BOARD OF ASSESSORS OF SHARON vs. KNOLLWOOD CEMETERY (and two companion cases).

BOARD OF ASSESSORS OF SHARON vs. KNOLLWOOD CEMETERY (and two companion cases).

355 Mass. 584

March 4, 1969 - April 8, 1969

Suffolk County

Present: WILKINS, C.J., SPALDING, WHITTEMORE, CUTTER, & KIRK, JJ.

All of a tract of land acquired by a cemetery corporation in 1898 was exempt from taxation in 1962 under G. L. c. 59, Section 5, Twelfth, "as dedicated to the burial of the dead," even if the tract would "not be [fully used] for approximately sixty years" thereafter and it was possible that unused land might be sold by the corporation in the future, where it appeared that the corporation had engaged in "activity . . . to prepare the land for burial purposes" since its organization, that the entire cemetery had been laid out by sections on paper since 1899, that lots had been sold, actual interments made, and development work undertaken in large parts of the tract, that the corporation had used, and planned to use, its developed and undeveloped land "for burial purposes only," and that an amendable agreement restricted use of the tract to such purposes [590]; and an administration building on the tract and a nursery therein for trees and shrubbery raised for transplanting to other parts of the cemetery were also entitled to exemption under c. 59, Section 5, Twelfth [590].

The exemption of cemeteries from taxation under G. L. c. 59, Section 5, Twelfth, does not depend upon compliance with the provisions of c. 114, Section 34. [591]

It is immaterial to the question of exemption from taxation of property of a cemetery corporation under G. L. c. 59, Section 5, Twelfth, whether the corporation is "operated as a private enterprise for profit." [591]

APPEALS from decisions by the Appellate Tax Board.

Manuel Katz for the Board of Assessors of Sharon.

Donald N. Sweeney (Marshall Simonds & Leonard Wheeler with him) for the taxpayer.

CUTTER, J. The Appellate Tax Board ordered abatement of all taxes assessed for the years 1962 through 1965 on three land areas in Sharon and Canton owned by Knollwood Cemetery (Knollwood). The board held that Knollwood

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was exempt from taxation under G. L. c. 59, Section 5, Twelfth. The Sharon assessors appealed. The facts, except as otherwise indicated, are stated on the basis of the board's findings and report, made at the request of the Sharon assessors.

By St. 1898, c. 207 (later amended in respects not here material by St. 1901, c. 183, Section 1), Knollwood was created "for the purpose of purchasing, holding, managing and perpetuating a place for the burial of the dead" in Sharon and Canton, subject to the approval of a majority of the voters of each town. Knollwood (Section 1) was to "have all the powers and privileges and be subject to all the duties . . . contained in all general laws . . . now . . . or . . . hereafter . . . in force relating to such corporations." It was expressly authorized (Section 3) to purchase land [Note 1] for a cemetery in the manner in which Knollwood later did buy its land. The voters in each town gave consent in April, 1898. [Note 2]

By recorded agreement (the Cameron agreement) dated May 27, 1898, Knollwood undertook to acquire from John J. Cameron, acting for himself and several associates, land in Sharon and Canton. This agreement is summarized in the margin. [Note 3]

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From the time of Knollwood's incorporation, it engaged in "activity . . . to prepare the land for burial purposes." In 1901, "consecration exercises were held on the cemetery grounds . . . to dedicate the property for burial purposes." The assessors concede that between 1898 and 1948, 9.78 acres south of Canton Street, Sharon, had been prepared for use for burial and that eighteen bodies had been interred north of Canton Street.

"Around 1907 . . . [Knollwood] ran into financial trouble and required reorganization and refinancing." It continued, however, "to operate exclusively for the burial of the dead."

The entire cemetery has been laid out by sections on paper since 1899. Some of the early roads in undeveloped areas "were crude" and still remain so. "A unified grid system is used by which all of the land can be identified." Knollwood has expended substantial sums in development "as the need for lots arises" and funds from sales are received. Between 1948 and 1965 Knollwood sold 42,566 burial spaces.

Actual interments have been made in both Sharon and Canton. The property was not taxed by either town prior to 1962 when Sharon first levied a tax. Canton first taxed cemetery property in 1964. The Sharon assessors "considered as exempt . . . the actual burial ground, land prepared for burials which had paved roads, and also a strip of land 150 feet wide adjoining the described area." The rest of the land, they considered undeveloped and treated it as not dedicated to the burial of the dead.

In Sharon, Knollwood owns about 199 acres. From 1962

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through 1964, Sharon taxed eighty-five acres of land and a half-acre parcel containing a new administration building. In 1965 the Sharon assessors reduced the taxed land area from 85 to 78.5 acres [Note 4] and also taxed the new administration building and the one-acre nursery for trees and shrubbery raised for transplanting to other parts of the cemetery.

Some undeveloped land cannot be used for underground burial. Knollwood on these areas proposes to build mausoleums which will house caskets for aboveground burial. It plans to use all undeveloped land only for burial purposes and estimates that it will take sixty years to fill the cemetery. There remain about 145,000 individual lots which can be developed as need arises. Knollwood does not have funds to develop the whole unused acreage now. No activity other than the operation of a cemetery has been conducted on Knollwood's land.

The board concluded that all Knollwood's property is dedicated to the burial of the dead. It recognized that Knollwood's land "will not be [fully used] for approximately sixty years."

1. General Laws c. 59, Section 5, reads: "The following property shall be exempt from taxation . . . Twelfth, Cemeteries, tombs and rights of burial, so long as dedicated to the burial of the dead." [Note 5] This exemption has existed at least since St. 1841, c. 114, Section 7. See Milford v. County Commrs. of Worcester, 213 Mass. 162 , 166; Nichols, Taxation in Massachusetts (3d ed.) 247-248. In the Milford case, this was described (p. 167) as a "special and limited exemption confined to land devoted to cemeteries." It was held (pp. 165-166) that such corporations were not

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exempt under the general charitable organizations exemption now found in c. 59, Section 5, Third. [Note 6] See Bullock v. Commissioner of Corps. & Taxn. 260 Mass. 129 , 132-134; Proprietors of the Cemetery of Mt. Auburn v. Unemployment Compensation Commn. 305 Mass. 288 , 293-297.

The assessors place great emphasis upon Woodlawn Cemetery v. Everett, 118 Mass. 354 . In that case, an existing cemetery corporation (p. 356) proposed to buy an adjacent farm for cemetery purposes. The town declined to vote consent to the use of the land for burial purposes. The corporation proceeded to purchase the property and voted that it "dedicate" the land "to the purposes of a cemetery." It notified the town of its action. The town proceeded to tax the land. The only use (p. 357) of the land for cemetery purposes was the occupation of a house by the cemetery gardener, the storage of cemetery supplies, and the conduct of a hothouse and an evergreen nursery, but (pp. 357, 362) "no part of this land . . . [had] been used . . . for burials, or divided off or laid out into lots or permanent avenues, [n]or [had] any attempt been made to sell . . . for purposes of burial" (emphasis supplied). This court held (p. 363) that the purchased land was not exempt. Chief Justice Gray said (p. 361): "No land can be deemed to be `dedicated' for . . . a . . . burial place . . . so as to be exempt from taxation, or `used or appropriated' for . . . a burial ground, so as to entitle the owner to use it for that purpose for the future without municipal permission, which has not been devoted or set apart, and some active measures taken toward preparing the ground, for a burial place. A mere dedication or appropriation on paper is not enough" (emphasis supplied). It was held (p. 362) that the minor use of the purchased land for activities incidental to a cemetery

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did not constitute "dedication of such land . . . for . . . a . . . burial place."

The Woodlawn case is not controlling. From shortly after Knollwood's incorporation, the limits of the land acquired by it for cemetery purposes have been known. The board's findings show that there were in the early years some development and use for burials of the land acquired in 1898. Very considerable development and use of large parts of the land for burials have taken place since. The sale of 42,566 burial lots in a seventeen year period alone is ample indication of "active measures" taken well before 1962, directed to use of the land for burials, totally lacking with respect to the purchased land considered in the Woodlawn case.

Chapter 59, Section 5, Twelfth, cannot reasonably be interpreted as requiring that, to qualify for exemption, all land acquired (with municipal consent) for burial purposes must be developed at one time. It must be expected that a cemetery corporation, in making land purchases, will anticipate its future needs for a period of time and that it will prudently develop its property in an orderly fashion as the need for doing so arises. We think that the planning and substantial actual use of parts of a defined area of land for cemetery purposes may properly be found, within the meaning of c. 59, Section 5, Twelfth, to constitute a dedication of the whole of that land to cemetery use, in circumstances such as appear in the present case. We perceive nothing to the contrary in Trefry v. Younger, 226 Mass. 5 , 8, or in Proprietors of the Cemetery of Mt. Auburn v. Cambridge, 150 Mass. 12 , 13.

The assessors somewhat vaguely contend that to have a dedication of land to cemetery purposes, there must exist no likelihood that the land will be used for other purposes by reason of a future sale of unused land by the cemetery corporation. It is suggested (see Donnelly v. Boston Catholic Cemetery Assn. 146 Mass. 163 , 166; Garden Cemetery Corp. v. Baker, 218 Mass. 339 , 343) that Knollwood may appropriate or sell its land for general purposes.

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The board was warranted in finding that Knollwood has used its property, and plans to use it, "for burial purposes only." The Cameron agreement (see fn. 3), unless amended, in effect restricts use to cemetery purposes. We assume that, after appropriate corporate action and obtaining consent of the shareholder successors to the vendors, Knollwood may sell for general use parts of its land not theretofore used for burials. Nevertheless, we think that Knollwood's substantial use of the land for burials has been sufficient within the meaning of c. 59, Section 5, Twelfth, to constitute dedication of all the land acquired in 1898 to cemetery use and to give rise to its exemption "so long as [the land is] dedicated to the burial of the dead." This language of clause Twelfth indicates to us that the statute, as a basis of exemption, looks to the situation at the time of assessment despite the possibility of future change. Similar considerations apply to buildings on the cemetery land and a tree nursery used in, and necessary for, administration and operation of the cemetery.

2. The assessors contend that the board did not make adequate subsidiary findings to support its decisions and that some of its findings were not warranted. Examination of the testimony and exhibits convinces us that the board's findings, already summarized, were adequate and were warranted by substantial evidence.

The first finding criticized by the assessors (that Knollwood "may not sell its land") in context merely purports to describe the Cameron agreement (fn. 3). It is irrelevant, as has been indicated, that the possibility exists that hereafter some parts of the land, in probably unlikely circumstances, may be used for general purposes.

A second finding, said to be unwarranted, is that from its incorporation Knollwood "engaged in [activity] to prepare the land for burial purposes." Read with later detailed findings, this finding reasonably reflects the evidence. Prior to 1948, the efforts (irrelevant now because long prior to the years of the taxes under discussion) to promote use of the cemetery were plainly more sporadic and less effective than

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after 1948, when substantial activity began under new management. The testimony concerning activity after 1948 amply supports the board's findings about the use of the land in the years for which taxes have been assessed.

The assessors also suggest that the board had insufficient basis for concluding that Knollwood "has adhered to the requirements of . . . statutes concerning cemeteries." There was testimony that no approval by the Sharon board of health was sought for development after 1948 of certain portions of Knollwood's land. The assessors contend that failure to seek such approval was a violation of G. L. c. 114, Section 34, requiring it for use of "land, other than that already