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14

- P

- 1612 Appeals Court
CUMBE RLAND FARMS, INC. vs . CITY COUNCIL OF MARLBOROUGH.

No. 14

- P

- 1612. Middlesex. May 11, 2015.

- October 15 , 2015. Present: Cypher, Meade, & Massing, JJ.

Practice, Civil , Relief in the nature of certiorari. License
. Municipal Corporations , City council
. Administrative Law , Judicial review.

C ivil action commenced in the Superior Court Department on November 12, 2013.
The case was heard by Douglas H. Wilkins , J. , on a motion for judgment on the pleadings.

Carey H. Smith for the plaintiff. Cynthia M. Panagore Griffin for the defendant.

CYPHER, J. Cumberland Farms , Inc. (Cumberland Farms) , appeals from a judgment of the Superior Court upholding the denial by the c ity c ouncil of Marlborough (council) of Cumberland Farm s's application for a G. L. c. 148 , § 13 , fuel storage license . Cumberland Farms argu es that the judge applied2

an incorrect standard of review and that he based his decision on improper factors
. Background
. P ursuing a plan for a gasoline station and a convenience store in the city of Marlborough, Cumberland Farms filed with the c ouncil application s for a special permit, see G. L. c. 40A, § 9, and for a fuel storage license , see G. L.

c. 148, § 13
. T wo meeting s of the council's urban affairs committee were held between June , 2012 , and March , 2013, on the special permit application ; because the council did not consider the final conditions to the special permit, it issued by constructive grant on March 28, 2013. T he urban affairs committee then discussed the fuel storage license application on May 21, 2013, and June 19, 2013, but failed to take action at the latt e r meeting. On August 2, 2013, Cumberland Farms filed a complaint in the Superior Court seeking injunctive relief to requir e the council to take action
. Before th e complaint was considered in th at court, the council voted on September 23, 2013, to deny the application for a fuel storage license , without providing any findings or an explanation of it s reasoning.
O n November 12, 2013, Cu mberland Farms filed in Superior Court the within action in the nature of c ertiorari, see G. L.

c. 249, § 4, seeking judicial review of the council's decision. Following a hearing on Cumberland Farms' s motion for judgment on3

the pleadings , a judge den ied Cumberland Farms' s motion and affirm ed the council's decision. J udgment entered , and t his appeal followed. Discussion
. Cumberland Farms requests that the judgment be reversed, arguing that the judge erroneo usly applied the arbitrary and capricious standard of review to the council's denial and that his decision is based on anecdotal evidence and conjecture
.

" G eneral L aws c. 148, § 13,
. . . does not provide a right of appeal to any court; in the absence of a provision for judicial review of [a licensing authority 's ] decision, G. L.

c. 249, § 4, provides that an aggrieved person may seek relief in a civil action in the nature of certiorari
. . . . We reaffirm that a civil action in the nature of certiorari is the sole relief available to a party aggrieved by a discretionary decision of a local licensing authority." Bermant v. Selectmen of Belchertown , 425 Mass. 400, 403

- 404 (1997) (footnote omitted )
. Compare Johnson Prods., Inc
. v. City Council of Medford , 353 Mass. 540, 545 , cert. denied , 392 U.S. 296 (1968)
. As such, Cumberland Farms properly sought relief through an action in the nature of certiorari.
Under G. L. c. 249, § 4, the standard of review "may vary according to the nature of the action for which review is sought." Forsyth Sch. for Dental Hygienists v. Board of4

Registration in Dentistry , 404 Mass. 211, 217 (1989). For example, in Saxon Coffee Shop, Inc . v. Boston Lic. Bd ., 380 Mass. 919, 924

- 925 (1980), the substantial evidence standard of review applied where a revocation proceeding was required by statute and was adjudicatory in nature. See Receiver of the Boston Hous. Authy . v. Commissioner of Labor & Indus ., 396 Mass. 50, 59 (1985). But in Forsyth Sch. for Dental Hygienists , supra at 217

- 218, the arbitrary and capricious standard of review applied because the board was free to use its judgment and to exercise administrative dis cretion. Here, the judge properly found that the council's proceedings were not adjudicatory in nature. He correctly noted that G. L. c. 148, § 13, does not "provide narrow and objective criteria for the Council to apply in evaluating applications."
C ontrast Caswell v. Licensing Commn. for Brockton , 387 Mass. 864, 878 (1983). The meeting at which the council voted to deny the application was not an evidentiary proceeding. The judge stated that council "members expressed concerns over a range of topic s including leaks and accidents affecting the nearby reservoir, compensation for affected neighbors, hours of operation, lighting, noise and odors, sidewalks on Walker Street, traffic, use of the station by large diesel trucks, opposition from residents, a nd competition with existing businesses." These concerns were recorded in a transcript of5

the meeting as opinions of the members, not as factual findings. As such, it is clear that t he decision of the council, acting as the licensing authority, wa s a dis cretionary action, meriting review only for an arbitrary or capricious decision . See E.A.D. Realty Corp . v. Selectmen of Shrewsbury , 6 Mass. App. Ct. 826, 828 (1978)
. Th e arbitrary and capricious standard of review "requires only that there be a ration al basis for the decision." Howe v. Health Facilities Appeals Bd ., 20 Mass. App. Ct. 531, 534 (1985). Furthermore, i n exercising its wide discretion to issu e or withhold licenses, a licensing authority may take into account other factors affecting public interests and welfare
. See Scudder v. Selectmen of Sandwich , 309 Mass. 373, 376 (1941); Kidder v. City Council of Brockton , 329 Mass. 288, 290 (1952)
. "There is no longer any room for doubt that factors [ such as noise, traffic , and adjacent residential areas] may properly form the basis of
. . . a city council's decision to deny an appl ication under [G. L. c. 148,] § 13." E . A . D . Realty Corp
. , 6 Mass. App. Ct. at 827 . See Hood Indus., Inc
. v. City Council of Leominster , 23 Mass . App. Ct. 646, 650 (1987). " Within the area of discretion the power lies in the licensing authority and not in the court." Scudder , supra . 1

1 The judge, sua sponte, wondered whether "[o]ne might also question a decision [under G. L. c. 148, § 13,] that amounts to6

In very similar circumstances, the court in Kidder , 329
Mass. a t 290

- 291, stated: "The council may have reasoned that another station would tend to increase traffic at an already burdened intersection ; that [vehicles entering and exiting the station] would further interfere with the free flow of traffic; that the risk of accidents to children and others woul d be increased; that there would be additional noise and odors; and that there was no counterbalancing public demand for another station in this immediate vicinity. These were considerations for the council to weigh .
. . . They are not matters for the c ourt to pass upon." While the council here ha d no burden to "justify the denial
of a license" and had no "duty to state reasons for the denial," Johnson Prods., Inc
. , 353 Mass. at 543, the judge carefully examined these concerns , as discussed, supra . We conclude that the judge correctly determined that there was a rational basis for the council to exercise its discretion and that the council's decision was not arbitrary or capricious. No error of law or abuse of discretion appears. Judgment affir med
.

regulation of a permitted land use without the protection of the procedures, uniformity requirements , and de novo review provided by G. L. c. 40A, §§ 4, 17." This question was not raised in the present case. Neither party has based any argument on the constructive grant of the special permit, and in any event "[w]e perceive nothing in G. L. c. 148, § 13, as amended, or in c. 40A , which indicates to us that a decision .
. . in a zoning matter is binding on the local licensing authority." Davidson v. Selectmen of Duxbury , 358 Mass. 64, 67

- 68 (1970).