Plaintiffs filed three separate actions seeking to compel the City of Revere to issue a building permit and to annul a decision of the City Council [Note 2] revoking plaintiffs' license for the underground storage of gasoline at plaintiffs' service station. The site was subject to Department of Environmental Quality Engineering (now Department of Environmental Protection) scrutiny for nearly eighteen months during which time the plaintiffs unwittingly failed to renew the underground storage licnse. A hearing was held by the Revere City Council, the local licensing authority in December of 1986, to revoke the license for nonrenewal and failure to pay the attendant fee. In filing Superior Court Civil Action 87-2262 on April 27, 1987, in the nature of certiorari pursuant to G.L. c.249, §4 plaintiffs sought to quash the City Council's decision claiming deprivation of property without due process of law as they had not been notified prior to the revocation. By stipulation a justice of the Superior Court remanded the matter to the City Council, a second hearing was held in the summer of 1987 and again the license was revoked on a variety of more substantive grounds. By Superior Court Civil Action 87-5293 filed September 25, 1987 plaintiffs again sought judicial relief under, G.L. c. 249, §4. In a related matter, plaintiffs were denied a building permit by the local building inspector to renovate and repair the existing structure on the gas station premises and appealed that decision to the Land Court on April 24, 1987 (Miscellaneous Case No. 123219). Initially Justice (now Chief Justice) John E. Fenton, Jr. of the Land Court was assigned by Chief Administrative Justice Arthur M. Mason to sit in the Superior Court to hear the two Superior Court matters; the designation subsequently was changed to Justice Marilyn M. Sullivan.
The principal issues for decision concern the validity of the action of the Council in revoking the license, the effect of the involvement by the Department of Environmental Management (now the Department of Environmental Protection), the entitlement of plaintiffs to a building permit and the abandonment of the nonconforming use.
A trial was held in the Land Court on October 19, 1990, at which a stenographer was sworn to record and transcribe the testimony. Thirty-four exhibits were admitted, some with multiple parts, which are incorporated herein for the purpose of any appeal. The complete applicable zoning ordinance was furnished to the Court at trial; although never formally offered as an exhibit, I mark it now as Exhibit No. 35 which is likewise incorporated in case of appeal. Three witnesses testified; plaintiffs called Vincent Savarese, II, son of Susan M. Brown and step-son of Peter Brown; Trustees of the plaintiff Trust and holder of the record title, Joseph Savarese, former husband of Susan M. Brown who has done work on the site, and David Poorvu, a limited partner in the apartment complex abutting the rear of plaintiffs' gas station. The defendants called no witnesses.
The parties entered into the following Agreed Statement of Facts (Exhibit No. 23), and based thereon I so find and rule:
1. In July 1985, 404 Revere Beach Parkway was owned by Larry Flynn and Philip Robinson, doing business as Parkway Place Auto Service. At that time, they decided to replace the existing gasoline storage tanks on the premises with new ones. Accordingly, they received a permit to remove these tanks.
2. On July 17, 1985, the Revere Fire Department ordered the removal of the old tanks to cease until the Department of Environmental Quality Engineering ("DEQE") [Note 3] could investigate for possible soil contamination. After investigation, the DEQE determined that there had been a release of gasoline.
3. Flynn and Robinson purchased new tanks and installed them, but before ever using them contracted to sell the property to Mutual Realty Trust on October 22, 1985. (See Exhibit No. 22.) [Note 4] The Purchase and Sale Agreement provided that all governmental charges had been paid and that there were no pending municipal violations.
4. On November 13, 1985, the DEQE informed Flynn and Robinson that because of the leakage of gasoline detected in July, they would have to hire an environmental engineering firm to conduct an "investigation and assessment" (Exhibit No. 1).
5. Flynn and Robinson hired Kurz Associates, Inc. to do the assessment and investigation and Kurz submitted its 50 page report on December 16, 1985 (Exhibit No. 2, appendices omitted).
6. DEQE evaluated the report, found it deficient in some respects and notified Kurz Associates of these deficiencies by telephone. It subsequently confirmed the telephone conversation by a letter dated February 6, 1986 (Exhibit No. 3).
7. Kurz responded by letter to the DEQE concerns even before the DEQE letter went out (Exhibit No. 4). The Kurz letter appeared to satisfy the DEQE and the DEQE left a further test, the sealing of floor drains, and verification of the removal of a waste oil storage tank to the future. The Trustees of Mutual Realty Trust were only told of the requirement of further testing by Flynn and Robinson, the outcome of which the trustees agreed to risk, and were otherwise satisfied that Flynn and Robinson had properly complied with the provisions in the purchase and sale agreement regarding hazardous waste discharge. They went ahead with the transaction.
8. On March 7, 1986, Mutual Realty Trust paid $208,000. for the property and received both a deed to the land and improvements (Exhibit No. 5) and a Bill of Sale for the gasoline tanks and appurtenances (Exhibit No. 6).
9. Approximately April 1, 1986, the City Clerk mailed his annual registration package to existing licensees in the city (Exhibit No. 7). This package went to the bynow former owners, Flynn & Robinson, who did not forward it to new owners, Mutual Realty Trust.
10. Shortly thereafter, in mid or late March 1986, an electrician hired by Mutual Realty Trust obtained a wiring permit for the premises. The Trust also applied for a permit to have a plumber hook up the pumps to the storage tanks. At that time, the Building Inspector, Mr. Ferragamo, refused to accept the permit, giving as his reason that no work could be done on the site until the DEQE gave its final sign-off. He posted a cease and desist order on the property.
11. In early May 1986, a representative of the Trust discussed the site with Sharon Gerolamo of the DEQE's Woburn office and was told that the present owners were expected to seal the floor drains to prevent waste oil from getting into the city sewer system and to take another test 8 to 12 months from the first test, which had been in December 1985. The Trust took care of the floor drain problem by cementing the floor (Exhibit No. 8).
12. In September. 1986, the City Clerk again sent a notice concerning the annual registration fee to Flynn & Robinson (Exhibit No. [left blank]). This, too, was not forwarded to Mutual Realty Trust by Flynn & Robinson.
13. In November, 1986, the Trust contacted Ms. Gerolamo of DEQE in preparation for doing the follow-up test to find out the name of the original testing company. At that time, in answer to a question from the Trust's representative as to whether there was anything else DEQE needed from the Trust, Ms. Gerolamo reviewed her file and noted that she needed a receipt for the waste oil storage tank. When the Trust's representative attempted to obtain this from the former owners, he found that the tank had not in fact been removed. The former owners agreed to go to the site to show the Trust's representative the tank's location.
14. On or about December 17, 1986, the environmental testing firm took new samples for submission to the DEQE (Exhibit No. 9).
15. On December 19, 1986, Mutual Realty Trust applied to the Revere Fire Department to remove a remaining waste oil storage tank. Because the contractor could not transport the tank on the same day, the permit was revoked.
16. On December 29, 1986, the City Council, after sending notice to Flynn & Robinson again, revoked the license to store gasoline on the premises for "nonexercise of the license" and/or failure to pay the annual fee. A copy of the formal vote of the Revere City Council (86-617) is attached as Exhibit No. 10 [Note 5] and a copy of the public notice in the Revere Journal for the revocation hearing is attached as Exhibit No. 11.
17. The annual license to store gasoline on the premises was last renewed in March of 1985 . . . and was never renewed thereafter. [See Exhibit No. 7.] The routine practice of the City Clerk's Office is to send renewal notices in February of each year with payment due on April 30th. Second notices are sent in September if payment not received.
18. On January 7, 1987, there was a fire at the site. The Trust promptly applied for a building permit to repair the damages, but was turned down.
19. On January 14, 1987, the Trust again applied for a permit to remove the waste oil storage tank and the tank was removed that day (Exhibit No. 12.)
20. On or about January 19, 1987 Kurz Associates sent a further report to the DEQE (Exhibit No. 13).
21. On February 6, 1987, the DEQE, after reviewing the latest analysis from the environmental testing firm, gave the Trust an acknowledgment of no further environmental hazard [Note 6] (Exhibit No. 14).
22. on February 11, 987 [sic], the Trust returned to Mr. Ferragamo for a building permit. Mr. Ferragamo still refused to issue a building permit, except for fire repairs, [Note 7] this time giving as reasons (a) the City Council's license revocation and (b) possible abandonment of a non-conforming use. (Exhibit No. 15 is the application for permit to building. Exhibit No. 16 is the Building Permit for emergency repairs only.)
23. On February 9, 1987, the plaintiffs were notified by letter that the license was revoked and that the gasoline tanks be removed (Exhibit No. 17).
24. Plaintiffs filed a Complaint in Suffolk Superior court (No. 87-2262) seeking a preliminary injunction for the rebuilding of the gasoline station and the issuance of the gasoline storage license.
25. The parties entered into a stipulation to remand the revocation hearing to the City Council.
26. A second hearing was held on June 22, 1987, (Exhibit No. 18) and on July 27, 1987, an Order was entered by the City Council revoking the license (Exhibit No. 19).
27. Attached as Exhibit No.20 [Note 8] is the zoning map of the City of Revere showing the locus [Note 9] to be in a residential district.
28. Attached as Exhibit No. 21 are the applicable ordinances of the City of Revere regarding non-conforming uses and abandonment.
29. Attached as Exhibit No. 22 is the purchase and sale agreement.
In addition to the above, I find and rule as follows:
30. "Locus" is situated at the corner of Pratt Place, a private way abutting the westerly lot line of the site, and Revere Beach Parkway (a/k/a Route 16), a six lane east/west through-way, and has an area of 9,313± square feet, with an additional 2,000 square feet derived from fee ownership of a 20' x 100' private way, presumably Pratt Place. The parcel conforms to minimum dimensional requirements for the General Residential ("RB") zoning district in which single family and two-family uses are permitted of right and the service station is prohibited. Surrounding uses include a professional office, a novelty shop, apartment buildings, and two family structures; a substantial tank farm is in the immediate vicinity.
31. Locus has been used as a service station since 1923 and enjoys the protection of the provisions of G.L. c.40A, §6 as a nonconforming use, as well as those of the Revere Zoning Ordinance. Defendants suggest that plaintiffs intend to open a convenience mart, in keeping with an apparent trend to marry the two types of operations. Photographs in evidence show apparent renovations which might accommodate such a proposal, but any proposed change not substantially more detrimental to the use as a service station is not now before the Court. Finally, plaintiffs have considered changing the full service operation to a self-service station; the impact would likely be minimal, but again it is not before me.
32. Vincent Savarese testified that in addition to providing a source of income when the family pool business experienced annual off-season slumps, the gas station would provide a location for the servicing of company and family vehicles. He later testified, however, that plaintiffs may open these services to the general public which the nonconforming nature of the station may require. In anticipation of use of the service facility the two former bay entrances were reduced to one and relocated from the front to the side of the building to avoid interference with use of the gas pumps; this area does appear from the photographs to be susceptible to such congestion and the change advisable. There also have been a few items stored in the gas station building although the extent to which this has been done is de minimis; the use has not been changed to a storage facility. [Note 10]
33. At the time plaintiffs acquired locus the DEP had investigated the site and was awaiting the secondary testing expected approximately seven months hence; until then, work unrelated to the testing and clean up was prohibited, a fact which would have affected the plaintiffs' decision to purchase if it had been known. New replacement tanks had been laid in the ground but still required plumbing connection, burying, and surfacing. A third tank required removal for which Kurz Associates was hired; clean fill was used to fill the hole left by the removal and soil tests conducted. In January, 1987 a fire damaged a portion of the structure; the building inspector refused to issue a building permit for emergency repairs until two months later and only on the recommendation of the City Solicitor. Although the City Council in their July, 1987 revocation decision attributed the cause of the fire to the storage of hazardous materials on site, no evidence was offered to the Court as to the fire's origin, and in view of the DEP presence I find and rule this conclusion was unwarranted.
34. The younger Savarese testified that at the time the Trust purchased the service station, he was aware that a license had to be renewed annually, but he assumed the procedure was similar to other kinds of licensing and that he would be notified by mail; this in fact is how plaintiffs' predecessors received notice. In addition the previous owners had assumed the responsibility for transferring the licenses by the date of closing to the new owners, but the City Clerk who sends such renewal notices, apparently was not aware of the change in ownership. [Note 11] Flynn and Robinson, the predecessors in title, were sent two notices of renewal, but they failed to forward them to plaintiffs. [Note 12]
35. Prior to July 27, 1987 the building was secured; it was boarded up, grounds had been graded, weeds and grass were occasionally cut, and a temporary fence to keep pedestrians off locus erected and often knocked down; however, the premises have not been kept in pristine order. In the past the building has been subject to numerous break-ins and vandalism, and cars have been abandoned on the locus.
36. Plaintiffs filed the first action on April 27, 1987 (87-2262) in the Superior Court and by stipulation dated May 22, 1987 [Note 13] the City Council agreed to rehear the matter as remanded. There appears as Exhibit No. 19 what purports to be the minutes from the City Council meeting. The hearing was held on June 22, 1987. Witnesses in support of the revocation appeared before the City Council. Although plaintiffs were permitted to put on their own case, cross examination of the adverse witnesses was prohibited. The City Council announced its decision at the July 27, 1987 meeting.
37. Pursuant to G.L. c. 148, §9, municipalities may adopt local ordinances governing the issuance of licenses within their corporate boundaries; however, no such ordinances were admitted in evidence nor cited by either party. The zoning ordinance which is marked Exhibit No. 35, defines "service station" as "any building or premises wherein, or upon which, gasoline or other motor fuel is sold or retained"; it also is included under the definition of "Garage, commercial". A self-service station also is defined in the ordinance. Section 17.16.290 provides "Storage tank. Tanks for the storage of flammable fluids shall be located within structures designed to store flammable fluids or located underground."
34. At that July meeting, the City Council again revoked the license citing as reasons therefore the following:
1. The City Council finds that the owners of #404 Revere Beach Parkway have failed to properly manage the licensed establishment and in so doing have allowed the open storage and exposure of oil and hazardous materials. No efforts were made to properly secure the site to prevent public access and contact with the hazardous materials stored on the site.
2. The City Council finds that the owners of #404 Revere Beach Parkway failed to maintain the property in a secured manner allowing flammable materials to be exposed to the public. The owners['] negligence in failing to properly manage the property subsequently resulted in a fire at the premises.
3. The City Council finds that the owners of #404 Revere Beach Parkway, negligently failed to properly secure the site from public access, thereby allowing contaminated materials to be exposed to the public. The City Council finds that the owners of #404 Revere Beach Parkway made no effort to contain or cover the contaminated material.
4. Based upon a review of the documents presented to the Revere City Council the Council finds that the owners of #404 Revere Beach Parkway failed repeatedly to comply with the directives of various city departments to abate dangerous and hazardous conditions at #404 Revere Beach Parkway and failed to prevent the physical deterioration of the licensed premises resulting in creation of a nuisance. Only after Court action was threatened did the owners of #404 Revere Beach Parkway make repairs. When repairs were undertaken the owners did so with [sic] securing a building permit.
5. The City Council finds that the owners of #404 Revere Beach Parkway negligently failed to notify the City Council and the Revere Fire Department of cessation of operations as is required by the Commonwealth of Massachusetts Regulations [sic - Code of Mass. Regulations], thereby allowing flammable liquid vapor buildup to occur on the site without proper management control.
6. The City Council finds that the owners of #404 Revere Beach Parkway failed to file an annual certificate of registration with the local licensing authority in accordance with the provisions of Section 13 of Chapter 148, of the Mass. General Laws.
7. The City Council finds that the owners of #404 Revere Beach Parkway negligently maintained their property in such a way as to allow the storage of hazardous and dangerous materials and have failed to maintain their property resulting in the creation of a public nuisance.
8. The City Council finds that by allowing [ ] public exposure to contaminated, "hazardous" and flammable materials and by failing to properly supervise manage and control the use of the property, the owners of #404 Revere Beach Parkway have demonstrated negligence. Further, the City Council finds that the owners of #404 revere Beach Parkway flagrantly disregarded the building laws of the City by failing to secure building permits and failed to file a certificate of registration for the operation of their business.
9. The City Council finds that the owners of #404 Revere Beach Parkway demonstrated complete disregard for their neighbors by the violation of laws relative to the operation of their premises. Based upon the specific negligent [ ] conduct of the operation of #404 Revere Beach Parkway, by the owners, as evidence and supported by various departmental communications and letters from abutters and testimony presented at the Public Hearing of June 22, 1987, the City Council finds that adequate reasons exists [sic] to revoke the license issued to #404 Revere Beach Parkway.
It was alleged at the trial that Councilman Penn was somehow interested in the outcome and so tainted the proceedings before the City Council. No evidence was offered to support this charge, but in any event, from the record of the deliberations there were a sufficient number of votes without Mr. Penn's to carry the motion to revoke.
The decision of the City Council in the earlier of the two Superior Court actions was remanded to the City Council so it is only the second of the two which now is before the Court. The governing statute is G.L. c. 148, §13 which provides:
The owner or occupant of said land licensed as herein provided, and the holder of any license for the keeping, storage . . . or sale of [gasoline, etc.], granted prior to July first, nineteen hundred and thirty-six . . . shall annually, on or before April thirtieth, file with the clerk of the city . . . where such license has been exercised . . . a certificate of registration setting forth the name and address of the holder of such license.
The matter is here on a writ of certiorari, the function of which "is not to reverse or revise findings of fact but to correct errors of law . . . where such errors appear on the face of the return and are so substantial and material that, if allowed to stand, they will result in manifest injustice to a petitioner who is without any other available remedy." Tracht v. County Commissioners of Worcester, 318 Mass. 681 , 686 (1945). I now dismiss Suffolk Superior Court Civil Action No. 87-2262 as it is now moot and in Suffolk Superior Court Civil Action No. 87-5293 I determine that the Council's decision and order should be quashed. It follows that in Land Court Case No. 123219 Miscellaneous the decision of the building inspector is reversed with the plaintiff entitled to the issuance of a building permit upon the presentation of plans in accordance with the State Building Code and the Revere Zoning Ordinance.
There no longer can be any doubt that a license for the underground storage of gasoline now is a vested property right of the licensee and may be revoked only when due process protections are complied with. Derby v. Board of Aldermen of Chelsea, 407 Mass. 718 , 722 (1990). Accordingly the grounds upon which such a license can be revoked, as Justice Greaney has decided in Derby, are limited to those set forth in the enabling statute. Derby established that such grounds do not include environmental concerns. The decision of the Revere City Council reached before Derby was decided by the Supreme Judicial Court relied heavily on the presence of dangerous substances which the plaintiffs were in the process of eliminating under the supervision of the Department of Environmental Protection. Now that the DEP has signed off, the City lacks authority on environmental grounds to revoke the license.
It is true that the decision also refers to failure to repair but ignores the unjustified refusal of the building inspector to issue the necessary permit. Finally the Council referred to hazardous substances as the source of the fire. If this were so, the revocation would have met the statutory mandate, but there was no evidence that this was the case. Failure to allow cross examination violates the concept of fundamental fairness required by due process, and it might have enlightened the members of the Council as to the true source of the problem. Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass. App. Ct. 284 , 292 (1980).
The Council's decision does not allude to nonpayment of funds, but it does refer to failure to file an application for the annual certificate of registration. Ordinarily this would be sufficient grounds for revocation. Chase v. Board of Selectmen of Littleton, 2 Mass. App. Ct. 159 , 160 (1974). Fallon v. Street Commissioners of Boston, 309 Mass. 244 (1941). Here, however, there are several extenuating circumstances. Plaintiffs were new owners unfamiliar with industry practices and relying on supposed assurances from their sellers. Title was taken just prior to the date of annual registration, and the history of the annual registration dating back to 1923 shows a pattern of leniency toward strict compliance.
There has been much argument between the parties, and each briefed the issue of whether the use had been abandoned and so was no longer a lawfully preexisting nonconforming use. The inquiry is two pronged, as the period sufficient for abandonment is different for zoning than it is for a storage license under c. 148 and its companion regulations under the Code of Massachusetts Regulations. I find and rule that the efforts expended by the plaintiffs to comply with the mandates of DEP are clear evidence that the plaintiffs did not intend to abandon their nonconforming use.
Generally, to constitute an abandonment of the property there must be an intent to abandon the use and "conduct which carries the implication of abandonment"; mere nonuse is not enough. Pioneer Insulation & Modernizing Corp. v. Lynn, 331 Mass. 560 , 565 (1954). Cities Services Oil Co. v. Board of Appeals of Bedford, 338 Mass. 719 , 724 (1959). Derby Refining Co. v. City of Chelsea, 407 Mass. 703 , 708 (1990). The defendants argue that because the service station has not been operating as such since 1985, the use has been abandoned. Such an argument fails to recognize that during the pendency of a nearly eighteen month long DEP review the use was suspended, and during this time the owners maintained sufficient presence on the site to establish that they neither intended to abandon nor displayed "conduct" from which abandonment might be implied. See generally Derby Refining Co. v. City of Chelsea, supra. In the summer of 1985 the Revere Fire Department halted all work at the site, and the period of nonuse was stayed by §6 during the pendency of the various appeals which were filed in the spring of 1987, not quite two years later. In any event the use remained lawfully nonconforming in the eyes of the Zoning Act. That the use in fact was dependent upon a separate storage license does not enter into the inquiry.
As to whether the use was abandoned for puposes of licensure under c. 148, a facility must be "out of service for a continuous period in excess of six months. . . ." 527 CMR §9.02 (1); "out of service" being defined thereunder as "not in use in that no filling or withdrawing is occurring". There is no question the use was "out of service"; nonetheless, the term "abandoned" may be interpreted similarly in both the zoning and licensing contexts. Justice Greaney in Derby Refining found the maintenance of the flammable storage license even though the site had been "moth balled" highly persuasive in finding the use had not been abandoned. Although in the instant case the license lapsed due, in part, to plaintiffs' inadvertence, plaintiffs diligently pursued the resolution of DEP's review and the restoration of the underground storage license, and so like Texaco in Derby Refining evidenced an intent to maintain the uses integrity.
[Note 1] No answer filed.
[Note 2] The City Council is the local licensing authority pursuant to G.L. c.148, §1, empowered thereunder to grant or revoke for cause licenses for the underground storage of inflammable material which are required of all gasoline service stations.
[Note 3] Now the Department of Environmental Protection ("DEP")
[Note 4] All references to exhibit numbers relate to exhibits admitted at trial.
[Note 5] By agreement of the parties the Exhibits referred to in the Agreed Statement as being attached are not so attached but were marked in the trial as exhibits bearing the same numbes.
[Note 6] The DEP did advise that tanks left unused for a certain period of time (as dictated by the Code of Massachusetts Regulations Title 527, §9.00), would be deemed abandoned and must be removed.
[Note 7] The building permit was not granted until March and only after the City Solicitor advised the issuance.
[Note 8] See n. 3 and n. 4, supra
[Note 9] That is, 404 Revere Beach Parkway.
[Note 10] Note: mail was seen by Mr. Poorvu on a shelf in the station building which he says bore the address for "Doctor Pool" at 404 Revere Beach Parkway, which was denied by the plaintiffs. I find this immaterial for purposes of this decision.
[Note 11] Note, however, that tax bills had been sent to the Trust at Mrs. Brown's address, although still addressed to Messrs. Flynn and Robinson.
[Note 12] Exhibit No. 7 contains a photocopy of a return receipt indicating receipt of the September notice at 404 Revere Beach Parkway. The receipt was signed September 25, 1986 by one Frank Belmont, although no evidence was presented as to his identity nor his authority to sign.
[Note 13] The stipulation was not put in evidence but was approved May 22, 1987 by Associate Superior Court Justice Abrams in Case No. 87-2262 and was attached to plaintiff's post-trial brief. Moreover, the stipulation states that the rehearing will be conducted on the grounds of failure to exercise the license and/or pay the annual fee.