Hood Industries, Inc. v. City Council of Leominster

• Decision Date: 16 March 1987
• Parties: HOOD INDUSTRIES, INC. et al. 1 v. CITY COUNCIL OF LEOMINSTER.
• Court: Appeals Court of Massachusetts

Page 189

505 N.E.2d 189

23 Mass.App.Ct. 646

HOOD INDUSTRIES, INC. et al. ¹ v. CITY COUNCIL OF LEOMINSTER.

Appeals Court of Massachusetts Worcester.

Argued Jan. 22, 1987.

Decided March 16, 1987.

Paul M. Lynch (Frances E. Rafferty, Marblehead with him), for plaintiffs.

John J. Curley, III, City Sol., for defendants.

Before PERRETTA, CUTTER and KASS, JJ.

CUTTER, Justice.

Hood Industries, Inc. (Hood), is a manufacturer of polyurethane foam and products fabricated from the foam. B.G.H. Realty Trust owns about 403,000 square feet of land (the locus) in Leominster in an industrial zone (where the manufacture of foam is permitted as of right). Hood occupies a building on the locus with a floor area of about 240,000 square feet. Hood plans to use the building on the locus for its manufacturing process.

There had been issued to Hood by the Leominster fire department prior to June 24, 1985, a permit to store not more than 1,665 gallons of class C liquids as defined in regulations of the Board of Fire Prevention Regulations (G.L. c. 22, § 14), found in 527 Code Mass.Regs. §§ 14.02-14.03 (1981), including Toluene Diisocyanate (T.D.I.), with a flash point of over 187 degrees Fahrenheit and therefore regarded as a relatively low fire risk.

Hood applied to the Leominster city council (the city's licensing body for this purpose, see G.L. c. 148, § 1, as appearing in St.1953, c. 230, § 1, defining "local licensing authority") for a license to store substantially larger amounts (45,600 gallons for the present) of class C fluids. All procedural preliminary formalities were complied with so that a hearing on the application (endorsed in behalf of the city's fire department) was held before the legal affairs committee of the council on June 24, 1985. At this hearing a variety of witnesses spoke against the license stirred by widespread local opposition to the storage of T.D.I. on the locus, to the toxic character (with various serious health risks) of T.D.I., and to the risk of spills when chemicals and products were being taken to the locus.

Much was made of the circumstance that the locus was not far from a "heavy" residential area and from a nursing home and a school. There was reference in the hearing to what was represented as Hood's allegedly poor "track record" at its plant in another community. Counsel for the objectors said in his opening to the committee, "There is more than just flammables involved here. We are involved with the storage of toxic dangerous chemicals."

The legal affairs committee voted informally to report to the council adversely to Hood's application. The chairman of the legal affairs committee so reported and the full council voted unanimously to deny the permit.

Hood then brought in the Superior Court an action in the nature of certiorari. See G.L. c. 249, § 4; Mass.R.Civ.P. 81(b), 365 Mass. 841 (1974). This was heard on November 20 and 22, 1985, before a Superior Court judge. He made findings on February 25, 1986, affirming the city council decision to deny the requested license. Hood appealed. Hood's motions to amend the findings were denied.

The principal contention made by Hood before us is that the city council was not authorized under G.L. c. 148, § 13, to consider any issues other than that of the flammability of the class C substances to be stored by Hood and the danger of fire which would result from the storage of these substances in the quantities for which a license was requested. For essentially the reasons stated by the trial judge (and largely on decided cases cited by him) we affirm his decision.

The judge found the facts essentially as already stated in this opinion. He had before him at least the portions of the transcript of the hearing before the city council and its legal affairs committee which appear in the record furnished to this court by Hood's counsel. He listed (as we have done) considerations which he recognized the council ("a political body") took into account in their consideration of Hood's application, and which entered into the council's ultimate vote. He concluded that there was nothing "arbitrary, whimsical[,] or capricious about the ... denial of [Hood's] application."

The judge also found no "evidence that ... [Hood was] treated unequally under the law. There are other plastic fabricators in the same area where ... [Hood is] located. Although many of them store liquids which are rated as class A [more flammable than class C] chemicals, this application ... was the first of its kind for the storage of this chemical of the class C variety.... [S]ome council members inspected the ... [Hood] facilities."

The judge found further that the record did not disclose "any confusion on the part of the members of the city council or on the part of any municipal officials reporting to them." For the "members [of the council] to consider constituent input and opinion is not contrary to the law.... There is no evidence here that the hearings were abbreviated" or that the council members were "improperly predisposed to deny the license sought by" Hood. "[M]embers of the [c]ouncil were investigating the subject matter of the application weeks before ... the hearings. At least one council member was disposed against the application before the hearings commenced." On the night of the hearings he cast his vote to deny the license.

On these findings the judge correctly ruled that it was not improper for members of the council "to seek information outside ... the formal hearing, [citing Craven v. State Ethics Commn., 390 Mass. 191, 196-199, 454 N.E.2d 471 (1983) ] or to be sensitive to constituents' pressures or to come to the hearing with a preference as long as no improper motivation such as extraordinary allegiance or monetary gain is present."

The judge concluded reasonably that the council had the benefit of a presumption that they were acting honestly and with appropriate motives. See Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 293-294, 407 N.E.2d 363 (1980). Examination of the hearing transcript does not indicate that counsel for Hood were refused permission to present any testimony or arguments which they wished to offer, or that they objected to any testimony which was offered by others, or that they sought to cross-examine any witnesses opposing the license. ² Hood's principal representative was afforded opportunity for rebuttal and to answer questions from various council members. We perceive, in the circumstances, no conduct on the part of the council sufficient to rebut the presumption of regularity.

The judge also concluded that the council's action was supported by sufficient evidence and was neither arbitrary nor capricious. In respect of fire prevention, the breadth (a) of a licensing power of this type and (b) of the considerations which may be brought to bear on the licensing body are illustrated by the following decisions. See Scudder v. Selectmen of Sandwich, 309 Mass. 373, 376-377, 34 N.E.2d 708 (1941, "public interest"); Kidder v. City Council of Brockton, 329 Mass. 288, 290-291, 107 N.E.2d 774 (1952, traffic...