Foster v. Mayor of City of Beverly

Decision Date29 February 1944
Citation53 N.E.2d 693,315 Mass. 567
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
PartiesSADIE A. FOSTER & others v. MAYOR OF BEVERLY & others.

January 26, 1944.

Present: FIELD, C.

J., LUMMUS, QUA RONAN, & WILKINS, JJ.

Zoning. Cemetery.

Corporation Religious corporation, Cemetery corporation. Constitutional Law, Zoning, Police power. Beverly.

The zoning ordinance of Beverly, purporting among other things to regulate and restrict the "use of . . . premises" in the city and showing by other language that its framers were not unmindful of cemeteries, was not to be construed as exempting cemeteries from its application although there was no provision allowing use of land for cemeteries in any of the zoning districts established by the ordinance. Action by the mayor and aldermen of a city under G. L. (Ter. Ed.) c 114,

Section 34 granting a permit for the use of certain premises for cemetery purposes after such use had been approved by the board of health, should be quashed if such use would be in violation of the city's zoning ordinance.

A corporation organized under G. L. (Ter. Ed.) c. 180 exclusively for religious purposes is not entitled by Section 9A to use land for cemetery purposes in violation of the local zoning ordinance.

The zoning ordinance of Beverly, adopted at a time when there were in use at least four cemeteries of substantial size within the city limits, was not invalid as unreasonable in that it contained no provision allowing land to be used for cemetery purposes in any of the zoning districts.

PETITION for a writ of certiorari, filed in the Superior Court on February 11, 1943.

The case was heard by Donnelly, J. In this court it was submitted on briefs.

M. S. Heaphy & A.

Glovsky, for the respondents.

J. J. Foley & F.

J. Cloutman, for the petitioners.

WILKINS, J. 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, Section 26, as appearing in St. 1933, c. 269, Section 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, Section 25, as appearing in St. 1933, c. 269, Section 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 Lovett 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, Section 25, as appearing in St. 1933, c. 269, Section 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. "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. Spence, Bryson, Inc. v. China Products Co. 308 Mass. 81, 88. We cannot read into the ordinance an unexpressed exception exempting cemeteries from its scope. Gagnon v. Ainsworth, 283 Mass. 488 , 490. 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...

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