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West Beit Olam Cemetery Corporation v. Board of Assessors of Wayland

Appeals Court of Massachusetts, Suffolk

July 7, 2016

WEST BEIT OLAM CEMETERY CORPORATION
v.
BOARD OF ASSESSORS OF WAYLAND.

          Heard Date April 8, 2016.

         Appeal from a decision of the Appellate Tax Board.

          Sander A. Rikleen for the taxpayer.

          Mark J. Lanza for board of assessors of Wayland.

          Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.

          KAFKER, C.J.

         This is an appeal from a decision of the Appellate Tax Board (board) by West Beit Olam Cemetery Corporation (West Beit Olam), a nonprofit corporation organized in accordance with G. L. c. 114.[1] West Beit Olam is the record owner of lot 1A, located at 59 Old Sudbury Road in Wayland (town). In 2012, pursuant to G. L. c. 59, § 5, Twelfth (Clause Twelfth), West Beit Olam applied to the town's board of assessors (assessors) for a tax abatement for lot 1A.[2] The assessors denied the application, and West Beit Olam appealed to the board. After an evidentiary hearing, the board determined that a portion of lot 1A, known as parcel A, was exempt under Clause Twelfth, but the rest of the property was taxable. West Beit Olam appeals, claiming that all of lot 1A is exempt from taxation exempt under Clause Twelfth. For the reasons discussed below, we affirm the board's decision. In particular, we conclude that the board properly denied a tax exemption for the large part of lot 1A and a building located on it that were contractually restricted to residential use for seven years, including the tax year in question.

         1. Background.

         We summarize the facts as the board found them, noting that they are essentially undisputed by the parties. In 1998, the Jewish Cemetery Association of Massachusetts, Inc. (JCAM), a nonprofit cemetery corporation, purchased property in the town and created the Beit Olam Cemetery. As part of that purchase, JCAM also secured a right of first refusal on an adjoining parcel, lot 1A, which is the focus of this appeal. Lot 1A is contiguous to the Beit Olam Cemetery's western border and is improved with a single-family residence.

         To accommodate the future expansion of the Beit Olam Cemetery, JCAM created West Beit Olam in 2007 for the purpose of acquiring lot 1A. On July 26, 2007, West Beit Olam purchased lot 1A for $1.3 million.[3] Although West Beit Olam thought this price well exceeded market value, it was viewed as a necessary expense to ensure that the Beit Olam Cemetery could expand onto adjoining property in the future.

         Shortly after purchasing lot 1A, West Beit Olam created a cemetery development plan depicting the intended design of the future cemetery expansion on lot 1A. West Beit Olam also secured statutory approvals required by G. L. c. 114, § 34, from the town meeting and the board of health to use lot 1A for burials. However, at the time of the board's decision, lot 1A had not been dedicated as a cemetery in accordance with Jewish law and tradition, and no interments had been conducted on the land.

         Concomitant with West Beit Olam's purchase of lot 1A, JCAM endeavored to establish a private access road to the East Beit Olam Cemetery, another of its cemeteries located on a noncontiguous parcel to the east of the Beit Olam Cemetery. To this end, JCAM purchased a property at 44 Concord Road, which is adjacent to the East Beit Olam Cemetery and was owned by Janette Howland (Howland) and her husband. In exchange for the Concord Road property, JCAM paid a total purchase price of $410, 000, of which $210, 000 was paid to Howland "in the form of housing as set forth in the Cemetery Caretaker Agreement." The "Cemetery Caretaker Agreement" (caretaker agreement) grants to Howland and her family the right to live for seven years (until October 14, 2017), "rent-free, " in the house located on lot 1A. The caretaker agreement describes the grant of "rent-free" occupation to Howland "as consideration for the sale of the [Howland] Property."[4] The caretaker agreement designates Howland as the "on site caretaker for the Beit Olam Cemetery, East Beit Olam Cemetery, and West Beit Olam Cemetery (if such cemetery is developed for burials)" for the duration of the agreement, and mandates two duties: that she continuously "occupy the Premises for residential purposes only, " and "caus[e] the gates at the Cemeteries to be opened and closed on a daily basis." The Beit Olam Cemetery and the East Beit Olam Cemetery are owned by JCAM.

         The caretaker agreement reserves West Beit Olam's right to subdivide a specific area of lot 1A, designated as parcel A, for burial purposes at any time during the term of the agreement.[5]However, the caretaker agreement does not restrict Howland's ability to use the rest of lot 1A for residential purposes. The caretaker agreement also allows West Beit Olam to install an irrigation well on lot 1A "for the purpose of watering the Beit Olam Cemetery and any future expansion thereof, " so long as the well does not "unreasonably interfere with Howland's occupancy of the Premises."[6] West Beit Olam installed an irrigation well on the western-most portion of lot 1A in 2011. The well has the capacity to irrigate the existing Beit Olam Cemetery and a future cemetery on lot 1A. The well has not been used to irrigate lot 1A or otherwise prepare it for burials.

         Shortly after executing the caretaker agreement, Howland and her family moved into the house on lot 1A, and she began her caretaking duties of daily opening and closing the cemetery gates at the Beit Olam and East Beit Olam cemeteries. The board found that she also provided additional services to these JCAM cemeteries, but none involved substantial landscaping or maintenance.[7] Extensive landscaping, caretaking, and burial preparations for the JCAM cemeteries were performed by outside vendors, not Howland. The board further found that Howland lacked training, education, or experience in cemetery landscaping, maintenance, or administration. Further, she neither listed her occupation in the town census as cemetery caretaker, nor was she an employee of West Beit Olam.

         The board found that the majority of lot 1A and the house were not entitled to the Clause Twelfth exemption. The board concluded that the property and house were used primarily for residential purposes and that Howland performed minimal cemetery-related services. However, the board determined that parcel A was exempt under Clause Twelfth because West Beit Olam specifically reserved it for cemetery purposes throughout the term of the caretaker agreement. Further, the board determined that West Beit Olam sufficiently ...


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