Foster from Gloucester, Inc. v. City Council of Gloucester

• Decision Date: 30 September 1980
• Citation: 10 Mass.App.Ct. 284,407 N.E.2d 363
• Parties: FOSTER FROM GLOUCESTER, INC. et al. 1 v. CITY COUNCIL OF GLOUCESTER et al. 2
• Court: Appeals Court of Massachusetts

Page 363

407 N.E.2d 363

10 Mass.App.Ct. 284

FOSTER FROM GLOUCESTER, INC. et al. ¹ v. CITY COUNCIL OF GLOUCESTER et al. ²

Appeals Court of Massachusetts, Essex.

Argued April 22, 1980.

Decided July 17, 1980.

Further Appellate Review Denied Sept. 30, 1980.

Stanley V. Ragalevsky, Boston (Michael L. Blau, Boston, with him), for plaintiffs.

Norman C. Ross, City Sol., for defendants.

Before GRANT, BROWN and NOLAN, JJ.

GRANT, Justice.

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, § 1. ³ The plaintiffs have appealed from a final judgment declaring the validity of the council's action. The case was submitted to a judge of the Superior Court solely on stipulated portions of the records of the council, including the stenographic transcripts of the public hearings which preceded the council's ultimate decision to revoke the licenses. As the case is here on the same records, the judge's views on the various issues are not entitled to any special weight. Compare Southern Worcester County Regional Vocational Sch Dist. v. Labor Relations Commn., 377 Mass. ---, --- - --- ^a, 389 N.E.2d 389 (1979).

Some facts are not in dispute. The individual plaintiff is the owner of certain land and buildings lying on Eastern Avenue in Gloucester on which the corporate plaintiff conducts its business, which includes fueling, servicing and repairing diesel drawn tractor-trailer trucks. The buildings and the island containing the fuel pumps are located on land now zoned for industrial uses. The only safe and practical means of vehicular egress from the fuel pumps is a driveway which leads back to Eastern Avenue over land which is zoned for residential uses and in which the plaintiffs claim a nonconforming use. Except for a gasoline filling station located on the opposite side of the street, the surrounding neighborhood is predominately residential in character.

Two separate licenses for the storage and sale of diesel fuel were granted to the individual plaintiff in 1949 and 1951. ⁴ In 1976, following public hearings, the council, as the licensing authority under G.L. c. 148, § 13, revoked both licenses and granted new ones to the corporate plaintiff which contained the restrictions set out in the margin. ⁵ The plaintiffs do not challenge the validity of the actions taken by the council in 1976, although they claim that certain of the restrictions are so vague and ambiguous as to preclude their enforcement.

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. ⁶ Public hearings were held on September 26, October 11 and December 5, 1978, at all of which the plaintiffs were represented by counsel.

At the September 26 hearing several neighbors complained of what they regarded as numerous violations of the restrictions found in the licenses. Further complaints were voiced at the October 11 hearing, at the conclusion of which the council voted (eight to one) to revoke the licenses, and also that "just for the sake of legality . . . (a committee of the council) meet with the (c) ity (s)olicitor to write up the reasons for the revocation and record it in the books so that there would never be a question the reasons were not given." ⁷

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." ⁸ Accompanying the foregoing was a letter from the city clerk stating that the council had been advised by the city solicitor that its decision should be regarded as only tentative because it was based in part on the contents of certain police reports which had not previously been supplied to the plaintiffs and of which they were unaware. Copies of those reports were supplied with the letter, which advised that the plaintiffs would be given an opportunity to address the council in explanation or rebuttal of the evidence contained in the reports.

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 unanimously to "reaffirm" its vote of October 11. Further facts will appear as necessary to the discussion of the particular contentions raised by the plaintiffs.

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, 31 N.E.2d 526 (1941). Compare Manchester v. Selectmen of Nantucket, 335 Mass. 156, 158-159, 138 N.E.2d 766 (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, 31 N.E.2d 526.

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, 50 N.E.2d 817 (1943), in both of which the notice given by the licensing authority misled a licensee as to the possible grounds for revocation which he should be prepared to meet at the public hearing. ⁹ The present case is more nearly akin to the Manchester case, in which the infirmity in the notice (compare note 6, supra ) lay in its failure to advise the plaintiff of any particular ground on which her license might be revoked. In that case the court said: "The petitioner should have asked for additional information concerning the charges that she was to meet; and if upon obtaining such information she needed further time in which to prepare her case she could have asked for a postponement. . . . If these requests had been denied a very different question would be presented. The petitioner, however, did none of these things. We are of opinion that in these circumstances she is in no position to challenge the suspension of her license." 335 Mass. at 159, 138 N.E.2d at 768. See also 1 Davis, Administrative Law Treatise § 8.04, at 525-528 (1958). Compare G.L. c. 30A, § 11(1).

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 deemed to be merely a personal privilege." The quoted language gives rise to an additional claim by the plaintiffs, a claim that the infirmity in the formal notice which has already been adverted to resulted in their having been deprived of property rights without due process. There is no longer room for doubt that a license granted under a statutory provision such...