Assessors of Dover v. Dominican Fathers Province of St. Joseph

• Decision Date: 12 September 1956
• Citation: 137 N.E.2d 225,334 Mass. 530
• Parties: ASSESSORS OF DOVER v. DOMINICAN FATHERS PROVINCE OF ST. JOSEPH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 225

137 N.E.2d 225

334 Mass. 530

ASSESSORS OF DOVER v. DOMINICAN FATHERS PROVINCE OF ST. JOSEPH.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 7, 1956.

Decided Sept. 12, 1956.

Walter Powers, Boston (Walter Powers, Jr., Boston, with him), for Assessors of Dover.

Albert L. Hyland, Boston (James J. Walsh with him), for the taxpayer.

Before RONAN, WILKINS, SPALDING and WILLIAMS, JJ.

SPALDING, Justice.

This is an appeal by the board of assessors of the town of Dover from a decision of the Appellate Tax Board which abated in full the real estate tax levied on property owned by the Dominican Fathers Province of St. Joseph, hereinafter called the taxpayer. This decision was based upon the ground that the property assessed is exempt from taxation under G.L. (Ter.Ed.) c. 59, § 5, Third.

Originally, there were three cases before the board by reason of the fact that abatements were sought for the years 1951, 1952 and 1953. The case involving the 1951 tax was dismissed by the board and no appeal was taken. The cases relating to the taxes for 1952 and 1953 were tried together and are the subject of the present appeal. The facts in both cases were the same. Following the entry of these cases in the county court, and pursuant to a stipulation approved by the single justice, the record for this court was prepared only with respect to the 1953 case, it being agreed by the parties that the decision in this case would govern the 1952 case.

The cases were presented to the board on a statement of agreed facts which include the following: The Order of Preachers, founded in 1216 and popularly known as the Dominican Order, is a religious congregation in the Roman Catholic Church. The order has a number of provinces, one of which is the Province of St. Joseph. The taxpayer, Dominican Fathers Province of St. Joseph, is a Massachusetts corporation which was formed on September 21, 1949, under the provisions of G.L. (Ter.Ed.) c. 180. The purposes of the taxpayer, as set forth in its charter, are in part: 'To maintain and conduct a priory to be used for religious and residential purposes; to establish and maintain religious, ecclesiastical, and educational activities; to acquire and hold * * * real property necessary or proper for the maintenance and conduct of a priory and the advancement of religion, and education * * *.'

The real estate here involved, comprising seventy-eight and five tenths acres, was acquired by the taxpayer in 1949. The property is a portion of a larger estate containing about two hundred fifty-four acres. The purpose of the taxpayer in acquiring the property was to use it for a Dominican priory and a seminary. A priory is a Dominican house similar in most respects to a monastery.

The property acquired by the taxpayer was in a district zoned for residential uses. Under the zoning by-law certain nonresidential uses were permitted. Such uses included the following: '3. Church; 4. Educational use:--If non-sectarian and if not organized or operated for private profit.' The taxpayer took the position that the 'non-sectarian' limitation on use for educational purposes was invalid. By St.1950, c. 325, § 1, G.L. (Ter.Ed.) c. 40, § 25, was amended by providing that 'No by-law or ordinance which prohibits or limits the use of land for any * * * religious, sectarian or denominational educational purpose shall be valid.' The validity of subdivision 4 of the above mentioned by-law was challenged by an information brought by the Attorney General and this court held that if the 'non-sectarian' limitation was ever valid it became invalid immediately upon the taking effect of the 1950 amendment. Attorney General v. Inhabitants of Town of Dover, 327 Mass. 601, 100 N.E.2d 1.

Pending the determination in that case the taxpayer desired to occupy and make use of the premises. Its immediate plan was to use the property for church purposes and as a single family residence for members, and the taxpayer took the position that it could do this as of right even under the existing by-law. Upon being advised by the town that it would be necessary to apply for a certificate of occupancy, the taxpayer applied for such certificate and its application stated in substance that the proposed use of the premises was for church and residential purposes. The certificate was refused by the board of selectmen and upon appeal to the board of appeals the action was sustained, but the board suggested that an application for a variance be made. ¹ This suggestion was acted upon by the taxpayer and a variance was granted in accordance with the application so as to permit the use and occupancy of the premises 'for a combination of church and multiple dwelling purposes.' ² A certificate of occupancy for these purposes was issued to the taxpayer on December 20, 1949, and thereafter the taxpayer occupied the property for these purposes.

In 1951 following the decision of this court in Attorney General v. Inhabitants of Town of Dover, 327 Mass. 601, 100 N.E.2d 1, St. Stephen's Priory Novitiate Seminary was established on the premises. Facts with respect to the seminary will be set forth later.

The tax questions relating to the property arose in these circumstances. When the property was acquired there was located on it a large stone manor house of approximately thirty-five rooms, a caretaker's house, a greenhouse, a tool house, a pumping outfit and an artificial reflecting pool. In 1950 a chapel was consecrated in the main house. From the outset this was exempted from taxation as a house of religious worship under c. 59, § 5, Eleventh. Also eight acres adjoining the main building were exempted. The remaining land, seventy and five tenths acres, has at all times here material been taxed by the town. Beginning in 1951 the taxpayer commenced, and eventually completed, substantial charges in and additions to the main building, as well as other improvements, at a total cost of approximately a million dollars. As of 1953 the property as altered and improved was in substance as follows: a new wing had been added to the old building; opposite the main entrance of the old building a chapel had been added; in the old building were two chapels and the remaining portion contained the prior's quarters, offices and bedrooms; the new wing which was a five story structure, contained a kitchen, refectory, library, class rooms and numerous bedrooms for novices. On the grounds there are a baseball field and a swimming pool where members of the priory may exercise. There is a small natural pond which is used for swimming and skating. In 1953 the assessors exempted that portion of the property devoted to religious worship together with eight acres of land. The remainder of the property was taxed. ³ No question of valuation is presented. The position of the taxpayer is that all of its property is exempt from taxation. The assessors contend that the property not exempted was rightly taxed.

1. Apart from the question whether the property in question is exempt under c. 59, § 5, Third (which will be discussed later), the assessors argue that the taxpayer has contracted to pay taxes on the partial exemption basis employed by the assessors and cannot now repudiate this obligation. The arguments in support of this contention may be summarized as follows: The taxpayer applied for a variance to use the property for a combination church and residence. In so doing it committed itself intentionally to the proposition that this was to be the status of its property for tax purposes. The town, it is argued, accepted this statement at face value and granted the variance on the basis of it. This, it is argued, is in effect a contract which is binding on the taxpayer.

It does not appear that this question was raised before the Appellate Tax Board. The assessors presented numerous requests for rulings but none raises the point now urged. G.L.(Ter.Ed.) c. 58A, § 13, as amended, provides that 'The [full] court shall not consider any issue of law which does not appear to have been raised in the proceedings before the board.' Accordingly the point now argued is not properly before us. Commissioner of Corporations & Taxation v. Boston Edison Co., 310 Mass. 674, 676, 39 N.E.2d 584; Fisher School v. Assessors of Boston, 325 Mass. 529, 533, 91 N.E.2d 657. However, since the result will be the same and the point has been argued extensively by the assessors, we shall deal with it.

We fail to see any basis for raising a contractual obligation out of the negotiations which led to the granting of the variance. The taxpayer at all times took the position that the by-law which prevented use of the property for a sectarian educational purpose was invalid. At the hearing before the board of appeals counsel for the taxpayer informed the board that it was the taxpayer's intention 'eventually to use the premises as a novitiate and seminary for the education of future priests.' When the taxpayer asked for a variance for a more restricted use of the property, that is, for religious and residential purposes, it was asking for all that the board of appeals, as indicated in its decision, would then allow. After the enactment of St.1950, c. 325, § 1, and the decision of this court, Attorney General v. Inhabitants of Town of Dover, 327 Mass. 601, 100 N.E.2d 1, construing it, it became apparent that the provision of the town by-law prohibiting use of the property for sectarian educational purposes was invalid. Thereafter the taxpayer proceeded, as it had a right to do, to use the property for the purposes of a seminary. In exercising this right it had a right to take advantage of such exemptions as it might be entitled to under the tax laws. And it did not lose that right merely because it formerly had sought a variance under the zoning laws for a more limited use of the property. We find no basis in these negotiations for a variance for treating the transaction as a contract which would...