LEONARD ROSE & others [Note 1] vs. BOARD OF SELECTMEN OF FALMOUTH & another. [Note 2]

DREBEN, J. 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, Section 57, does not require that the first qualified applicant be granted the license; (2) that the applicable renewal provision, Section 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 bylaws 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 (1983). [Note 3] The record of the selectmen's

Page 36

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. [Note 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.

Page 37

The plaintiffs also did not include the transcript of the trial in the Superior Court in the record on appeal. [Note 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 Section 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." [Note 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, Section 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 Section 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 [Note 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

Page 38

license on a first come, first served basis. The director of the division of marine fisheries is required by Section 20, as inserted by St. 1941, c. 598, Section 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 Section 57 and require public notice and a hearing as described in Section 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 Section 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

Page 39

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 (1985), quoting from Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 868 (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 (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. 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 Section 58, as in effect prior to St. 1986, c. 692. Denise's parents originally had a license for ten years and

Page 40

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. [Note 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, Section 58 was changed to allow unlimited renewal terms by current licensees. See St. 1986, c. 692. In addition, Section 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 create a judicial gloss upon the statute that would, as matter of law, bar a child from applying for a license previously held by her parents.

3. Challenge to fee. The low statutory fees are consistent with the statute's purpose to encourage greater production of shellfish. Assuming that the plaintiffs have standing to raise the issue of fees, there is here no constitutional infirmity.

4. Town by-law. The plaintiffs claim that a 1922 by-law of the town precludes the selectmen from granting a license for more than five years or for an area in excess of two acres. Town counsel takes the position that, although the by-law was proposed, it was never adopted and that the compilation of town by-laws containing the provision is in error.

Recognizing that arguments not made before the trial court need not be considered on appeal, the plaintiffs claim they were unaware of the by-law because the by-law compilation was prepared by the town after the trial. Nothing explains why the plaintiffs failed to examine town records or to ask this court for leave to file a motion for a new trial in the

Page 41

trial court. In any event, the by-law was not before the trial judge, and we cannot take judicial notice of by-laws. Perini Corp. v. Building Inspector of N. Andover, 7 Mass. App. Ct. 72, 78 n.9 (1979).

Accordingly, we see no abuse of discretion in the judge's denial of relief in the nature of certiorari. Judgment affirmed.

APPENDIX TO THE OPINION OF THE COURT.

Section 57, as amended through St. 1985, c. 339, provides as follows.

"The city council of a city or the selectmen of any town may, upon written application therefor and after public notice and hearing thereon as provided in section sixty, grant to any person a license for a period not exceeding ten years to plant, grow, and take shellfish and to plant cultch for the purpose of catching shellfish seed, in such city or town at all times of the year, in, upon or from a specific portion of flats or land under coastal waters, provided the division of marine fisheries shall, after inspection, certify that the license and operation thereunder would cause no substantial adverse effect on the natural shellfish resources of the town, and provided further, no license shall be issued for any area then or within two years prior thereto, closed for municipal cultivation under the provisions of section fifty-four. Licenses under this section shall be issued upon forms supplied by such cities and towns and 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 or to materially obstruct navigable waters, and they shall describe by metes and bounds the waters, flats or creeks covered thereby.

"Any license issued under the provisions of this section shall, upon the death of the licensee, continue in full force and effect, subject to the same terms, conditions, and regulations imposed upon the original license, for the balance of the unexpired term, or one year whichever is longer, for the use of the members of the immediate family of the deceased licensee. For the purposes of this section, immediate family shall mean the spouse, son, daughter, mother, father, brother and sister of said deceased licensee.

"Nothing in this section shall be deemed to affect the validity, conditions, or terms of any license granted under corresponding provisions of earlier laws and in full force upon the effective date of this section." Section 60, as inserted by St. 1941, c. 598, Section 1, provides as follows.

"No license referred to in section fifty-seven shall be granted, transferred or renewed until after a public hearing, due notice of which has been posted in three or more public places, and published in a newspaper,

Page 42

if any, published in the city or town where the territory described in the application is situated at least ten days before the time fixed for the hearing, stating the name and residence of the applicant or transferee, as the case may be, the date of the filing of the application for such license, transfer or renewal, and the location, area and description of said territory."

IRELAND, J. (dissenting). The plaintiffs point, albeit inartfully, to the failure of the selectmen to explain their decision as an integral part of their contention that the actions of the selectmen were arbitrary and capricious. Relief in the nature of certiorari will be granted, in the court's discretion, where "substantial errors of law apparent on the record adversely affecting material rights . . . which have resulted in manifest injustice to the plaintiff. . . ." Murray v. Second Dist. Ct. of E. Middlesex, 389 Mass. 508, 511 (1983) (citations omitted). This is such a case. See Yerardi's Moody Street Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. 296, 300 (1985). Contrast Chick's Constr. Co. v. Wachusett Regional High Sch. Dist. Sch. Comm., 343 Mass. 38, 41 (1961) (writ will not issue on formal or technical errors).

Conceding the obvious, that the plaintiffs did not possess a property interest in the shellfishing license enabling invocation of the due process clause of the Fourteenth Amendment to the United States Constitution, see Roslindale Motor Sales, Inc. v. Police Commr. of Boston, 405 Mass. 79, 82-83 (1989), I nonetheless would hold that principles of fundamental fairness dictate that a contemporaneous statement of reasons issue from a board of selectmen to support or explain a denial of a license application. Absent this, complaining parties are effectively denied redress by any meaningful judicial review. This entitlement is securely grounded both in this Commonwealth's common law and in the licensing statute at issue.

"In this Commonwealth the right to a hearing where government exerts power upon an individual in a matter of consequence has been related, on occasion, not strictly to the

Page 43

Constitution, but to an ethic that pervades our legal system . . . [and], where the board denies relief to the individual, it would do well to state its reasons at or near the time of the decision. This aids the board in reaching a correct result, besides helping the court in the process of review, if that should occur." Yerardi's Moody Street Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. at 303-304 (citations omitted). Thus, concluding that a statement of reasons "permits the applicant to make a meaningful and focused appeal," the Supreme Judicial Court has required a statement of reason or reasons in the case of refusal to renew a license. Roslindale Motor Sales, Inc. v. Police Commr. of Boston, 405 Mass. at 84. In my view, the right of any party to meaningful judicial review is no less important for an original applicant for a license. "As matters now stand, the correctness of the [board's] decision is essentially unreviewable. Thus, it is impossible to determine from the present record whether that decision was based on [factors] which were arbitrary, unreasonable or capricious or whether the decision was reached after due consideration of the relevant factual issues." Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284, 295 (1980) (citations omitted).

In addition, the legislature requires that applicants for a shellfish license be afforded a certain process -- public notice and hearing. G. L. c. 130, Section 57. I read this mandate as a legislative prescription that a board considering such a license provide due process in the nature of that which would be warranted if constitutional due process rights were to attach. See, e.g., Konstantopoulos v. Whately, 384 Mass. 123, 131 (1981) (where a statute provides for a hearing, it is fair to imply "that the licensee is to be notified, and to have opportunity to be heard"); Chongris v. Board of Appeals of Andover, 811 F.2d 36, 40-41 (1st Cir. 1987) (constitutionally sufficient State procedures should include "availability of meaningful judicial review"). Concluding that a statement of reasons for a denial is not required, I believe, renders the selectmen's decision effectively immune from judicial review

Page 44

and, thus, the statutory requirement of notice and a hearing objectively meaningless.

I would reverse and remand this case to the Superior Court for return to the selectmen for a statement of reasons in support of the denial. See Roslindale Motor Sales, Inc. v. Police Commr. of Boston, 405 Mass. at 85.