GOLDIE'S SALVAGE, INC. vs. BOARD OF SELECTMEN OF WALPOLE & another. [Note 1]

GILLERMAN, J. The selectmen of Walpole, acting as the licensing authority of the town, voted on May 30, 1989, to deny the application for renewal of four licenses previously held by the plaintiff (Goldie's): a junk dealer's license and a junk collector's license, both issued under G. L. c. 140, Section 54; a class 2 used car dealer's license and a class 3 motor vehicle junk license, both issued under G. L. c. 140, Section 59. [Note 2]

Goldie's complaint in the Superior Court, filed on June 6, 1989, sought injunctive relief and judicial review of the proceedings before the selectmen, citing G. L. c. 249, Section 4 (relief in the nature of certiorari), and G. L. c. 140, Section 59 (granting judicial review to any person aggrieved by a decision of a licensing board refusing to grant a license under Section 59). [Note 3] After a hearing, the application for a preliminary injunction was denied, and the judge ordered a hearing, which he set down for July 13, 1989, on a proposed, but unfiled, motion for summary judgment in favor of the defendants.

On June 29, 1989, the selectmen filed a motion for summary judgment supported by the affidavit of the keeper of the records of the selectmen. The affidavit incorporated (i) a copy of a letter dated January 18, 1989, notifying Goldie's of a hearing on February 7, 1989, on its application for the renewal

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of its class 2 and class 3 licenses; (ii) the minutes of the meeting of the selectmen dated February 7, 1989 (reciting that "this meeting was [called] because of the concerns of the Conservation Commission, the Board of Appeals and the Fire Chief," but that no conclusions were reached and no vote was taken); (iii) the minutes of the meeting of the selectmen dated March 14, 1989 (reciting that the selectmen voted to hold a hearing on Goldie's class 2 and class 3 license applications); (iv) a copy of a letter dated April 13, 1989, notifying Goldie's that there would be a hearing on the class 2 and class 3 license applications on May 9, 1989, that the selectmen intended to consider seven issues, which the letter identified, and that Goldie's might be represented by counsel and might present and cross-examine witnesses; and (v) a copy of a letter dated June 1, 1989, in which the selectmen notified Goldie's that the board, following the hearing held May 9, 1989, had voted to deny Goldie's applications for the renewal of its Section 59 class 2 and class 3 licenses as well as Goldie's applications, filed one day after the May 9 hearing, for the renewal of its Section 54 junk dealer and junk collector licenses. The selectmen cited six reasons as the basis of their decision, which we set out in the margin, [Note 4] and added that Goldie's place of business was not suitable for its continued use as a class 2 and class 3 licensed establishment. Although the transcript of the hearing held on May 9 was not attached to the motion for summary judgment or to the accompanying affidavit, it was in fact before the judge without objection

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from Goldie's, and he considered the transcript in reaching his decision.

On July 12, 1989, one day before the hearing on the selectmen's motion for summary judgment, Goldie's counsel filed an affidavit under Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), seeking the opportunity to obtain answers to interrogatories, responses to document requests, and deposition testimony of various persons on the basis of which counsel, according to his affidavit, expected to be able to establish that certain testimony at the May 9 hearing, and the six reasons assigned by the town, were not accurate and that there were genuine issues of material fact which needed to be tried. The judge, in allowing summary judgment and denying Goldie's the requested continuance, cited the absence of any vested right to the renewal of the licenses, the broad discretion of the town in denying licenses, the adequacy of the reasons set forth by the town, and the absence of any arbitrary or capricious act.

1. Statutory background. The statute governing junk collector and junk dealer licenses, G. L. c. 140, Section 54, differs markedly from G. L. c. 140, Section 58, governing class 2 and 3 licenses for dealing in used automobiles and their parts. Section 54 authorizes cities and towns to adopt an ordinance or by-law which "may provide for the licensing . . . by the selectmen . . . of suitable persons to be collectors of, [or] dealers in . . . junk," and the selectmen may make such additional regulations and restrictions as "shall be expressed in all licenses." The license may be "revoked at pleasure," and, in any event, expires on May first of each year. See G. L. c. 140, Section 202. There is no provision in Section 54 for any hearing on an application for a Section 54 license, and there is no provision for any judicial review of action taken by the licensing authority with respect to a Section 54 license. Article XVI of the Walpole by-laws provides that the selectmen "may license suitable persons" as junk dealers and junk collectors. The by-law, like Section 54, contains no provision for any hearing or for judicial review.

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Section 59, on the other hand, provides that the licensing authorities of cities and towns, in their discretion, "may grant" [Note 5] a license to a "proper person" to engage in the motor vehicle business (class 1, class 2, or class 3) if (i) that business is to be his or her principal business and (ii) the applicant has a "place of business suitable for the purpose." All such licenses expire on January first of each year. Section 59 also contains a provision for a hearing, prior to the issuance of a class 3 license only (motor vehicle junk license), with notice of the hearing to abutters. [Note 6] There is also a provision for judicial review: an appeal may by taken by any person aggrieved by any action taken by the licensing board under Section 59 to a judge of the superior court who, after due notice, shall "give a summary hearing on such appeal, and shall have jurisdiction in equity to review all questions of fact or law . . . and may make any appropriate decree." Even though the selectmen were only required by statute to hold a hearing with respect to Goldie's class 3 license application, [Note 7] it is clear that the selectmen, without objection from Goldie's (on the possible ground that the Section 54 license

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applications were filed one day after the hearing), either at the hearing or in its brief to this court, conducted the hearing as bearing on all four applications, [Note 8] and they relied on the evidence produced at the May 9 hearing as the basis for their decision in respect to all four applications.

2. Standard of judicial review. The appropriate standard of review of the denial of the Section 54 licenses -- a certiorari case -- "must be determined according to `the nature of the action sought to be reviewed.'" Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 877 (1983), quoting from Boston Edison Co. v. Boston Redev. Authy., 374 Mass. 37, 49 (1977). Section 54 and the town's by-law permit the exercise of broad discretion by the selectmen, rather than specifying "narrow and objective criteria" for the issuance of a license, in consequence of which the standard of review applicable to the two Section 54 applications is "error of law or abuse of discretion, as measured by the `arbitrary or capricious' test." Caswell, supra, at 878, and Yerardi's, supra at 300 n.7. Under this standard of review, where, as here, a hearing has been provided, the record to be reviewed is the entire record of the hearing before the selectmen, including the reasons for their decision. We must determine whether the Superior Court correctly decided that the record of the proceedings before the selectmen showed no error of law or abuse of discretion. See Carney v. Springfield, 403 Mass. 604, 605 (1988).

The standard of review provided by Section 59, in a case where a hearing has been provided, see note 7, supra, is a different matter; it is not altogether clear what the Legislature had in mind by providing for a "summary hearing" together with "jurisdiction in equity to review all questions of fact or law." [Note 9]

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No reported decision appears to have considered the question presented here. [Note 10] The provisions for judicial review under Section 59 are broader than those under Section 54, where there is no specific provision for judicial review. The provisions in Section 59 requiring a "summary hearing" and a "review [of] all questions of fact or law," when read in the context of an "appeal" from a decision of the licensing authority in "refusing to grant, or revoking a license for any cause," imply strongly that only the record before the licensing authority, including the reasons for its decision, must be reviewed, both as to the facts and the law. We conclude, then, that Goldie's is entitled to a review of the transcript of the hearing on May 9, 1989, as well as the decision of the selectmen. The standard in the Superior Court is whether the decision of the selectmen is based upon an error of law or is unsupported by substantial evidence. Compare G. L. c. 30A, Section 14(7)(c) and (e). Our review is to determine whether the Superior Court correctly made those determinations. Compare Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 903 (1979).

3. Conclusions. The record appendix includes only excerpts from the transcript of the hearing before the selectmen, and we shall assume, therefore, that the parties agree that those excerpts contain all the testimony material to our decision.

The decision of the selectmen recites six reasons for the denial of the four license applications. See note 4, supra. We need not review either the correctness or the adequacy of all six reasons, for one of the assigned reasons is sufficient to justify the decision of the selectmen. We refer to the finding that Goldie's was in violation of G. L. c. 140, Sections 54A and 59A, as inserted by St. 1967, c. 600, Sections 2 and 3. Those two sections contain provisions requiring the licensee's place of business to be "screened from view either by natural objects or well-constructed and properly maintained fences at least six feet. . . ." Absent compliance with these provisions, no

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licenses may be granted under Section 54 (by virtue of Section 54A) or under Section 59 (by virtue of Section 59A).

We have reviewed the transcript included in the record before us, having in mind that the "evidentiary niceties found in the courtroom" need not be observed at a hearing before selectmen. See Yerardi's Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. 296, 303-305 (1985). There was undisputed testimony by the building inspector of Walpole that a 110 foot natural barrier of trees -- a "buffer barrier for the property," according to the inspector -- had been "destroyed by taking down of trees." This destruction of the screening of Goldie's property "by natural objects" is evidence sufficiently substantiated to support the conclusion of the selectmen that the issuance of the Section 54 licenses was prohibited by G. L. c. 140, Section 54A, and the issuance of the Section 59 licenses was prohibited by G. L. c. 140, Section 59A. It follows that there was no error of law or abuse of discretion with regard to the refusal to issue the Section 54 licenses, and the decision to refuse to issue the Section 59 licenses was supported by substantial evidence untainted by any error of law. [Note 11]

Finally, given the limited review provided by G. L. c. 249, Section 4, and by Section 59, there is no merit to Goldie's claim that it

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should be permitted the opportunity to obtain discovery and introduce evidence extrinsic to the record. [Note 12]

Judgment affirmed.