JEWISH CEMETERY ASSOCIATION OF MASSACHUSETTS, INC., EAST BEIT OLAM CEMETERY CORPORATION, and WEST BEIT OLAM CEMETERY CORPORATION vs. BOARD OF APPEALS OF THE TOWN OF WAYLAND, E. MICHAEL THOMAS, JAMES GRUMBACH, ERIC GOLDBERG, STEVE FUGARAZZO, JERRY BOOS, AIDA GENNIS, LINDA SEGAL, and SHAUNT SARIAN, as Members and Alternate Members of the Wayland Board of Appeals, and the TOWN OF WAYLAND

Plaintiffs Jewish Cemetery Association of Massachusetts, Inc. (“JCAM”), East Beit Olam Cemetery Corporation (“East Beit”), and West Beit Olam Cemetery Corporation (“West Beit”) (together, “Plaintiffs”) filed their unverified Complaint on October 29, 2008, appealing, pursuant to G. L. c. 40A, § 17, a decision of Defendant Board of Appeals of the Town of Wayland (the “ZBA”) which required Plaintiffs to obtain an earth moving special permit with site plan approval for construction at cemetery property in Wayland (hereinafter defined as East Locus and West Locus). Plaintiffs also challenge, pursuant to G. L. c. 240, § 14A, and G. L. c. 231A, the validity and applicability of the Wayland Zoning By-laws (the “By-laws”) to Locus. Defendant Town of Wayland (the “Town”) and the ZBA (together, “Defendants”) filed an Answer on November 21, 2008. A case management conference was held on January 7, 2009.

Plaintiffs filed their Motion for Summary Judgment on March 20, 2009, together with supporting memorandum, Statement of Undisputed Facts, and Affidavits of Stanley Kaplan (Executive Director of East Beit and West Beit), Rabbi Abraham Halbfinger, Rabbi Sally Rena Finestone, Rabbi Harman J. Blumberg, Reverend James J. Laughlin, JCL, Michael J. Coutu (landscape architect), Leslie Crossley (paralegal), and Sander A. Rikleen, Esq. On June 22, 2009, Defendants filed their Cross-Motion for Summary Judgment, together with supporting memorandum and Opposition. Plaintiffs filed their Opposition on July 10, 2009, together with Supplemental Affidavits of Michael J. Coutu, Sander A. Rikleen, and Stanley Kaplan. A hearing was held on all motions on July 27, 2009, and all motions were taken under advisement.

Summary judgment is appropriate where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. See Cassesso v. Comm’r of Corr., 390 Mass. 419 , 422 (1983); Cmty. Nat'l Bank v. Dawes, 369 Mass. 550 , 553 (1976); Mass. R. Civ. P. 56(c).

This court finds that the following facts are not in dispute:

1. JCAM is a Jewish organization that cares for numerous Jewish cemeteries in Massachusetts, including the Beit Olam Cemetery (“Locus”) located in Wayland, Massachusetts, which it owns and operates. There are few burial sites remaining at Locus. JCAM created East Beit and West Beit to purchase land in Wayland adjacent to Locus for the purpose of expanding Locus’ cemetery use.

2. JCAM formed East Beit in December 2006, after which, East Beit purchased 17.9 acres of land located east of, and adjacent to, Locus at 53 Old Sudbury Road, 22 Holiday Road, and on Concord Road (“East Locus”).

3. JCAM formed West Beit in 2007, after which, West Beit purchased land containing 75,178 square feet, located west of, and adjacent to, Locus at 59 Old Sudbury Road (“West Locus”).

4. Under the By-laws, a cemetery is a permitted use as of right on Locus, East Locus, and West Locus, subject to site plan approval. [Note 1]

5. Pursuant to Section 198-504.1 of the By-laws (the “Earth Movement By-law”), adopted in 2004, a special permit is required to move in excess of 1,500 cubic yards on any parcel of land of 40,000 square feet or more in size. Land owned by the Town is exempt from this section of the By-laws. Section 198-504.2 states that “[n]othing contained in § 198-504.1 shall . . . prevent the use of any land for . . . cemeteries . . . and such purposes as are incidental to, or usual in connection with, any of said purposes.”

6. There will be no buildings on East Locus or West Locus. Both East Locus and West Locus meet all dimensional requirements of the By-laws.

7. JCAM filed an application with the Wayland Building Commissioner (the “Building Commissioner”) on March 28, 2008, for site plan approval relative to the grading of East Locus and West Locus for cemetery purposes. This application called for the movement of more than 1,500 cubic yards of earth on both East Locus and West Locus. [Note 2]

8. On June 2, 2008, the Building Commissioner ruled (the “Building Commissioner Decision”) that a special permit was required for the movement of earth relative to the grading. The Building Commissioner Decision stated:

After reviewing the calculations dated 4/28/08 prepared by Sullivan, Connors & Associates for the “West Beit Olam” parcel the earth movement exceeds 1,500 CY and would require a Special Permit pursuant to 198-504. The second set of calculations for the “East Beit Olam” indicate a -700 CY figure. In this calculation it looks as though they exempted the drainage structures. This is not an allowed exemption, when you add that figure into the calculation it also exceeds the provisions of 198-504 and would require a Special Permit.

After a request for reconsideration, on June 11, 2008, the Building Commissioner issued a similar decision.

9. On July 2, 2008, Plaintiffs filed an appeal of the Building Commissioner Decision with the ZBA.

10. By decision dated July 23, 2008, the Planning Board of the Town of Wayland approved the site plan review process for East Locus, subject to six general conditions and seven special conditions (the “Site Plan Approval”). [Note 3] Plaintiffs did not appeal the Site Plan Approval.

11. By decision dated October 10, 2008, the ZBA upheld the Building Commissioner Decision by a 3-1 vote (the “ZBA Decision”). The ZBA Decision stated:

Administrative appeal of the decision of the Building Commissioner is denied. Decision of the Building Commissioner is upheld that a Special Permit shall be required in the event that movement of earth in excess of 1,500 cubic yards is required for construction of a cemetery at the property, as indicated in the appellant’s plan submitted to the Planning Board for Site Plan Approval.

The rationale of the ZBA Decision was as follows:

The Board concluded that the massive earth moving contemplated in expansion of the Beit Olam Cemetery did not constitute use of land for “such purposes as are incidental or usual in connection with use of land for a cemetery”. Rather, the Board concluded that the earth moving was use of land for conversion of the land from its previous use as residential land to its proposed new cemetery use. The Board concluded that the earth moving during the course of conversion of the land was not incidental to its use as a cemetery because the land was not used as a cemetery at the time the earth moving was performed.

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Plaintiffs argue that because the cemetery use of Locus, East Locus, and West Locus is for a religious purpose, such use is protected by the so-called Dover Amendment found in Chapter 40A, Section 3 of the General Laws and, thus, the Earth Movement By-law and site plan review should not apply to Locus. [Note 4] Defendants claim that Plaintiffs’ proposed use of East Locus and West Locus is not a primary use of land for a religious purpose within the meaning of the Dover Amendment, and that irrespective of such outcome, the earth movement on the land is not an accessory use to a cemetery use or a religious use. I shall look at each of these issues in turn.

Whether Plaintiffs’ Use of East Locus and West Locus as a Jewish Cemetery is for a Religious Purpose and Protected Under the Dover Amendment.

Plaintiffs argue that the proposed cemetery use of East Locus and West Locus is for a religious purpose and reason that because both cemeteries meet all dimensional requirements of the By-laws, the Earth Movement By-law and site plan review do not apply. [Note 5] Defendants note that cemetery uses and earth removal uses are separate principal uses under the By-laws and assert that the Earth Movement By-law regulates only the movement of earth within the cemetery, and not the use of land for cemetery or religious purposes.

Both parties indicate that there is little appellate case law on the issue of whether a cemetery use is a religious use. Plaintiffs argue that their use of East Locus and West Locus is protected under the Dover Amendment as use for a religious purpose, and cite several old cases in this regard. See e.g., Commonwealth v. Viall, 84 Mass. 512 (1861). Defendants claim that Plaintiffs’ use of land for cemetery purposes is secular in nature.

Almost one hundred and fifty years ago, the Supreme Judicial Court (the “SJC”) stated, “we think the devotion of a piece of ground to the purpose of burial includes much more than the mere interment of the remains of the dead. . . . With some religious denominations, the burial of the dead is a sacrament; and church-yards and cemeteries are consecrated by religious rites.” Viall, 84 Mass. at 515 (interpreting a statute relating to the desecration of burial places). Plaintiffs produce numerous affidavits from representatives of the Jewish faith to indicate that the sacrament of burial is a sacred and religious rite, including the Affidavit of Rabbi Herman J. Blumberg, which states that cemeteries are “land used for a sacred and religious purpose, where only Jewish burial laws, rituals and customs are observed.” The affidavits also describe the Jewish ritual for consecrating a cemetery prior to its use for burial, and state that once this is done, only Jewish religious laws, customs and rituals can be observed within the cemetery. Moreover, the affidavits point out that “[u]nder Jewish law, a Jewish cemetery is as holy and sacred as the land upon which sits the community’s synagogue.” Defendants do not counter these affidavits or produce their own affidavits. [Note 6]

In support of their argument that a religious organization’s use of land for a cemetery is not protected by the Dover Amendment, Defendants cite Foster v. Beverly, 315 Mass. 567 (1944). In Foster, cemetery abutters attempted to overturn action of the City of Beverly which granted a religious corporation the right to maintain a cemetery on land formerly zoned for residential purposes. Id. at 568. Defendants appear to hang on language in the decision that cemeteries are subject to local zoning; however, this case was decided before the adoption of the Dover Amendment. [Note 7] Moreover, in Foster the SJC addressed the zoning status of a cemetery and not the issue of whether a cemetery is a religious use.

With respect to use, the scope of the term “religious purpose,” as used in the Dover Amendment, is an issue of law for courts to define. Needham Pastoral Counseling Ctr., Inc. v. Bd. of Appeals of Needham, 29 Mass. App. Ct. 31 , 33 (1990). That said, “[i]t is not permissible for a judge to determine what is or is not a matter of religious doctrine.” Martin v. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141 , 152 (2001). The term “religious purpose” “in a dictionary sense and without judicial gloss, means something in aid of a system of faith and worship, usually of a higher unseen power entitled to reverence . . . . Fidelity to a set of principles or rituals is a central characteristic.” Needham Pastoral, 29 Mass. App. Ct. at 33. [Note 8] Moreover, “[r]eligious activity, to be sure, may involve more than prayer and worship, . . .” Id. at 37. In light of this legal standard, and in context of Plaintiffs’ Affidavits, which I deem credible, I find that the use of East Locus and West Locus as a Jewish cemetery is for a religious purpose, in context of the Dover Amendment.

Given this determination that the use of East Locus and West Locus as a Jewish cemetery is a religious purpose, it follows that the next inquiry before this court is to determine the applicability of the By-laws to such use. The Dover Amendment states that protected uses may be subject to reasonable regulations relative to dimensional requirements both for the land and for any buildings thereon. The summary judgment record discloses that there will be no buildings on the land and that the land meets all dimensional zoning requirements. As a result, the only remaining issues involve the application of the Earth Movement By-law and site plan review to cemetery use of East Locus and West Locus.

Whether the Earth Movement By-law Applies to East Locus and West Locus.

As stated previously, the Earth Movement By-law requires a special permit to move in excess of 1,500 cubic yards on any parcel of land of 40,000 square feet or more in size. Section 198-504.2 of the By-laws exempts “the use of any land for . . . cemeteries . . . and such purposes as are incidental to, or usual in connection with, any of said purposes.” [Note 9] Plaintiffs argue that since raw land must be prepared for burials by grading in order to be used, such use must be incidental to the allowed cemetery use. Defendants claim that, irrespective of whether the cemetery use of land is a religious use, the earth removal contemplated by Plaintiffs is not a use incidental to the allowed as-of-right cemetery use of the land. [Note 10]

In support of their position that Plaintiffs’ site preparation of East Locus and West Locus is not “incidental to, or usual in connection with” a cemetery use, Defendants cite to Henry v. Bd. of Appeals of Dunstable, 418 Mass. 841 (1994). In determining the limits of an incidental use, the SJC noted that “[u]ses which are ‘incidental’ to a permissible activity on zoned property are permitted as long as the incidental use does not undercut the plain intent of the zoning by-law.” Id. at 844. This “is a fact-dependent inquiry, which both compares the net effect of the incidental use to that of the primary use and evaluates the reasonableness of the relationship between the incidental and the permissible uses.” Id. In zoning parlance, an incidental use touches upon two concepts.

It means that the use must not be the primary use of the property but rather one which is subordinate and minor in significance. . . . But “incidental,” when used to define an accessory use, must also incorporate the concept of reasonable relationship with the primary use. It is not enough that the use be subordinate; it must also be attendant or concomitant. [Note 11]

Id. at 845 (citing Harvard v. Maxant, 360 Mass. 432 , 438 (1971)).

Henry addressed the issue of whether certain excavation and removal of gravel was incidental to an agricultural or horticultural use of land. Id. at 841-42. [Note 12] In Henry, the applicant, similar to Plaintiffs in the case at bar, proposed to move large amounts of fill in converting land from one use (general forest land) to another (establishment of a Christmas tree farm). The SJC found that the applicant met neither the subordinate nor the accessory aspect of an incidental use; it found that the net effect of the volume of earth to be removed, the duration of the project, and the scope of the removal project were inconsistent with agricultural use. Id. at 845.

In the case at bar, preparing land for cemetery use is not attendant to the cemetery use. In the same way that the quarrying activity in Henry was necessary to prepare land for an agricultural use, id. at 843, Plaintiffs’ proposed site preparation is necessary to convert East Locus and West Locus from residential use to use as a cemetery. However, simply because a use is necessary does not result in an incidental or accessory use. See Needham v. Winslow Nurseries, Inc., 330 Mass. 95 , 101 (1953) (“An incidental or accessory use under a zoning law is a use which is dependent on or pertains to the principal or main use.”). In fact, the site preparation proposed by Plaintiffs is not dependant on, or a part of, the cemetery use. Furthermore, such use is not even religious in nature. [Note 13] Failing to require a connection linking an incidental use to an allowed use “would be to permit any use which is not primary, no matter how unrelated it is to the primary use.” Henry, 418 Mass. at 845 (citing Maxant, 360 Mass. at 438).

Plaintiffs attempt to distinguish Henry and its progeny on the grounds that their proposed use of East Locus and West Locus will not result in “material amounts” of gravel or topsoil. The burden falls on Plaintiffs to prove they are protected from zoning under the Dover Amendment. See Trustees of Tufts College v. Medford, 415 Mass. 753 , 759 (1993). Here, Plaintiffs fail to provide this court with estimates of the volume of earth proposed to be moved or a time frame during which the earth movement will proceed. This failure to provide such information precludes this court from finding that the material proposed to be moved as part of the cemetery expansion’s site preparation is subordinate to cemetery use. Plaintiffs’ claim that they do not anticipate selling gravel or topsoil as a part of the cemetery project does not minimize the quantity of material proposed to be moved. Furthermore, the scope of the proposed earth movement fails to address whether such use is accessory to a cemetery use, as discussed supra. [Note 14]

As a result of the foregoing, I find that the grading and movement of materials related to the site preparation of East Locus and West Locus is not a use “incidental to, or usual in connection with” a cemetery or religious use, and, thus, is subject to the Earth Movement By-law. Given this court’s finding that the Earth Movement By-law applies to the site preparation of East Locus and West Locus, I find that the ZBA Decision is not arbitrary and capricious or in excess of the ZBA’s authority.

Validity of Site Plan Review. [Note 15]

Plaintiffs also argue that as a use protected under the Dover Amendment, East Locus and West Locus, as Jewish cemeteries, are not subject to site plan review. At the same time, however, Plaintiffs’ concede that East Locus and West Locus are subject to those regulations allowed for in the Dover Amendment, i.e. “reasonable regulations concerning the bulk and height of structures and determining yard sizes, lot area, setbacks, open space, parking and building coverage requirements.” Given that Plaintiffs did not appeal the Site Plan Approval, their argument with respect to the applicability of site plan review appears to focus solely on the issue of whether, in theory, a site plan review process can be validly applied to a Dover-protected religious use. This court concludes in the affirmative, as discussed below.

It is true that “towns may not, through the guise of regulating bulk and dimensional requirements under the [Dover Amendment], proceed to ‘nullify’ the use exemption permitted . . . .” The Bible Speaks v. Bd. of Appeals of Lenox, 8 Mass. App. Ct. 19 , 31 (1979) (citing Sisters of the Holy Cross v. Brookline, 347 Mass. 486 , 494 (1964)). However, the plain language of the Dover Amendment affords municipalities discretion in regulating religious uses as long as this regulation is reasonable. Plaintiffs appear to adopt the blanket assertion that Dover Amendment uses cannot be subjected to site plan review and, for support, cite to The Bible Speaks, 8 Mass. App. Ct. at 20, which, in part, involved the validity of a local bylaw in context of the Dover Amendment. In The Bible Speaks, the Appeals Court was called on to interpret a bylaw scheme that required a site plan in tandem with a special permit. Id. at 31. The court reasoned that, taken together, the local bylaw’s site plan review provision and the special permit provision “invest[ed] the board with a considerable measure of discretionary authority over an educational institution’s use of its facilities and create a scheme of land use regulation for such institutions which is antithetical to the limitations on municipal zoning power in this area prescribed by [the Dover Amendment].” Id. at 33. [Note 16] In conclusion, the Appeals Court held that the site plan/special permit bylaw at issue exceeded the Dover Amendment’s allowance of reasonable regulations. Id. Even though the bylaw at issue in The Bible Speaks was found to be an unreasonable regulation in context of the Dover Amendment, such case does not stand for the proposition that all site plan review violates the Dover Amendment as an absolute matter of law. In light of the above, I find that uses protected by the Dover Amendment may be subject to site plan review as long as such review is limited to reasonable regulations.

Validity of the Earth Movement By-law.

Plaintiffs argue that the Earth Movement By-law is invalid as applied to East Locus and West Locus because it unreasonable restricts the use of the cemetery land under the Dover Amendment. As discussed, supra, the Earth Movement By-law does not run afoul of the Dover Amendment and, as such, I find that the Earth Movement By-law is not invalid either facially or as applied.

Conclusion.

As a result of the foregoing, and consistent with the above, I ALLOW IN PART Plaintiffs’ Motion for Summary Judgment with respect to whether Plaintiffs’ use of East Locus and West Locus as a Jewish cemetery is for a religious purpose; I DENY IN PART Plaintiffs’ Motion for Summary Judgment with respect to whether site plan review can apply to uses protected by the Dover Amendment; I ALLOW IN PART Defendants’ Cross-Motion for Summary Judgment with respect to the applicability of the Earth Movement By-law to East Locus and West Locus and the validity of the ZBA Decision; and I DENY IN PART Defendants’ Cross-Motion for Summary Judgment with respect to whether Plaintiffs’ use of East Locus and West Locus as a Jewish cemetery is for a religious purpose.

Judgment to enter accordingly.

Alexander H. Sands, III

Justice

Dated: August 13, 2010