Date April 8, 2016.
from a decision of the Appellate Tax Board.
A. Rikleen for the taxpayer.
J. Lanza for board of assessors of Wayland.
Present: Kafker, C.J., Wolohojian, & Maldonado, JJ.
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.
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. 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.
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.
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. 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.
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.
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." 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.
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.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." 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.
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. 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.
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