile them in a corner ... This was their last resting place and now someone says I need a road there so I'm going to dig them up ... There's just no need for it. They should be protected."

He believes if it was aboriginal graves there would be no movement to disturb the bones.

Hatt, with the support of the Ontario Historical Society and Cooley family members, is circulating a petition calling on the Ontario government "to prevent the desecration of any part of this sacred burial ground for real estate development." The petition came after the legislature failed to pass a bill in 2009 to protect inactive cemeteries.

City officials argued at a one-day OMB hearing in May the Site Disposition Agreement was a critical component of the subdivision proposal. The city, supported by the Ontario Historical Society, also stated the OMB had no jurisdiction over the Cemeteries Act, which governs the Site Disposition Agreement.

The OMB sided with Sulphur Springs. Board member Joseph Sniezek ruled the OMB "does not delay hearings indefinitely without an overpowering reason to delay the disposition of a land use matter" and the board "routinely sets conditions of a draft approval that must be addressed prior to approval."

dnolan@thespec.com