Home DERBY REFINING CO., and BELCHER NEW ENGLAND, INC. vs. FRANK S. MONDANO, as he is Building Commissioner of the City of Chelsea, EDWARD P. DUNN, as he is Deputy Chief of the Fire Prevention Division of the City of Chelsea.

MISC 123002

January 15, 1988

Suffolk, ss.



The plaintiffs' second Complaint for Contempt in this action, pursuant to G.L. c. 240, §14A, against the City of Chelsea and filed October 30, 1987 alleges that the decision of the Chelsea Board of Aldermen ("the Board") to hold a hearing pursuant to G.L. c. 148, §13 to consider the suspension or revocation of the plaintiffs' license to store petroleum products at their facility located at 99 Marginal Street in Chelsea in the County of Suffolk, is a thinly veiled attempt to circumvent the preliminary injunction issued by this Court on April 15, 1987. The defendants deny any such motive arguing that the plaintiffs have failed to produce any evidence of the Board's bad faith or lack of legitimate basis for its decision. After the issuance and return of summons a preliminary hearing was held November 23, 1987 and argument heard from both parties. Upon consideration, the defendants were required to answer the second Complaint, the matter was set down for a hearing on the merits and an Order Relative to Civil Contempt thereafter issued. By this Order, in light of the allegations of the Complaint, the Board was enjoined from proceeding with the licensing hearing scheduled to be held November 24, 1987 until such time as a decision should enter on the second Complaint for Contempt.

The plaintiffs then appealed from this Order to the single justice of the Appeals Court and, after argument, an Order of that Court issued November 24, 1987 affirming the Land Court Order. Thereafter, on December 14, 1987, a hearing on the merits of the second Complaint for Contempt was held. A stenographer was appointed to record and transcribe the proceedings at which one witness was sworn and testified: Chelsea Fire Chief Herbert C. Fothergill. A videotape was also viewed of the Aldermen's meeting held October 5, 1987 at which the vote was taken to hold a hearing on the future status of the plaintiffs' petroleum storage license. Three exhibits were introduced, one of which was the relevant portion of the videotape. The defendants' case consists of the official record of the Aldermen's meeting accompanied by a request that the Court exclude evidence which would vary that record while accepting as evidence in this matter the prior testimony of their two emissions experts, Dr. Crouch and Mr. Gordon, given in the trial of the underlying zoning case, and the DEQE Notices of Non-Compliance (Trial Exhibit No. 50). The Court denied the defendants' motion as to the video tape, but did allow the admission of the testimony of the defendants' two witnesses to be considered in connection with the contempt. All exhibits so introduced are incorporated herein for the purpose of any appeal from this order.

On all the evidence presented at the hearing on the merits I find and rule as follows:

1. On April 2, 1987 the plaintiffs, Derby Refining Company and Belcher New England, Inc., commenced an action in the Land Court pursuant to G.L. c. 240, §14A for a determination as to the extent to which an amendment to the Zoning Ordinance enacted by the City of Chelsea in June of 1986 affects the land of the plaintiffs and the validity of such amendment. Specifically, the plaintiffs claim that at the time the amendment became operative their land had the benefit of a non-conforming use which entitles them to the protection afforded by G.L. c. 40A, §6 and § of the Ordinance.

2. On April 15, 1987 upon hearing and argument, a preliminary injunction was issued by this Court which provides in relevant part as follows:

ADJUDGED and ORDERED that until further order of this Court, the plaintiffs be and they hereby are, authorized to use the former Texaco facilities now owned by them in Chelsea in the County of Suffolk for the storage of petroleum products, including liquid asphalt, and related ancillary activities, such use being a continuation of the use permitted by the zoning ordinance prior to the 1986 amendment and apparently protected from the applicability thereof as a non-conforming use;

3. During the pendency of the underlying zoning litigation on October 5, 1987, the Chelsea Board of Aldermen, at a regularly scheduled meeting, voted unanimously to hold a hearing as required by G.L. c. 148, §13, to determine if the plaintiffs' license to store flammable materials should be suspended or revoked for cause. The vote was taken on a motion made by Alderman Stanley Troisi. These proceedings were videotaped for local television broadcast and the relevant portions thereof viewed at the hearing on the merits and entered into the record as Hearing Exhibit No. 2.

4. In support of his motion Alderman Troisi described the proposed license hearing as "our second avenue of attack..." He introduced this subject by stating:

Mr. Chairman, for the past number of months we have all been involved in a case at 99 Marginal Street - Belcher Oil. I know I took a certain way of attacking this problem: one was the zoning issue that's in Court at this time and the trial will be starting again in November. But the timing is now right for us to take our second avenue of attack - or our second avenue of the rights that this Board possesses under the police powers granted to us by the state and by the city charter, and that is the licensing issue.

He observed that the Board could, in this context, consider certain environmental and health-related evidence which had not been admitted at the zoning trial. He also stated that, as the local licensing authority, the Board would function as fact finders who would listen to both sides in their quasi-judicial capacity and he urged that this be done carefully. He stated further that the Board rather than "a judge from another city" would "determine the outcome" adding that they were familiar with the City and were elected public officials. [Note 1]

5. By notice dated October 30, 1987 addressed to the plaintiffs the Board announced its intention, pursuant to its Order dated October 5, 1987, to hold a public hearing on the plaintiffs' petroleum storage license for 99 Marginal Street on November 10, 1987. The notice contained the following four grounds for consideration of the suspension or revocation of that license:

a) . . . because the operation of said facility at 99 Marginal Street, including the storage of liquid asphalt poses a threat to the health and safety of the affected citizens of Chelsea;

b) . . . because the operation of said facility, including the storage of liquid asphalt, constitutes a nuisance, creates offensive odors, and adversely affects the surrounding neighborhood;

c) . . . because the licensee had made misstatements of material facts on its application and to the public during the course of its operation in calendar year 1987;

d) . . . because the licensee's operation of said facility has violated, and continues to violate air quality, and other environmental laws, designed for the protection of the health, safety and welfare of the public. [Note 2]

6. Upon request of the Court, by and through counsel, in order that the preliminary contempt hearing might proceed, the Board postponed the license hearing scheduled for November 10, 1987 to November 24, 1987. After the preliminary hearing held November 23, 1987, the Order Relative to Civil Contempt issued enjoining the Board from holding the license hearing until final action was taken on the second Complaint for Contempt. That Order was affirmed November 24, 1987 by the single justice of the Appeals Court. There has been no violation of that Order, and to date the license hearing has not been held. The Order specifically found that the holding of the hearing did not in and of itself violate the language of the injunction which was directed to zoning and building considerations but that, as stated therein, "for the Board of Aldermen to hold such a hearing prior to the final resolution of the zoning questions now before this Court may constitute contempt of Court if the hearing were designed to obtain the same results as the steps heretofore taken by the City of Chelsea in the zoning arena, i.e., the cessation of operations of the plaintiffs at their Marginal Street facility since the scheduled hearing is not predicated on the likelihood of fire or explosion resulting from the plaintiffs' operations, but may be intended to circumvent the present judicial proceedings without awaiting their termination."

The plaintiffs direct the Court to the arguments advanced by Alderman Troisi in support of his motion as evidence of a bad faith attempt by the City to accomplish by its licensing authority what it feared it would not accomplish in the zoning trial: the shut-down of the Marginal Street facility. The April fifteenth injunction claimed by the plaintiffs to be violated here, and the subsequent Order of May 29, 1987 requiring the issuanc of occupancy permits, were directed against the City's transparent efforts to close the plaitiffs' asphalt facility by means of zoning regulation. The defendants counter that the Preliminary Injunction of April 15, 1987, addressed itself to zoning matters, the primary issue of the principal case, and that the plaintiffs by this Complaint for Contempt would have the Court so expand the application of that injunction as to interfere with the City's independent licensing authority. The case law also clearly distinguishes the police powers exerciseable by local authorities in the zoning and the licensing context. Davidson v. Board of Selectmen of Duxbury, 358 Mass. 64 , 67 (1970); E.A.D. Realty Corp. v. Board of Selectmen of Shrewsbury, 6 Mass. App. Ct. 826 , 827-828 (1978). The matter at hand concerns a separate statutory authority bearing its own distinct local procedures and particular jurisdiction for appeals from local action: both of which lie without the scope of the underlying zoning action and the reach of this Court except as they are proven to constitute an unequivocal disobedience of a clear command. U.S. Time Corp. v. G.E.M. of Boston, Inc., 345 Mass. 279 , 282 ( 1963). The fact that a local licensing authority has decided to hold a revocation hearing is not, in and of itself, grounds to suspect an undermining of the Court's authority.

The defendants further argue that there is no authority for the remarks of a single member to in any way represent the intent of the Board as a whole. They rely upon Pheasant Ridge Assocs. Ltd. Partnership v. Burlington, 399 Mass. 771 , 780, n. 9 (1987) citing Moskow v. B.R.A., 349 Mass. 553 , 565-566 (1965) in which latter case it was held that campaign speeches did not constitute official action and were not made as part of the official record. As the decision in Pheasant Ridge points out, bad faith on the part of a municipal corporation may be found where official statements made on the official record lead to official acts. Id. at 779-780. In this light the plaintiffs' second Complaint for Contempt, although understandably motivated by past experience with the City's zoning actions, is premature as the anticipated official action cannot be presumed; action which has not yet occurred does not meet the requisite standard of a clear violation of an unequivocal command. Shaw v. Commonwealth, 354 Mass. 583 , 586-587 (1968) citing Nickerson v. Dowd, 342 Mass. 462 , 464 (1960).

The plaintiffs further argue that the City's motives for the licensing hearing are suspect in light of Fire Chief Fothergill's testimony that the Marginal Street facility did not, on the basis of his initial inspection two years ago, and to the best of his current knowledge, pose a fire or explosion hazard, and that there have been and are now no violations of the Fire Code. The plaintiffs contend that fire hazard is the sole valid basis for revocation or suspension of their license. The grounds on which an underground storage license can be revoked belong in a different forum and are not now properly before this Court. It should be emphasized, however, that such license is "deemed a grant attaching to the land described therein and as an incident of ownership thereof running with the land and shall not be deemed to be merely a personal privilege." Constitutional due process is required. Foster from Gloucester, Inc. v. City of Gloucester, 10 Mass. App. Ct. 284 , 290-291 (1980).

The plaintiffs also contend that the grounds for consideration of suspension or revocation of their license are merely pretextual and, as announced, so vague and irrelevant as to be legally insufficient. This argument properly belongs in the context of the licensing hearing itself as was the case in Foster from Gloucester, Inc., wherein it was pointed out that such concerns should have prompted a request for particulars from the local authority. Id. at 290.

Anticipatory resistance to a judgment may be grounds, in rare instances, for a finding of contempt. The plaintiffs refer the Court in this regard to Griffin v. County School Board of Prince Edward County, VA, 363 F.2d 206 (4th Cir. 1966) cert. den. 385 U.S. 960 (1965). In Griffin an order had issued enjoining tuition grants for 1963-1964 due to allegations of racial discrimination. The defendant school board, in anticipation of a similar "freeze" of the 1964-65 monies, met in emergency session and paid the funds out. This action is more clearly defiant of the extant order than the licensing hearing here proposed. There is a presumption that officials will act in accordance with their statutory duties. Mayor of Gloucester v. City of Gloucester, 327 Mass. 460 , 464-465 (1951) citing Brookline v. Co-Ray Realty Co., Inc., 326 Mass. 206 , 214 (1950). Although the question is close, it cannot be presumed on the record now before the Court that the Aldermen will not act in accordance with their statutory authority and subject to the provisions of law applicable thereto. See Arrigo v. Planning Board of Franklin, 12 Mass. App. Ct. 802 , 811 (1981).

While there may in fact have been contemptuous intent in the minds of at least some of the members of the Board when the vote was taken, there has been insufficient evidence presented of any act, as required by the Massachusetts case law, which constitutes a clear disobedience of an unequivocal command of Court. Manchester v. D.E.Q.E., 381 Mass. 208 , 212 (1980). I therefore find and rule that the City is not in contempt and hereby dissolve the injunction enjoining the Board of Aldermen from holding the hearing pursuant to the provisions of G.L. c. 148, §13.

Judgment accordingly.


[Note 1] Alderman Troisi and three other members of the Board lost their seats in the November 1987 city-wide election.

[Note 2] This fourth item was not contained in the Board's original Order of October 5, 1987 (Compare Hearing Exhibit Nos. 1 and 3).