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). [Note 1] 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. A decision of today’s date has been issued.

In accordance with that decision it is:

ORDERED and ADJUDGED that the use of East Locus and West Locus as a Jewish cemetery is for a religious purpose, in context of G. L. c. 40A, § 3 (the “Dover Amendment”).

ORDERED and ADJUDGED 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 Section 198-504.1 of the By-laws (the “Earth Movement By-law”).

ORDERED and ADJUDGED that the decision of the ZBA dated October 10, 2008 (the “ZBA Decision”), is not arbitrary and capricious or in excess of the ZBA’s authority.

ORDERED and ADJUDGED that uses protected by the Dover Amendment may be subject to site plan review as long as such review is limited to reasonable regulations.

ORDERED and ADJUDGED that the Earth Movement By-law is not invalid either facially or as applied.

ORDERED and ADJUDGED that Plaintiffs’ Motion for Summary Judgment is ALLOWED IN PART with respect to whether Plaintiffs’ use of East Locus and West Locus as a Jewish cemetery is for a religious purpose; Plaintiffs’ Motion for Summary Judgment is DENIED IN PART with respect to whether site plan review can apply to uses protected by the Dover Amendment; Defendants’ Cross-Motion for Summary Judgment is ALLOWED IN PART 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 Defendants’ Cross-Motion for Summary Judgment is DENIED IN PART with respect to whether Plaintiffs’ use of East Locus and West Locus as a Jewish cemetery is for a religious purpose.

By the court. (Sands, J.)