10 Mass. App. Ct. 284 | Mass. App. Ct. | 1980
This is an action in the nature of certiorari (G. L. c. 249, § 4, as appearing in St. 1973, c. 1114, § 289) brought in the Superior Court for the purpose of quashing a decision of the city council of Gloucester (council) by which it purported to revoke two licenses for the storage and sale of diesel fuel which the council had granted to the corporate plaintiff in 1976 under the provisions of G. L. c. 148, § 13, as amended through St. 1959, c. 353, § l.
Some facts are not in dispute. The individual plaintiff is the owner of certain land and buildings lying on Eastern
Two separate licenses for the storage and sale of diesel fuel were granted to the individual plaintiff in 1949 and 1951.
At a meeting of the council held on July 18, 1978, residents of the neighborhood voiced numerous complaints as to the manner in which the corporate plaintiff had been conducting its business, supposedly in violation of the restrictions. The individual plaintiff was present and addressed the council. At the conclusion of the meeting the council voted to conduct a public hearing to determine whether the licenses should be revoked, subjected to additional restrictions, or clarified. The notice of that hearing which was given to the plaintiffs and published in a local newspaper is set out in the margin.* ****
At the September 26 hearing several neighbors complained of what they regarded as numerous violations of the restric
On October 31 the plaintiffs’ counsel received from the city clerk a “Proposed Notice of Decision,” including a “Statement of Reasons,” in which the council purported to make findings of fact and rulings of law in support of its decision. The council purported to find that the individual plaintiff had “violated on a continuous basis the conditions and restrictions prescribed in his license” and that modification or clarification of the conditions would be futile because “the neighborhood problems stem from the licensee’s continuous violation of the conditions and restrictions and not from their lack of clarity or comprehensiveness.”
At the request of the plaintiffs a further public hearing was held on December 5, at which the plaintiffs’ counsel discussed each police report individually, and effectively demonstrated the dubious materiality of most of the reports. At the conclusion of that hearing the council voted unani
The plaintiffs contend that the notice and hearing which they were accorded prior to revocation of the licenses were inadequate. Specifically, they contend that the formal notice did not inform them with sufficient particularity of the charges against them or of the action that the council might propose to take; that they were denied an opportunity to cross-examine adverse witnesses; that they were informed of the council’s reliance on police reports too late to permit effective explanation or rebuttal thereof; that certain evidence was improperly admitted; that the members of the council were biased against them; that the council’s decision to revoke the licenses was not supported by an adequate statement of findings and reasons; and that the restrictions in the licenses were impermissibly vague. They contend in particular that the findings that the council did make are not supported by substantial evidence.
1. Adequacy of notice, (a) Under State law. The holder of a license for the storage and sale of petroleum products is expressly entitled by statute (G. L. c. 148, § 13) to a notice and hearing before his license can be revoked. The notice given must state the ground(s) upon which the licensing authority intends to proceed with sufficient particularity to appriSe the licensee of the charges to be met and enable him to prepare his case. Higgins v. License Commrs. of Quincy, 308 Mass. 142, 145-146 (1941). Compare Manchester v. Selectmen of Nantucket, 335 Mass. 156, 158-159 (1956). Mere defects in the form of the notice will not render it invalid, but the notice, taken in conjunction with the hearing, must be sufficient to accomplish substantial justice. Higgins v. License Commrs. of Quincy, 308 Mass. at 146.
The present case is not one such as the Higgins case or Becker Transp. Co. v. Department of Pub. Util., 314 Mass. 522, 526-527 (1943), in both of which the notice given by the licensing authority misled a licensee as to the possible
In this case the plaintiffs recorded their objection to the asserted deficiency in the formal notice but made no effort to obtain any specification of charges or any request for additional time to prepare their case, very likely because the individual plaintiff had been present at the July 18 meeting of the council at which he had heard the neighbors complain of numerous violations of the restrictions found in the licenses and had heard members of the council grapple with the language which ultimately appeared in the published notice of the hearing.
(b) Under constitutional principles. General Laws c. 148, § 13, expressly provides that a duly recorded license granted under that section “shall... be deemed a grant attaching to the land described therein and as an incident of ownership thereof running with the land and shall not be
Constitutional due process does not, however, require any particular form of notice, so long as the procedure adopted protects the substantial rights of the licensee. NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 350-351 (1938). “It is . . . well settled that ‘[n]otice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop.’ ... A party may not ‘shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received.’” Commonwealth v. Olivo, 369 Mass. 62, 69 (1975). We are of opinion that the plaintiffs’ failures to request further specifications of charges and a postponement of the hearings once they had heard the evidence are also dispositive of their claim that the formal notice was constitutionally inadequate.
2. Right to cross examination. When the council sat on the question of the revocation of the licenses, it was acting in a quasi judicial capacity. Higgins v. License Commrs. of Quincy, 308 Mass. at 145. The plaintiffs were entitled to a full and impartial hearing which, although not necessarily conforming to the procedural and evidentiary rules applicable to proceedings in the courts, would assure that substan
The plaintiffs were not denied an opportunity for reasonable cross examination of opposing witnesses. They concede that such cross examination was not actually forbidden but urge that it was rendered practically impossible by the alleged inadequacy of notice, by lack of subpoena power, by the absence of witnesses at the hearing
3. Late disclosure of the police reports. The plaintiffs were clearly entitled to disclosure of all the evidence on which the council relied in reaching its decision. Moran v.
4. Allegedly erroneous admission of evidence. There is no merit to the contentions that the council committed prejudicial error (a) in allowing a witness to testify from a written list of alleged violations of the license restrictions without requiring that the list be submitted in evidence and (b) in the council’s consulting the minutes of certain of its prior proceedings. It does not appear that any objection was voiced to the first procedure; if there was error (as to which see Moran v. School Comm. of Littleton, 317 Mass. at 596-597), it does not appear to have been prejudicial. The limited purpose for which the minutes were consulted was clearly disclosed; again, there was no objection.
5. Bias. The transcripts of the hearings reveal expressions of irritation and impatience with the plaintiffs’ counsel on the part of some of the members of the council, attributable at least in part to the council’s failure to obtain considered legal advice sooner than it did. Compare Harris v. Board of Registration in Chiropody (Podiatry), 343 Mass. 536, 540 (1962). However, “[ijmpatience, discourtesy or bad manners, regrettable though they are in those exercising the judi
6. Statement of reasons and findings. The council expressly based its decision solely on its conclusion that the licensee had “violated on a continuous basis the conditions and restrictions” of the licenses that the “ the neighborhood problems stem from the licensee’s continuous violation of the conditions . . . and not from their lack of clarity or comprehensiveness.”
As matters now stand, the correctness of the council’s decision is essentially unreviewable. Compare Leen v. Assessors of Boston, 345 Mass. 494, 501-502 (1963), and cases cited; Rhodes v. State Examrs. of Plumbers, 4 Mass. App. Ct. 767, 768 (1976). Thus, it is impossible to determine from the present record whether that decision was based on interpretations of the license restrictions which were arbitrary, unreasonable or capricious (see Finkelstein v. Board of Registration in Optometry, 370 Mass. 476, 478 [1976]; Rhodes v. State Examrs. of Plumbers, 4 Mass. App. Ct. at 768) or whether the decision was reached after due consideration of the relevant factual issues. See Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
We are of opinion that that course should have been followed in the instant case and that the Superior Court should have retained jurisdiction over the case and remanded it to the council with a direction that the council prepare and submit to the court a detañed, comprehensive exposition of all the subsidiary facts found by it with respect to each violation of each of the restrictions found in the licenses which was relied on by the countil in reaching its ultimate conclusions that there had been continuous violations of those restrictions. Such findings wül obviate the difficulties in understanding the actual basis of the councü’s decision which have been adverted to in this part of our opinion. Only with the benefit of such findings wül the court be in a position to determine whether the councü’s decision is tainted with error of law or abuse of discretion, or comports with substantial justice.
7. Standard of review of the council’s findings of fact. Although the question is not whoUy free from doubt, we are of opinion that the councü’s findings of fact must be reviewed under the “substantial evidence” standard rather than the “arbitrary, capricious or an abuse of discretion” standard. See and compare Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 922-925, 930 (1980), and cases cited. Contrast McSweeney v. Town Manager of Lexington, 379 Mass. 794, 799-800 (1980). Of course, no review of those findings can be had until they are received by the court.
The judgment is vacated, and the case is remanded to the Superior Court for further proceedings not inconsistent with this opinion.
So ordered.
The amendment of § 13 which was effected by St. 1978, c. 434, is not material to the present proceedings.
At some time a license for the storage and sale of gasoline was also granted to the individual plaintiff. That license is not at issue in these proceedings.
“1. The residentially zoned area of Foster’s property — not including that area shown as a way on a plan attached hereto entitled ‘location of way at land of Charles C. Foster, Eastern Avenue, Gloucester, Massachusetts’, dated March 1976 and signed by James Mopotoski, Surveyor, and bearing Sk. No. 40,107 — shall not be used for any commercial use whatsoever. This prohibition shall include any other crossing or recrossing of the residentially zoned area in order to gain access to the commercial area.
“2. No trailer with a refrigeration unit running shall be permitted to remain on the premises overnight. If a cab is on the premises for actual repair, the trailer must be moved elsewhere for the night.
“3. No cab being serviced nor any refrigeration unit shall be permitted to stay running after the hour of 8:00 p.m.
“4. No diesel fuel shall be dispensed after the hour of 7:00 p.m. nor before the hour of 9:00 a.m. This condition shall be enforced by preventing access or egress to or from the diesel pumps between the above mentioned hours. Foster’s, Inc. shall inform the truckers of these opening and closing hours by posting conspicuous signs at prominent locations on the property.
“5. Serious effort shall be made to insure slow safe operation by the trucks entering and leaving the premises, which effort shall include the posting of conspicuous signs at prominent locations on the property, said*287 signs to contain the following wording: ‘Caution — Children in Area — Drive Slowly.’
“[6]. That a curbing be installed on the Westerly side of the Way, referred to in the amended paragraph |1, and extended Easterly across the twenty-five (25) feet of residential land allowed by the Zoning Ordinance to be used for business.”
“NOTICE OF PUBLIC HEARING Foster of Gloucester, Inc. The City Council will hold a Public Hearing on TUESDAY, SEPTEMBER 26, 1978 at 7:30 p.m. in the Council Chamber, City Hall relative to the following subject matter: (a) As to whether or not any or all of the existing permits issued to Foster of Gloucester, Inc., located at 107 Eastern Avenue, should be revoked, or to determine whether additional restrictions should be imposed on the existing permits, (b) Or whether or not existing restrictions should be further clarified and-or reworded. Said Public Hearing will be held in accordance with Section 1.4.2.2 (e) (f) of the Zoning Ordinance. At said Public Hearing all interested persons may be heard. By Vote of the City Council Fred J. Kyrouz, City Clerk.” Subsection (f) of the zoning ordinance reads: “Failure to comply with any conditions, regulations or limitations imposed by the City Council on any permit issued by it shall be deemed sufficient grounds for revoking the permit after notice and hearing being given to the person holding the permit or operating and maintaining the activity permitted.”
The city solicitor had been present at the October 11 hearing, but it does not appear that he was actively advising the council during the course of that hearing.
Throughout the hearings the council appears to have regarded the individual plaintiff as if he were the sole licensee. Nothing turns on this misconception.
The plaintiffs do not seriously contend that they were misled by the notice’s reference to an irrelevant subsection of the zoning ordinance. To the contrary, at the September 26 hearing their counsel went to some length in an effort to educate the council as to the distinctions between a license granted under G.L. c. 148, § 13, and a special permit granted under a zoning ordinance.
We are not told what the absent witnesses would have said.
Accordingly, we need not decide whether a statement of reasons is required in a case such as the present, in which an administrative decision is reached on the basis of evidence introduced in quasi judicial proceedings which are not subject to the requirements of G. L. c. 30A, § 11(8). See Hornsby v. Allen, 326 F.2d 605, 608-609 (5th Cir. 1964); Corr v. Mattheis, 407 F. Supp. 847, 853-854 (D.R.I. 1976); Trumbull Div., Owens Corning Fiberglass Corp. v. Minneapolis, 445 F. Supp. 911, 917 (D. Minn. 1978). Compare Cefalo v. Board of Appeal of Boston, 332 Mass. 178, 181 (1955), with Kidder v. City Council of Brockton, 329 Mass. at 289-291, Johnson Prod., Inc. v. City Council of Medford, 353 Mass. 540, 543, appeal dismissed and cert. denied, 392 U.S. 296 (1968), and Bennett v. Aldermen of Chelsea, 361 Mass. 802, 807 (1972). Contrast Leen v. Assessors of Boston, 345 Mass. 494, 499-503 (1963).