Jet-Line Services, Inc. v. Board of Selectmen of Stoughton

• Decision Date: 20 April 1988
• Docket Number: JET-LINE,No. 87-791,87-791
• Citation: 521 N.E.2d 1035,25 Mass.App.Ct. 645
• Parties: SERVICES, INC. v. BOARD OF SELECTMEN OF STOUGHTON.
• Court: Appeals Court of Massachusetts

Page 1035

521 N.E.2d 1035

25 Mass.App.Ct. 645

JET-LINE SERVICES, INC. v.BOARD OF SELECTMEN OF STOUGHTON.

No. 87-791.

Appeals Court of Massachusetts Norfolk.

Argued March 11, 1988.

Decided April 20, 1988.

John W. Giorgio, Boston, for defendant.

Warren D. Hutchison, Boston, for plaintiff.

Before ARMSTRONG, KAPLAN and DREBEN, JJ.

ARMSTRONG, Justice.

This is an appeal by the board of selectmen of Stoughton (board) from an order entered June 10, 1987, by a single justice of this court, the effect of which was to continue in effect, pendente lite, a temporary restraining order which had been entered originally in the Superior Court.A judge of that court had previously refused to continue the restraining order.Had that refusal prevailed, the plaintiff, Jet-Line, would have been without the local permits (under G.L. c. 148, § 13) thought necessary to store oil at its hazardous waste treatment facility in Stoughton, with the result that the facility would have had to cease operation while the underlying litigation concerning the validity of certain permit revocations remained undecided.

There is no question that a single justice of this court has the authority to enter such an order, Edwin R. Sage Co. v. Foley, 12 Mass.App.Ct. 20, 22-23, 421 N.E.2d 460(1981), however sparingly that authority may be exercised.Id., at 23-25, 421 N.E.2d 460.The authority does not depend on a determination that the trial court judge, in denying relief, made incorrect rulings of law or abused his discretion.In most cases, based on the deference normally accorded determinations by the judge who heard the matter in the first instance, the single justice will decline to act on an application for relief under G.L. c. 231, § 118, first par., that does not disclose clear error of law or abuse of discretion.The authority of the single justice in acting on such an application is nonetheless plenary, with the result that his order will be reviewed on appeal in the same manner as if it were an identical order by the trial judge considering the matter in the first instance.The fact that the trial judge denied Jet-Line's application for preliminary injunctive relief is, thus, irrelevant to our review of the order of the single justice granting such relief.¹

The standards for the issuance of a preliminary injunction are set out in Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-618, 405 N.E.2d 106(1980).These are now familiar and need not be repeated here.It is also familiar law that an appellate court, reviewing such an order under G.L. c. 231, § 118, second par., does not "substitute [its] judgment for that of the [issuing]court where the records disclose reasoned support for its action."Edwin R. Sage Co. v. Foley, 12 Mass.App.Ct. at 25-26, 421 N.E.2d 460.CompareCarabetta Enterprises, Inc. v. Schena, 25 Mass.App.Ct. 389, 392, 518 N.E.2d 1163(1988).Compare, on the criminal side, Commesso v. Commonwealth, 369 Mass. 368, 374, 339 N.E.2d 917(1975).

Here, the board voted to revoke Jet-Line's oil storage permits.In the underlying action, still pending in the Superior Court, Jet-Line sought judicial review of the revocation order in accordance with the standards of Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 407 N.E.2d 363(1980).Jet-Line raised numerous issues in that action, both procedural and substantive.In particular, it contested each of the six violations found by the board of the permit conditions imposed by the board (and agreed to by Jet-Line) in 1980.It is clear on the record before the single justice and before us that the single justice, as to certain of the violations (at least), could properly conclude that Jet-Line's chances of success in its action were relatively strong.²If some but not all of the violations found by the board should be sustained, and others should be disapproved, the usual result would be invalidation of the board's decision with a remand for further consideration by the board, except where it is substantially certain that the board would revoke the permits on the basis of its findings of violations that are sustained.The reason is that, despite language authorizing the board to revoke the permits on any finding of less than full compliance, it is manifest that the board is not obligated to do so but rather retains discretion in the matter.A court can not assume that the discretion will be exercised to revoke the permits regardless of the nature or seriousness of the proved violations, still less that the hearing process is but a pretext, with a predetermined outcome.

Other issues are briefed and argued by the parties.Of particular importance is the issue of the relationship between the State-level regulatory scheme for hazardous waste storage and treatment established by G.L. cc. 21C and 21D, and the local-level regulatory scheme established by G.L. c. 148, § 13, for storage of petroleum products and certain other explosives and combustibles.See, e.g., Pereira v. New England LNG Co., 364 Mass. 109, 118-123, 301 N.E.2d 441(1973)(company which has obtained approval of Department of Public Utilities under G.L. c. 164, § 105A, for storage and transportation of gas is not further required to obtain a municipal license for the same operation under G.L. c. 148, § 13);Warren v. Hazardous Waste Facility Site Safety Council, 392 Mass. 107, 120-122, 466 N.E.2d 102(1984)(scheme for hazardous waste facility siting established by G.L. c. 21DandG.L. c. 40A, § 9, overrides certain local ordinances that would prohibit such siting).See alsoNew England Power Co. v. Selectmen of Amesbury, 389 Mass. 69, 76-78, 449 N.E.2d 648(1983).

It is not appropriate for this court, at this time, reviewing only the propriety of an order granting a preliminary injunction, to attempt to resolve these difficult and far reaching issues.The single justice did not purport to make rulings with respect to them.He was not required to, and did not, decide the case or any of its pivotal issues on the merits.So far as appears, he went no further...