Rose v. Board of Selectmen of Falmouth

• Decision Date: 07 February 1994
• Docket Number: No. 93-P-11,93-P-11
• Citation: 627 N.E.2d 478,36 Mass.App.Ct. 34
• Court: Appeals Court of Massachusetts
• Parties: Leonard ROSE & others 1 v. BOARD OF SELECTMEN OF FALMOUTH & another. 2

Page 478

627 N.E.2d 478

36 Mass.App.Ct. 34

Leonard ROSE & others ¹ v. BOARD OF SELECTMEN OF FALMOUTH & another. ²

No. 93-P-11.

Appeals Court of Massachusetts,

Barnstable.

Argued Nov. 12, 1993.

Decided Feb. 7, 1994.

Leonard Rose, Falmouth, for plaintiffs.

Edward W. Kirk, Osterville, for Denise E. Kelley.

Frank K. Duffy, Jr., Town Counsel, for Board of Selectmen of Falmouth.

Before ARMSTRONG, DREBEN and IRELAND, JJ.

DREBEN, Justice.

After the defendant Denise Kelley obtained an exclusive shellfish license over certain land in Falmouth, the plaintiffs, who had applied for such a license prior to Kelley's application, brought this action seeking declaratory relief and review in the nature of certiorari. A judge of the Superior Court, after a trial, made findings of fact and ruled, contrary to the plaintiffs' contentions, that: (1) the licensing statute, G.L. c. 130, § 57, does not require that the first qualified applicant be granted the license; (2) that the applicable renewal provision, § 58, as in effect prior to St.1986, c. 692, which allowed renewal of a shellfish license for a period not exceeding fifteen years, did not, as matter of law, preclude the selectmen from awarding the license to Kelley, the daughter of the former licensees; and (3) that the license fees authorized by statute were not unconstitutionally inadequate.

On appeal, the plaintiffs challenge each of these rulings and claim, in addition, that a provision of the Falmouth by-laws barred the award of the license to Kelley. We affirm the judgment.

In a certiorari action a court is to correct only "substantial errors of law apparent on the record adversely affecting material rights." Murray v. Second Dist. Ct. of E. Middlesex, 389 Mass. 508, 511, 451 N.E.2d 408 (1983). ³ The record of the selectmen's proceedings, that is, a transcription of the tape of the hearings or the minutes, was not presented to the Superior Court. While the plaintiffs repeatedly state that the selectmen acted without making findings, in the absence of a record of the selectmen's proceedings, we do not know, as assumed by the dissent, that the reasoning of the selectmen was not made evident to the parties. Moreover, the plaintiffs' attack is not addressed to the selectmen's failure to explain their choice among applicants, but rather the plaintiffs claim that as the first qualified applicants they are entitled to the license as matter of law. ⁴ In the absence of the inclusion by the plaintiffs of the record of the selectmen's proceedings, we consider the question discussed by the dissent as not raised in this appeal.

The plaintiffs also did not include the transcript of the trial in the Superior Court in the record on appeal. ⁵ They do not urge that the judge's findings are incorrect, and, indeed, rely heavily on his assumption that they were qualified to obtain a license.

1. First come, first served. The plaintiffs' claim is that, unless the selectmen make certain negative findings, they must award the license to the first qualified applicant. More particularly, they claim that the selectmen's concerns must be limited to three matters set forth in § 57, "namely, (a) whether there would be a substantially adverse effect on natural shellfish resources of the town, (b) whether there would be any impairment of the private rights of any person, or (c) whether there would be material obstruction of navigable waters." ⁶ The plaintiffs urge that, because the "[s]electmen arbitrarily allowed the public hearings to become hearings on the factual issue of which of the applicants should have the ... license, rather than the issue of whether any of the concerns mentioned in Chapter 130, § 57, were present," the judgment must be reversed. The public interest involved is defined by the plaintiffs in negative terms; they claim the selectmen could not legally weigh the relative qualifications among applicants, and, in the absence of findings as to the negative factors mentioned in § 57, the selectmen had no option but to award the license to the first qualified applicant.

The plaintiffs also argue that, because there are no statutory or regulatory criteria ⁷ established for the granting of a shellfish license, and because the benefits accruing from the grant are not required to be shared with the town, "the only proper way to award a new shellfish grant license [is] to issue it to the first qualified applicant."

A review of the applicable sections of G.L. c. 130 refutes the plaintiffs' argument that the selectmen are to grant the license on a first come, first served basis. The director of the division of marine fisheries is required by § 20, as inserted by St.1941, c. 598, § 1, to "assist and co-operate with coastal cities and towns for the purpose of increasing the supply of shellfish and exterminating the enemies thereof ... and for this purpose may expend such sums as may be appropriated therefor...." The funds are to be apportioned so as to "effect the greatest amount of relief and assistance to the shellfish industry." Section 20A, as inserted by St.1974, c. 571, charges the director to assist coastal cities and towns in establishing self-help "for the cultivation, propagation and protection of shellfish." Section 54 authorizes cities and towns to appropriate money for this purpose and also allows them to protect the resources by prohibiting shellfishing for limited periods.

The licensing provisions are contained in § 57 and require public notice and a hearing as described in § 60. The cities and towns are to issue licenses "upon such terms and conditions and subject to such regulations as the city council or selectmen issuing the same shall deem proper, but not so as to impair the private rights of any person...." Section 63 provides that the licensee shall have exclusive rights during the term of any license or any renewal thereof, and § 65 mandates that the licensee report annually the total number of bushels of each kind of shellfish planted, produced, or marketed during the preceding year. If the total amount falls below certain limits for any three consecutive years, the license is to be forfeited. Section 64 sets an annual fee of not less than five nor more than twenty-five dollars per acre.

The thrust of the statutory scheme is to encourage the production of shellfish and to protect an industry, which, as is apparent from the provisions, the Legislature deems requires assistance. Nothing in the statute suggests that the first person seeking a license should prevail. To the contrary, the goals of the legislation, buttressed by the requirement of public notice and a hearing, indicate that the local board is to determine which applicant, if there are several, can best achieve the town's and the State's purposes. Contrary to the plaintiffs' suggestion that the selectmen are limited, "the fact that a statute empowering a given administrative agency does not contain 'narrow and objective criteria,' but rather refers to a broad standard, tends to indicate that judicial review ... is limited to a search for 'error of law or abuse of discretion, as measured by the arbitrary or capricious test.' " Yerardi's Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass.App.Ct. 296, 300, 473 N.E.2d 1154 (1985), quoting from Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 868, 444 N.E.2d 922 (1983).

Under the "arbitrary and capricious" standard, the burden is on the plaintiff to show that the challenged action is not related to the purposes of the legislation authorizing licenses. See Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 218, 534 N.E.2d 773 (1989). There is no hint in the record before us suggesting that the selectmen's action was capricious or arbitrary in awarding the license to the adult daughter of seasoned and experienced shellfish operators. Compare Yerardi's Moody St. Restaurant & Lounge v. Selectmen of Randolph, 19 Mass.App.Ct. at 301, 473 N.E.2d 1154. In their letter of opposition to any favorable action on the application of Kelley for a license, the plaintiffs stated that their application was made on behalf of a maritime lawyer, a publisher, a teacher, and three engineers. The letter acknowledged that Kelley's stated intention was to operate the grant with her parents' help, that at the hearings before the selectmen there were concerns that the plaintiffs would not be as successful as the Kelleys had been, and that some persons opposed giving the license to the plaintiffs because they believed the plaintiffs lacked the knowledge and experience to run a shellfish operation. The record on this appeal does not indicate that any of the plaintiffs had experience in shellfish operations.

2. Denise Kelley as alter ego of her parents. At the time the selectmen awarded the license to Denise Kelley, the statute did not permit a renewal of a license for more than fifteen years. See § 58, as in effect prior to St.1986, c. 692. Denise's parents originally had a license for ten years and thereafter obtained a renewal for fifteen years. In the plaintiffs' view, Denise must be considered the alter ego of her parents as matter of law and is therefore barred from obtaining the license. ⁸ The statute imposes no such bar.

Several provisions of the statute, while not strictly applicable, show that there is no strong policy supporting the plaintiffs' contention and that the legislature now favors protecting the investment of licensees. Shortly after the grant to Denise Kelley, § 58 was changed to allow unlimited renewal terms by current licensees. See St.1986, c. 692. In addition, § 57 provides, as it did at the time the license was awarded to Denise, that upon the death of a licensee the license continues in full force and effect for the balance of the unexpired term for the use of members of the immediate family of the deceased licensee. In any event, we see no reason of policy or otherwise to...