Foster v. Mayor of City of Beverly

• Decision Date: 29 February 1944
• Citation: 53 N.E.2d 693,315 Mass. 567
• Parties: FOSTER et al. v. MAYOR OF CITY OF BEVERLY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

315 Mass. 567

53 N.E.2d 693

FOSTER et al.

v.MAYOR OF CITY OF BEVERLY et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 29, 1944.

Certiorari by Sadie A. Foster and others against the Mayor and Members of the Board of Aldermen of the City of Beverly, respondents, to quash proceedings whereby Congregation Sons of Abraham was granted right to maintain a cemetery in an area previously zoned as a single residence district. From an order for judgment quashing the proceedings, respondents appeal.

Affirmed.Appeal from Superior Court, Essex County; Donnelly, Judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and WILKINS, JJ.

J. J. Foley, of Lynn, and F. J. Cloutman, of Salem, for petitioners.

M. S. Heaphy, of Boston, and A. Glovsky, of Beverly, for respondents.

WILKINS, Justice.

This petition for a writ of certiorari, brought by abutting landowners, seeks to quash proceedings had by the respondents, the mayor and the members of the board of aldermen of the city of Beverly, whereby Congregation Sons of Abraham, a religious corporation organized under G.L.(Ter.Ed.) c. 180, and located in Beverly, was granted the right to maintain a cemetery in certain land located in an area previously zoned as a single residence district. The ground for relief stated is that this is a new use of the land violative of the zoning ordinance. See G.L.(Ter.Ed.) c. 40, § 26, as appearing in St.1933, c. 269, § 1. A demurrer to the petition was overruled by a judge of the Superior Court, who entered an order for judgment quashing the proceedings. The respondents appealed.

It appears from the petition that on February 20, 1939, the board of aldermen, acting under G.L.(Ter.Ed.) c. 40, § 25, as appearing in St.1933, c. 269, § 1, passed ‘An ordinance to promote the health, safety, convenience and welfare of the inhabitants, to lessen the danger from fire, to protect property and to improve the city by regulating and restricting the location, construction and use of buildings and premises in the city of Beverly, and for the said purposes dividing the city into districts.’ Section 1(a) provides: ‘In order to regulate and restrict the location of trades, industries and other uses, the use, location, height and bulk of buildings, the size of yards and other open spaces, and the area of lots per family housed, the city of Beverly is hereby divided into the following classes of districts: Single Residence * * * Two Family Residence * * * General Residence * * * Apartment House * * * Local Business * * * Commercial * * * [and] Industrial Districts * * *.’ Section 2, relating to single residence districts, provides in subsection (a): ‘Use: No building or premises shall be erected, altered or used except for one or more of the following uses: (1) Single-family detached dwelling; (2) Church; (3) Club * * *; (4) Educational use; (5) Agriculture * * *; (6) Municipal recreational use; (7) Accessory use customarily incident to any of the above uses; (8) The renting of rooms * * *; (9) Customary home occupation carried on for gain * * *.’

On November 7, 1942, Congregation Sons of Abraham petitioned the local board of health for the right to maintain a cemetery and to use for burial purposes certain land on Cole Street, known as the Lovell Field. The board of health approved the petition, and the matter was then referred to the board of aldermen. On December 28 the board of aldermen voted that the petition be granted, and their action was approved by the mayor on December 29.

The respondents challenge the correctness of the judge's rulings on a number of grounds, none of which we think is valid.

In the first place, it is contended that as a matter of construction the zoning ordinance does not apply to cemeteries, and it is pointed out that in none of the established districts is any provision made for the use of land for cemetery purposes. The language, however, ‘regulating and restricting,’ as it does, the ‘use of * * * premises' is broad enough to cover cemeteries. This plainly falls within the powers conferred by G.L.(Ter.Ed.) c. 40, § 25, as appearing in St.1933, c. 269, § 1, which, in so far as material, reads: ‘For the purpose of promoting the health, safety, convenience, morals or welfare of its inhabitants, any city, except Boston, * * * may by ordinance * * * regulate and restrict * * * the * * * use of * * * land for trade, industry, residence or other purposes. For any or all of such purposes such an ordinance * * * may divide the municipality into districts of such number, shape and area as may be deemed best suited to carry out the purposes of [this section], and within such districts it may regulate and restrict the * * * use of land * * *.’ The words of the ordinance must be ‘construed according to their natural import in common and approved usage.’ Commissioners of Public Works v. Cities Service Oil Co., 308 Mass. 349, 360, 32 N.E.2d 277, 283. ‘It is a ‘familiar principle of interpretation that express mention of one matter excludes by implication other similar matters not mentioned.’' Boston & Albany Railroad v. Commonwealth, 296 Mass. 426, 434, 6 N.E.2d 613, 617;Spence, Bryson, Inc. v. China Products Co., 308 Mass. 81, 88, 30 N.E.2d 885. We cannot read into the ordinance an unexpressed exceptionexempting cemeteries from its scope. Gagnon v. Ainsworth, 283 Mass. 488, 490, 186 N.E. 498. This conclusion is supported by the fact that the ordinance contains the following: ‘Section 10. The foregoing requirements shall be subject to the following exceptions and regulations: (a) Where there is a street, alley, railroad, public park or cemetery along the rear of a lot, the depth of the rear yard may be reduced * * *.’ This shows that the framers of the ordinance were not unmindful of cemeteries, nor did they inadvertently overlook the necessity of providing for them.

The respondents contend also that the zoning statute cannot control the subject matter of cemeteries which they in effect argue are exclusively regulated by G.L.(Ter.Ed.) c. 114, §§ 34, 36, and further that, in any event, a zoning ordinance passed pursuant to a zoning statute cannot apply to corporations organized exclusively for religious...