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14-P-1612                                            Appeals Court

   CUMBERLAND FARMS, INC.     vs.   CITY COUNCIL OF MARLBOROUGH.


                           No. 14-P-1612.

        Middlesex.       May 11, 2015. - October 15, 2015.

            Present:    Cypher, Meade, & Massing, JJ.


Practice, Civil, Relief in the nature of certiorari. License.
     Municipal Corporations, City council. Administrative Law,
     Judicial review.



     Civil action commenced in the Superior Court Department on
November 12, 2013.

     The case was heard by Douglas H. Wilkins, J., on a motion
for judgment on the pleadings.


    Carey H. Smith for the plaintiff.
    Cynthia M. Panagore Griffin for the defendant.


    CYPHER, J.     Cumberland Farms, Inc. (Cumberland Farms),

appeals from a judgment of the Superior Court upholding the

denial by the city council of Marlborough (council) of

Cumberland Farms's application for a G. L. c. 148, § 13, fuel

storage license.   Cumberland Farms argues that the judge applied
                                                                   2


an incorrect standard of review and that he based his decision

on improper factors.

    Background.    Pursuing a plan for a gasoline station and a

convenience store in the city of Marlborough, Cumberland Farms

filed with the council applications for a special permit, see

G. L. c. 40A, § 9, and for a fuel storage license, see G. L.

c. 148, § 13.   Two meetings of the council's urban affairs

committee were held between June, 2012, and March, 2013, on the

special permit application; because the council did not consider

the final conditions to the special permit, it issued by

constructive grant on March 28, 2013.     The urban affairs

committee then discussed the fuel storage license application on

May 21, 2013, and June 19, 2013, but failed to take action at

the latter meeting.    On August 2, 2013, Cumberland Farms filed a

complaint in the Superior Court seeking injunctive relief to

require the council to take action.     Before the complaint was

considered in that court, the council voted on September 23,

2013, to deny the application for a fuel storage license,

without providing any findings or an explanation of its

reasoning.

    On November 12, 2013, Cumberland Farms filed in Superior

Court the within action in the nature of certiorari, see G. L.

c. 249, § 4, seeking judicial review of the council's decision.

Following a hearing on Cumberland Farms's motion for judgment on
                                                                     3


the pleadings, a judge denied Cumberland Farms's motion and

affirmed the council's decision.    Judgment entered, and this

appeal followed.

    Discussion.     Cumberland Farms requests that the judgment be

reversed, arguing that the judge erroneously applied the

arbitrary and capricious standard of review to the council's

denial and that his decision is based on anecdotal evidence and

conjecture.

    "General Laws c. 148, § 13, . . . does not provide a right

of appeal to any court; in the absence of a provision for

judicial review of [a licensing authority's] decision, G. L.

c. 249, § 4, provides that an aggrieved person may seek relief

in a civil action in the nature of certiorari. . . .    We

reaffirm that a civil action in the nature of certiorari is the

sole relief available to a party aggrieved by a discretionary

decision of a local licensing authority."    Bermant v. Selectmen

of Belchertown, 425 Mass. 400, 403-404 (1997) (footnote

omitted).   Compare Johnson Prods., Inc. v. City Council of

Medford, 353 Mass. 540, 545, cert. denied, 392 U.S. 296 (1968).

As such, Cumberland Farms properly sought relief through an

action in the nature of certiorari.

    Under G. L. c. 249, § 4, the standard of review "may vary

according to the nature of the action for which review is

sought."    Forsyth Sch. for Dental Hygienists v. Board of
                                                                    4


Registration in Dentistry, 404 Mass. 211, 217 (1989).   For

example, in Saxon Coffee Shop, Inc. v. Boston Lic. Bd., 380

Mass. 919, 924-925 (1980), the substantial evidence standard of

review applied where a revocation proceeding was required by

statute and was adjudicatory in nature.   See Receiver of the

Boston Hous. Authy. v. Commissioner of Labor & Indus., 396 Mass.

50, 59 (1985).   But in Forsyth Sch. for Dental Hygienists, supra

at 217-218, the arbitrary and capricious standard of review

applied because the board was free to use its judgment and to

exercise administrative discretion.

    Here, the judge properly found that the council's

proceedings were not adjudicatory in nature.   He correctly noted

that G. L. c. 148, § 13, does not "provide narrow and objective

criteria for the Council to apply in evaluating applications."

Contrast Caswell v. Licensing Commn. for Brockton, 387 Mass.

864, 878 (1983).   The meeting at which the council voted to deny

the application was not an evidentiary proceeding.   The judge

stated that council "members expressed concerns over a range of

topics including leaks and accidents affecting the nearby

reservoir, compensation for affected neighbors, hours of

operation, lighting, noise and odors, sidewalks on Walker

Street, traffic, use of the station by large diesel trucks,

opposition from residents, and competition with existing

businesses."   These concerns were recorded in a transcript of
                                                                     5


the meeting as opinions of the members, not as factual findings.

As such, it is clear that the decision of the council, acting as

the licensing authority, was a discretionary action, meriting

review only for an arbitrary or capricious decision.     See E.A.D.

Realty Corp. v. Selectmen of Shrewsbury, 6 Mass. App. Ct. 826,

828 (1978).

     The arbitrary and capricious standard of review "requires

only that there be a rational basis for the decision."     Howe v.

Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534

(1985).   Furthermore, in exercising its wide discretion to issue

or withhold licenses, a licensing authority may take into

account other factors affecting public interests and welfare.

See Scudder v. Selectmen of Sandwich, 309 Mass. 373, 376 (1941);

Kidder v. City Council of Brockton, 329 Mass. 288, 290 (1952).

"There is no longer any room for doubt that factors [such as

noise, traffic, and adjacent residential areas] may properly

form the basis of . . . a city council's decision to deny an

application under [G. L. c. 148,] § 13."   E.A.D. Realty Corp., 6

Mass. App. Ct. at 827.   See Hood Indus., Inc. v. City Council of

Leominster, 23 Mass. App. Ct. 646, 650 (1987).   "Within the area

of discretion the power lies in the licensing authority and not

in the court."   Scudder, supra.1


     1
       The judge, sua sponte, wondered whether "[o]ne might also
question a decision [under G. L. c. 148, § 13,] that amounts to
                                                                         6


    In very similar circumstances, the court in Kidder, 329

Mass. at 290-291, stated:

    "The council may have reasoned that another station would
    tend to increase traffic at an already burdened
    intersection; that [vehicles entering and exiting the
    station] would further interfere with the free flow of
    traffic; that the risk of accidents to children and others
    would be increased; that there would be additional noise
    and odors; and that there was no counterbalancing public
    demand for another station in this immediate vicinity.
    These were considerations for the council to weigh . . . .
    They are not matters for the court to pass upon."

    While the council here had no burden to "justify the denial

of a license" and had no "duty to state reasons for the denial,"

Johnson Prods., Inc., 353 Mass. at 543, the judge carefully

examined these concerns, as discussed, supra.     We conclude that

the judge correctly determined that there was a rational basis

for the council to exercise its discretion and that the

council's decision was not arbitrary or capricious.        No error of

law or abuse of discretion appears.

                                      Judgment affirmed.




regulation of a permitted land use without the protection of the
procedures, uniformity requirements, and de novo review provided
by G. L. c. 40A, §§ 4, 17." This question was not raised in the
present case. Neither party has based any argument on the
constructive grant of the special permit, and in any event "[w]e
perceive nothing in G. L. c. 148, § 13, as amended, or in
c. 40A, which indicates to us that a decision . . . in a zoning
matter is binding on the local licensing authority." Davidson
v. Selectmen of Duxbury, 358 Mass. 64, 67-68 (1970).
