Chase v. Board of Selectmen of Littleton

• Decision Date: 10 April 1974
• Citation: 310 N.E.2d 144,2 Mass.App.Ct. 159
• Parties: Lyman M. CHASE v. BOARD OF SELECTMEN OF LITTLETON.
• Court: Appeals Court of Massachusetts

Page 144

310 N.E.2d 144

2 Mass.App.Ct. 159

Lyman M. CHASE v. BOARD OF SELECTMEN OF LITTLETON.

Appeals Court of Massachusetts, Middlesex.

Argued March 20, 1974.

Decided April 10, 1974.

Charles P. Lessa, Ayer (James L. Haley, Ayer, with him), for petitioner.

Fredric N. Halstrom, West Roxbury, for respondent.

Before ROSE, GOODMAN and GRANT, JJ.

GRANT, Justice.

The petitioner has appealed (G.L. c. 213, § 1D, as amended through St.1957, c. 155; G.L. c. 211A, § 10(c), inserted by St.1972, c. 740, § 1) from an order of the Superior Court for judgment dismissing his petition for a writ of certiorari brought to quash a decision of the board of selectmen of the town of Littleton (board) denying his application under G.L. c. 148, § 13 (as most recently amended by St.1959, c. 353, § 1) for a license for the storage and sale of gasoline and other products, and for an order requiring the board to issue such a license to him (G.L. c. 249, § 4, as amended through St.1963, c. 661, § 1). The case is here on the petition, the return (see Davidson v. Selectmen of Duxbury, 358 Mass. 64, 66, 260 N.E.2d 695 (1970)) and answer of the board, and 'findings' by the trial judge which go no further than to summarize certain of the evidence appearing in the return.

We hold that the board could not properly have granted the application which was before it in this case because of the failure of the application to 'have endorsed thereon the certificate of approval or disapproval of the head of the fire department,' as required by G.L. c. 148, § 13, as amended. ¹

Although the discretionary power which § 13 entrusts to a 'local licensing authority' to issue or withhold licenses extends beyond the mere question of fire risk and involves other considerations affecting the public interests (Scudder v. Selectmen of Sandwich, 309 Mass. 373, 376, 34 N.E.2d 708 (1941); Kidder v. City Council of Brockton, 329 Mass. 288, 290--291, 107 N.E.2d 774 (1952); Johnson Prod., Inc. v. City Council of Medford, 353 Mass. 540, 54o, 233 N.E.2d 316 (1968), app. dism. and cert. den. 392 U.S. 296, 88 SCt. 2061, 20 L.Ed.2d 1108 (1968); Davidson v. Selectmen of Duxbury, 358 Mass. 64, 65--66, 260 N.E.2d 695 (1970)), we cannot overlook the fact that the primary function of the license required by § 13 is the supervision and regulation of a business or land use which, without proper supervision and regulation, might become a menace to public safety by reason of the hazards of fire and explosion. Saxe v. Street Commrs. of Boston, 307 Mass. 495, 498, 499, 30 N.E.2d 380 (1940). Higgins v. License Commars. of Quincy, 308 Mass. 142, 144, 31 N.E.2d 526 (1941). Fallon v. Street Commrs. of Boston, 309 Mass. 244, 246, 34 N.E.2d 689 (1941). Nor can we overlook the fact that § 13 is found in and is distinctly related to other sections of a chapter of the General Laws (c. 148) which is entitled 'Fire Prevention.' See FrontierResearch Inc. v. Commissioner of Pub. Safety, 351 Mass. 616, 619--620, 222 N.E.2d 854 (1967); I. Baron & Sons, Inc. v. Eastern Storage Industrial Park Corp., 355 Mass. 245, 252--253, 244 N.E.2d 271 (1969).

Numerous other sections of c. 148 confer extensive powers and duties on the 'head of the fire department,' who is referred to in § 13, with respect to fire prevention, the issuance of permits, and the conduct of investigations as to the causes of and the conditions likely to cause fires. See §§ 2, 4, 5, 10A, 23, 24, 27A, 28, 29, 30, 33 and 50. See, generally, Chief of the Fire Dept. of Boston v. Sutherland Apartments, Inc., 346 Mass. 685, 195 N.E.2d 536 (1964). For these reasons, we believe that it was the intention of the Legislature that the 'local licensing authority' should not grant an application for a license under § 13 unless or until it should have before it the 'certificate of approval or disapproval of the head of the fire department.' The importance of the contents of that certificate, and indeed of the whole question of danger from fire and explosion, is emphasized by the last paragraph of § 13, which provides for an appeal by '(a)ny person aggrieved by the granting of a license hereunder on the ground that the exercise thereof would constitute a fire or explosion hazard' to the State Fire Marshal 'who, after notice and hearing, shall finally determine whether such a hazard would result' and who is to reverse the action of the authority granting the license '(1)f, in his opinion, such a hazard would result.' See Colantuoni v. Selectmen of Belmont, 326 Mass. 778, 780, 96 N.E.2d 870 (1951).

We recognize that we have decided this case on a ground different from any which has been argued by the parties and, perhaps, different from one which may have been relied on by the board. ² However, we cannot close our eyes to the imperative of the statute, and we are clear that it is not out function to exercise our judgment on the existence or not of the hazards of fire or explosion. See BENNETT V. ALDERMEN OF CHELSEA, MASS. (1972), 282 N.E.2D 669^A and cases cited. Our decision will not stand in the way of the filing and processing of a new and proper application. Albano v. Selectmen of South Hadley, 341 Mass. 494, 496, 170 N.E.2d 685 (1960). BENNETT V. ALDERMEN OF CHELSEA, MASS. (1972), 282 N.E.2D 669^B.

Order for judgment dismissing petition affirmed.

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