Cumberland Farms, Inc. v. City Council of Marlborough (Lawyers Weekly No. 11-162-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-1612                                       Appeals Court   CUMBERLAND FARMS, INC.  vs.  CITY COUNCIL OF MARLBOROUGH. No. 14-P-1612. Middlesex.     May 11, 2015. – October 15, 2015.   Present:  Cypher, Meade, & Massing, JJ. Practice, Civil, Relief in the nature of certiorari.  License. Municipal Corporations, City council.  Administrative Law, Judicial review.     Civil action commenced in the Superior Court Department on November 12, 2013.   The case was heard by Douglas H. Wilkins, J., on a motion for judgment on the pleadings.     Carey H. Smith for the plaintiff. Cynthia M. Panagore Griffin for the defendant.     CYPHER, J.  Cumberland Farms, Inc. (Cumberland Farms), appeals from a judgment of the Superior Court upholding the denial by the city council of Marlborough (council) of Cumberland Farms’s application for a G. L. c. 148, § 13, fuel storage license.  Cumberland Farms argues that the judge applied an incorrect standard of review and that he based his decision on improper factors. Background.  Pursuing a plan for a gasoline station and a convenience store in the city of Marlborough, Cumberland Farms filed with the council applications for a special permit, see G. L. c. 40A, § 9, and for a fuel storage license, see G. L. c. 148, § 13.  Two meetings of the council’s urban affairs committee were held between June, 2012, and March, 2013, on the special permit application; because the council did not consider the final conditions to the special permit, it issued by constructive grant on March 28, 2013.  The urban affairs committee then discussed the fuel storage license application on May 21, 2013, and June 19, 2013, but failed to take action at the latter meeting.  On August 2, 2013, Cumberland Farms filed a complaint in the Superior Court seeking injunctive relief to require the council to take action.  Before the complaint was considered in that court, the council voted on September 23, 2013, to deny the application for a fuel storage license, without providing any findings or an explanation of its reasoning. On November 12, 2013, Cumberland Farms filed in Superior Court the within action in the nature of certiorari, see G. L. c. 249, § 4, seeking judicial review of the council’s decision.  Following a hearing on Cumberland Farms’s motion for judgment on the pleadings, a judge denied Cumberland Farms’s motion and affirmed the council’s decision.  Judgment entered, and this appeal followed. Discussion.  Cumberland Farms requests that the judgment be reversed, […]

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