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Appeals Court of Massachusetts.



Decided: February 18, 2021

By the Court (Vuono, Rubin & Sullivan, JJ.1)


The board of selectmen of Freetown (board) appeals from a judgment entered after the allowance of a motion for judgment on the pleadings. In this action for certiorari review, see G. L. c. 249, § 4, the judge concluded that the board acted arbitrarily and capriciously in denying Excel Recycling, LLC's (Excel), application for renewal of a junk dealer's license. See G. L. c. 140, § 54. On appeal, the board contends that it did not act arbitrarily because the board had before it valid complaints that militated in favor of denying the license. We agree with the judge insofar as the board improperly denied Excel's application, but we vacate the judgment and remand the matter to the Superior Court for entry of an order remanding to the board.

Discussion. The standard of review in a certiorari action “may vary according to the nature of the action for which review is sought.” Garrity v. Conservation Comm'n of Hingham, 462 Mass. 779, 792 (2012), quoting Forsyth Sch. for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217 (1989). Because the board was permitted to use its judgment in determining when and to whom to grant a license, “our task is not to determine whether the record contains substantial evidence to support the [board's] action but, rather, to decide whether the [board] exercised its discretion arbitrarily and capriciously.” Garrity, supra. See Goldie's Salvage, Inc. v. Selectmen of Walpole, 31 Mass. App. Ct. 726, 731 (1992).2 “A decision is not arbitrary and capricious unless there is no ground which reasonable [persons] might deem proper to support it” (quotation omitted). Garrity, supra, quoting Forsyth, supra.

The judge concluded that the reasons proffered by the board for denying the application were arbitrary because they were wholly unsupported, and ordered the board to issue the license. The board maintains that there were facts supporting the denial of the license, and that the judge erred by considering and weighing statements made at the second of two public meetings. Excel contends on appeal, as it did in the Superior Court, that the board acted in an arbitrary and capricious manner by considering information that was not part of the first public meeting and was not provided to Excel.

We agree with Excel that the board's reliance on matters not disclosed in the first public meeting requires a new hearing at which Excel is given a full and fair opportunity to respond to the board's concerns. The board held two public meetings. At the first one, Excel presented evidence and arguments in favor of approval of its license, and members of the community explained their opposition. Both community members and Excel were permitted to file complaints or responses regarding the license application until such time as the board made its final decision on the license. At the second public meeting, the board announced its decision; Excel and residents attended but could not participate.

It is apparent from the transcript of the second public meeting that the two voting board members 3 relied on documents and facts that were not considered or made known to Excel at the first public meeting. Board member Pacheco drove by the Excel property on several occasions and read a document at the second public meeting in which she listed dates and times that she personally observed Excel operating outside of its permitted hours of operation.4 During the first public meeting, she closely questioned Excel representatives regarding the hours of operation but did not disclose that she had conducted her own investigation. Board member Jose read the contents of a letter from a private law firm addressed to the deputy regional director of the Department of Environmental Protection (DEP) regarding the law firm's concerns about the air quality sampling methodology at the Excel facility, and a report issued by the DEP. The letter was not given to Excel, despite its requests for all matters on which the board relied, and it was not read at the first public meeting. Excel was not given an opportunity to respond.

When considering the renewal or termination of a junk dealer's license under G. L. c. 140, § 54, the licensing authority must give the licensee adequate and fair notice and an opportunity to be heard. See LaPointe v. License Bd. of Worcester, 389 Mass. 454, 458 (1983); Yerardi's Moody St. Restaurant & Lounge, Inc. v. Selectmen of Randolph, 19 Mass. App. Ct. 296, 302-303 (1985). The reliance on materials not disclosed in the first public meeting materially prejudiced Excel, as these were facts upon which the board relied to deny the license. See Yerardi's Moody St. Restaurant & Lounge, Inc., supra at 302 (“Still, looking only to practicalities, the board was well advised to allow [the license applicant] a hearing: this for the plain reason that arbitrariness or caprice is the more readily found by a court in an agency decision where the individual affected has not been given a chance to have its say”). Cf. Craft Beer Guild, LLC v. Alcoholic Beverages Control Comm'n, 481 Mass. 506, 524 (2019) (“facts that an agency relies upon in reaching its decision must be established by the record”). Accordingly, the decision of the board must be set aside, and Excel must be given a new hearing.

Excel urges us to affirm the judge's order in all respects, including his order to issue the license, without further public meetings. Excel maintains that the judge was correct when he ruled that there was no evidence supporting noise and nuisance complaints made by the neighbors, pointing to the fact that several of the complaints were investigated by the police and found to involve other tenants in the industrial park. Excel also urges us not to consider the issues raised for the first time at the second public meeting.

We decline the invitation as it misapprehends the role of the reviewing court. The first public meeting regarding the license was “not an evidentiary proceeding․ [Board] members expressed concerns over a range of topics․ These concerns were recorded in a transcript of the meeting as opinions of the members, not as factual findings. As such, it is clear that the decision of the [board], acting as the licensing authority, was a discretionary action, meriting review only for an arbitrary or capricious decision.” (Quotation omitted.) Cumberland Farms, Inc. v. City Council of Marlborough, 88 Mass. App. Ct. 528, 530 (2015).

The concerns expressed by the board members regarding Excel's hours of operation and the methodology used by the DEP may have been raised in a manner requiring a new public meeting, but the board is ultimately within its authority to consider those concerns, as well as others, on remand. Excel claims that the police reports stated that the noise did not come from the Excel facility, which was not in operation. However, one police report notes that another business operator in the industrial park heard an explosive noise that shook the ground, and there were other noise complaints for periods not covered by the police reports.

Sorting and weighing these concerns is for the board. The board's discretion is broad, and it is entitled to weigh and consider all of the issues raised at the public meetings. That said, “the discretion lodged in the local authorities is not unlimited. These agencies may not act upon mere whim or vagary. Put another way, besides the unreviewable elements in the agency decisions, there are other elements submissible to the test of elementary justice that is invoked by the words ‘arbitrary or capricious.’ ” Yerardi's Moody St. Restaurant & Lounge, Inc., 19 Mass. App. Ct. at 301. “Neither the [board's] broad discretion nor the limitations on judicial review ․ mean that the [board] can do whatever it pleases whenever it chooses to do so.” Donovan v. Woburn, 65 Mass. App. Ct. 375, 379 (2006). At this juncture, however, resolution of these licensing issues lies in further proceedings on remand, a matter as to which we express no opinion.5

The judgment is vacated, and the matter is remanded to the Superior Court for entry of an order remanding to the board.

So ordered.

Vacated and Remanded


2.   In this case, the board possessed that discretion. Town bylaws “may provide for the licensing” of junk dealers, and said licenses “may be revoked at pleasure.” G. L. c. 140, § 54. The Freetown bylaws provide that the “[s]electmen may license such persons as they deem suitable to be dealers in and keepers of shops for the purchase, sale, or barter of junk.”

3.   A third member of the board recused himself.

4.   At oral argument, the board noted that Excel was operating without a license; its 2017 license had not been renewed. Thus, there was no existing license containing hours of operation. However, all parties appear to have proceeded on the basis that the terms of the expired license should be honored. Excel stated in the first public meeting that its hours of operation were 8 a.m. to 5 p.m., consistent with the 2017 license. A copy of the 2017 license was not included in the record.

5.   We do not address Excel's argument, raised for the first time on appeal, see Scheffler v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 84 Mass. App. Ct. 904, 905 (2013), that G. L. c. 140, § 54, does not apply to its operations as a recycling facility. See La Pointe, 389 Mass. at 457.

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