TOWN OF BROOKFIELD, by and through its CEMETERY COMMISSION v. DOUGLAS J. KRUZEWSKI and JOSEPH SPADEA

Plaintiff, the Town of Brookfield, by and through its Cemetery Commission, commenced this case on February 27, 2007, seeking a declaratory judgment, pursuant to G.L. c. 231A, § 1, that an agreement, by which Plaintiff conveyed to Defendant, Douglas J. Kruzewski, Lots 9-16 in section D of the Brookfield Cemetery, is void and that an agreement, by which Plaintiff conveyed to Defendant, Joseph Spadea, Lots 17-24 in section D of the Brookfield Cemetery, is likewise void.

On application by the Plaintiff, the Court (Trombly, J.) granted a preliminary injunction on March 9, 2007, enjoining Defendants from constructing any monument on, internment in, or other use of their cemetery lots, during the pendency of this litigation.

On August 31, 2009, the Court took a view of the property. Trial was held the same day in a courtroom at the East Brookfield District Court. Stenographer, Kathleen M. Bradley was sworn to take the testimony. Plaintiff filed a Motion in Limine, which the Court denied. Exhibits 1-10 were admitted into evidence. On January 15, 2010, Plaintiff and Defendants each filed a Post-Trial Brief. This is the matter presently before the Court.

After reviewing the record before the Court, I find the following facts:

1. The Town of Brookfield is the owner of a municipal cemetery, known as the Brookfield Cemetery (Cemetery).

2. From 1991 to 1999, the Brookfield Cemetery Commission promulgated a document titled “Brookfield Cemetery Price List 1991,” which provided the purchase prices and fees of the various types of lots in the Cemetery (1991 Price List).

3. The 1991 Price List contains a section titled “Regulations.”

4. The Regulations section of the 1991 Price List states in relevant part: “The Brookfield Cemetery is for the residents their Famlies [sic] and former Residents of the Town Of Brookfield.”

5. The Regulations section of the 1991 Price List states also: “MONUMENTS AND SLANT MARKERS Must be placed in the CENTER of a whole lot in line with other Markers.”

6. From 1999 to 2002, the Cemetery Commission promulgated a second price list (1999 Price List).

7. The 1999 Price List contains a section titled “Regulations.”

8. The Regulations section of the 1999 Price List states in relevant part: “The Brookfield Cemetery is reserved for the internment of Brookfield residants [sic] of two (2) years or more and former residants [sic] of the same time period.”

9. The Regulations section of the 1999 Price List states also: “MONUMENTS and slant markers MUST be placed in the center of a WHOLE lot [and] in line with other monuments in that row of lots.”

10. The 1999 Price List includes a document titled “Brookfield Cemetery Diagram of Lots,” which depicts the placement of a monument on a family lot comprised of four single lots.

11. From 2002 to the present, the Cemetery Commission promulgated a third price list (2002 Price List).

12. The 2002 Price List provides: “The cemetery is reserved for the internment of current Brookfield residents, as well as former residents, who have lived in the town a minimum of 2 years.”

13. The 2002 Price List contains a section titled “Regulations.”

14. The Regulations section of the 2002 Price List states: “Monuments and slant markers will be placed in the center of whole lots, and in line with other monuments in that row of lots. Monuments, slant, and flat markers are allowed on 2-8 grave family lots. Single graves are allowed flat markers only.”

15. By deed dated September 6, 1994, the Town of Brookfield conveyed to Defendant, Douglas J. Kruzewski, Lots 9-16 in section D of the Cemetery.

16. Mr. Kruzewski provided his residence on the Kruzewski Deed as “52 Foster Hill Road, West Brookfield, 01585.” In addition, the deed describes Mr. Kruzewski as of West Brookfield.

17. By deed dated September 6, 1994, the Town of Brookfield conveyed to Defendant, Joseph Spadea, Lots 17-24 in section D of the Cemetery (collectively “Cemetery Deeds”).

18. Mr. Spadea provided his residence on the Spadea Deed as “121 Foster Hill Road.” In addition, the deed describes Mr. Spadea as of West Brookfield.

19. Defendants are not current or former residents of the Town of Brookfield.

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Whether the Cemetery Deeds are Void ab Initio

Plaintiff argues that the Cemetery Deeds to the Defendants are void because the Regulations of the Cemetery Commission provide that the Cemetery is for Brookfield residents only. From 1991 to 1999, the Brookfield Cemetery Commission promulgated the 1991 Price List. The 1991 Price List contains a section titled “Regulations”, which states in relevant part: “The Brookfield Cemetery is for the residents their Famlies [sic] and former Residents of the Town Of Brookfield.” It is agreed that Defendants are not current or former residents of the Town of Brookfield. However, as an initial matter, Defendants challenge the validity of the 1991 Price List as regulation of the Cemetery Commission. General Laws chapter 114, § 23 provides that a board of cemetery commissioners, “subject to the approval of the town, may make such regulations, consistent with law, as it deems expedient.” (emphasis added). In the present case, there is no evidence in the record to show that the 1991 Price List—or any other price list—or the Regulations section of any price list was in some manner approved by the Town.

Plaintiff argues that municipal regulations benefit from a presumption of validity and that the burden is on the challenger to demonstrate their invalidity. However, this rule applies to substantive challenges of validly-enacted regulations and not to challenges to the very validity of alleged regulations on the grounds that they were never properly enacted pursuant to statutorily-mandated procedure. See Springfield Pres. Trust, Inc. v. Springfield Library & Museums Ass’n, Inc., 447 Mass. 408 , 418 (2006); Beard v. Salisbury, 378 Mass. 435 , 439-40 (1979). It would be illogical to presume the validity of every Town policy held out as regulation, without further proof of valid enactment. Where the challenge is to the validity of the alleged enactment of a regulation, there can be no presumption of validity.

In the present case, G.L. c. 114, § 23 specifically requires approval by the Town in order to enact regulations of a Board of Cemetery Commissioners. Without this approval, the Price Lists exceed the authority granted by this statute and cannot be enforced as regulations of the Cemetery Commission. Plaintiffs attempt to argue around this requirement, stating that the Cemetery Commission is broadly authorized to supervise and manage its burial grounds through reasonable regulation and that the court has no authority to substitute its judgment for that of the commissioners. While the Cemetery Commission has the authority to craft and enforce regulation for these purposes, it remains subject to the statutory requirement of § 23 and requires Town approval for the enactment of such regulations. Without that approval the commissioners can have expressed no procedurally-valid judgment for which the Court could improperly substitute its judgment.

It is telling that Plaintiff does not produce any evidence of Town approval of the Price Lists as regulation. Plaintiff argues that Defendants have the burden of demonstrating that the Price Lists are not valid regulations. I disagree. It would be unfair to allow a municipality to allege that any policy is regulation and to require the challenger to demonstrate otherwise. Plaintiff is in the best position to have evidence of such approval and Defendants do not have the burden to prove a negative. Accordingly, I rule that neither the 1991, 1999, or 2002 Price List is a regulation of the Cemetery Commission.

Even if the 1991 Price List were a valid set of regulations, the Cemetery Deeds were validly executed and are controlling. The residency requirement is not a limitation on the eligibility of potential purchasers, but clearly a limitation of the authority of the Cemetery Commission. In fact, the practice of the Cemetery Commission has been to undertake an investigation into a potential purchaser’s residential history. Following application of the Defendants, the Cemetery Commission approved the sale. Presumably the Cemetery Commission determined that Defendants met the residency requirement. Any procedural defect stemming from a lack of authority was cured by the execution of the Cemetery Deeds by the owner of the lots, the Town of Brookfield, by and through Donald Faugno and Richard A. Chaffee, Selectmen of the Town of Brookfield. Even if the residency requirement were a limitation on the eligibility of the Defendants, Defendants never received an offer from the Town conditioned on their being current or former residence of Brookfield. The Cemetery Deeds were executed according to proper procedure, convey the respective cemetery lots to each of the Defendants, and, therefore, control. Accordingly, I rule that the Cemetery Deeds to Defendants are not void ab initio.

Whether the Cemetery Deeds are Voidable

Plaintiff argues in the alternative that the conveyances to the Defendants are voidable by reason of unilateral mistake because the Cemetery Commission erroneously believed, at the time of the conveyance, that Defendants were residents of the Town. Plaintiff alleges that Defendants intentionally mislead the Cemetery Commission in this regard and had the duty to disclose their true residency but failed to do so.

As previously discussed, there are no valid regulations of the Cemetery Commission, about which to be mistaken. Nonetheless, even if the residency condition were a valid regulation, Defendants argue that they never made any representation to the Cemetery Commission that they were current or former residents of the Town. Defendants allege that, instead, they were never informed that only current or former residents qualified to purchase cemetery lots, were never given a copy of the 1991 Price List or other purported regulations, and were never asked about their residential history. Moreover, Defendants each provided his West Brookfield address on his deed and each deed describes Defendants as of West Brookfield. Therefore, there could have been no mistake by Plaintiff as to the residency of the Defendants. In light of this evidence, the Plaintiff’s argument falls far short of the evidentiary standard necessary in contract reformation. See Polaroid Corp. v. The Travelers Indem. Co ., 414 Mass. 747 , 756 (1993); Covich v. Chambers, 8 Mass. App. Ct. 740 , 747-48 and n. 12 (1979) (where contract reformation is concerned, mistake must be proved by clear and convincing evidence, and not merely the preponderance of the evidence standard).

Plaintiff argues also that even if there is no unilateral mistake, the Cemetery Commission should now be permitted to enforce its regulation and void the Cemetery Deeds. Plaintiff cites the well-established rule that a municipality cannot be estopped by the acts of its officers from the proper enforcement of its regulations. While it is true that past action by a municipal board does not bind the municipality in its future actions, Bldg. Inspector of Lancaster v. Sanderson, 372 Mass. 157 , 162 (1976) (and cases cited), it does not follow that such board may unilaterally rescind its past action. To hold otherwise in this case would be to allow Plaintiff to circumvent contract law.

Plaintiff continues that the Cemetery Commission should not be required to conduct an investigation of each potential purchaser to determine whether each holds a qualifying residential history. This is, of course, exactly the burden of the Cemetery Commission if it wishes to enforce its own condition. Either the Cemetery Commission acts within the limit it has voluntarily set for itself or it bears the risk of nonresidents owning and using Cemetery lots. The Cemetery Commission’s failure to police its own condition is not grounds to void a valid deed that does not contain any mention of a residency requirement, and it would be fundamentally unfair to allow the Cemetery Commission to do so. Accordingly, I rule that the Cemetery Deeds to Defendants are not voidable.

Whether Defendants are Held to Certain Size and Location Requirements for Monuments Placed on their Cemetery Lots

Plaintiff argues that the Defendants must comply with the size and location regulations for any monuments placed on their Cemetery lots. Defendants argue that there are no such regulations and that the alleged regulations of the 1999 Price List are too vague to be enforceable. Defendants assert also that they never received any information regarding regulations of the allowable size and location of monuments to be placed on the lots, prior to or at the time the lots were conveyed to them.

As previously determined, none of the Price Lists are a valid set of regulations of the Cemetery Commission. Moreover, the lists contain no requirements as to the location or size of monuments on Cemetery lots, except that monuments must be centered in a whole lot and that slant markers must be in line with other markers in its row. The 1999 Price Lists, Diagram of Lots, does contain a diagram of the placement of a monument in a family lot comprised of four single lots; however, this diagram depicts the monument, presumably in the center of the family lot, without giving a minimum setback requirement or other minimum dimensional requirements. Accordingly, I rule that Defendants are not subject to any requirements as to the size or location of monuments placed on their Cemetery lots.

Conclusion

For the foregoing reasons, the Court concludes that the Cemetery Deeds to the Defendants of Cemetery lots are neither void nor voidable by Plaintiff. The 1991, 1999, and 2002 Price Lists are not valid regulations of the Cemetery Commission, which could render void the deeds. Furthermore, Plaintiff may not now void the deeds pursuant to any such regulations. The Court concludes also that the Price Lists are not valid regulations, governing the size and location of monuments on cemetery lots and, therefore, that Defendants are not limited in that regard.

Judgment to enter accordingly.

Charles W. Trombly, Jr.

Justice

Dated: January 26, 2010