G6 Hospitality Property LLC v. Town of Braintree Board of Health (Lawyers Weekly No. 12-107-17)



NORFOLK, ss.                                                                      SUPERIOR COURT

                                                                                                CIVIL ACTION

  1. 17-0882











In its complaint in this action, Plaintiff G6 Hospitality Property LLC (“G6”), which operates a Motel 6 located at 125 Union Street, Braintree, Massachusetts (“the Motel”), seeks certiorari review under G.L. c. 249, § 4 of a decision made by the defendant, Town of Braintree Board of Health (“the Board”), to revoke G6’s license to operate the Motel under G.L. c. 140, §32B and c. 111, §122.[1]  At issue before the Court is G6’s application for a temporary restraining order and motion for a preliminary injunction, enjoining the Board from enforcing its July 13, 2017, decision to revoke G6’s license while this case is litigated.

For the reasons that follow, the Court concludes that G6 has not shown that it is entitled to a temporary restraining order or a preliminary injunction, as it cannot show that it is likely to succeed on the merits.  Its application and motion are thus DENIED.



The relevant facts in the administrative record provided to this Court are as follows:

Procedural History:  On May 12, 2017, the Board notified the Motel that an emergency license revocation hearing would be held on May 18, 2017, to determine whether, pursuant to G.L. c. 140, §§30 and 32B, G.L. c. 111, §122 and 105 C.M.R. 410, the Motel had “violated certain provisions of [its] license” because of “concerns relating to public health and safety … as the result of the exorbitant number of police-related responses to the motel since 2010, including but not limited to sudden deaths, sexual assaults/offenses, drug overdoses, warrant services, as well as the most recent shooting of a Braintree police officer and apparent suicide [of the officer’s assailant] that took place at Motel 6 on Friday, May 5, 2017.”

Representatives of G6 and Braintree Mayor Joseph Sullivan (“the Mayor”) agreed that the Board would not oppose G6’s request to continue the hearing if G6 agreed to voluntarily close the Motel for 45-days, from June 1 to July 15, 2017, during which time G6 would work on improving the Motel’s security protocol.  Accordingly, G6 requested a continuance of the hearing.  The Board approved the Motel’s request.  The Motel voluntarily closed June 1.  The hearing was rescheduled for July 13, 2017.  Prior to the July 13 hearing, a public notice was published in the local newspaper.

Facts Disclosed at the July 13, 2017 Hearing:  At the July 13, 2017 hearing (“the Hearing”), the Board heard testimony from both the Braintree Police Department and G6 representatives, and allowed G6 to cross examine the police witnesses.  The Board also received an expert report submitted by G6.

Plaintiff G6 has been operating the Motel 6 located at 125 Union Street, Braintree, Massachusetts, since 1999.  The Motel is located approximately 50 yards from the Braintree MBTA subway station and close to a highway.  There are five other lodging establishments, all hotels, in Braintree – Candlewood Suites, Extended Stay, Hampton Inn, Holiday Inn (now known as the Beantown Inn), and Hyatt (collectively, with the Motel, “the facilities”).  The other facilities are not in the same proximity to the MBTA station. However, one of them, the Hyatt, is in close proximity to the South Shore Plaza, the second largest mall in New England, and is close to a highway.

In 2009, a woman was murdered at the Motel and her boyfriend committed suicide.  In response, in May, 2009, the Board notified G6 of a hearing to revoke the Motel’s license, alleging four grounds: death on the premises; major calls requiring police assistance; disproportionate volume of calls for police assistance; and insufficient supervision or inadequate management.  As a result of the hearing, G6 made two commitments to the Board in a December 15, 2010 letter – first, “we agreed to implement a number of security measures to address specific concerns” of the Board, and second, “we agreed to conduct a substantive renovation of the property.”

G6 noted that both commitments were timely met.  The Motel implemented new practices, including a nightly police detail and a nightly review of the guest registry by the Braintree Police Department.  For a period of time after in and after 2009, the Motel hired armed security guards, but at some point before 2017, that measure was ended.

The Motel’s license was renewed.  G6 claimed that “substantial improvement” in conditions at the Motel were reflected in the reduced number of “calls for service” to the police[2] and that “we virtually eliminated any true crime and activity at the property” in compliance with the commitments G6 had made to the Board.

However, despite the measures put in place, G6 was unable to stop criminal activity from increasing at the Motel after 2009, and from experiencing more such activity than any other facility.  In April, 2017, the Braintree Police Department made suggestions to the Motel for enhancing safety and security at the Motel – by requesting guests checking in to provide the number and names of those checking, obtaining license information so that the Braintree police could run checks for warrants, and preventing recurring rentals to people who have posed problems for the police.  There was no evidence that G6 took these steps.  Aside from that request, there was no evidence that G6 failed to take any other steps requested by the Braintree Police Department.

On May 5, 2017 (“the May 5 Incident”), Braintree police officers went to Motel 6 to serve a warrant on a guest in one of Motel 6’s rooms.  Without provocation, the guest shot a police officer in the head.  The other officers returned fire.  The gunman then barricaded himself in the room.  Several SWAT teams responded to the Motel.  Streets near the Motel were shut down, as was the nearby MBTA station.  An armored vehicle was positioned in front of the gunman’s room for protection, and the approximately sixty Motel guests were evacuated.  After efforts to contact the gunman were unsuccessful, police used another armored vehicle to breach the door to the gunman’s room.  Police officers entered the room and found the gunman dead.  The stand-off, which lasted approximately four hours, interfered with the public health, safety or public peace in Braintree.

At the Hearing, the Braintree Police Department presented evidence comparing the Motel, with 92 rooms, with the five other facilities which collectively had 738 rooms.  Even though the Motel had implemented steps to control criminal activity after 2009, the data showed that from 2010 through 2017, the number of police responses to, or incidents occurring within, the Motel was higher than at any of the other facilities.  For instance, violent crime incidents, which included instances in which warrants were executed,[3] rose at the Motel from 18 incidents in 2010, to 121 in 2015, with a slight decrease to 114 in 2016.[4]  The next highest number of such incidents at the other hotels was 18 at the Hyatt in 2015 and 14 at Candlewood in 2016.[5]  From January 1, 2017 to May 14, 2017, there were 164 incidents at the Motel, twice the number at the Hyatt, 8 times the number at Extended Stay and Candlewood, and 18 times the number at Hampton Inn and Holiday Inn.[6]  The majority of overdoses that occurred at the facilities from 2014 to 2016 occurred at the Motel.  In total, there were more than 25 overdoses at the Motel.  In 2014, there were 9 overdoses at all facilities, 8 of them at the Motel; in 2015, a total of 7 at all facilities, with 4 at the Motel; in 2016, a total of 15 at all facilities, with 12 at the Motel, and in 2017, a total of 7, with 5 at the Motel.

In the aftermath of the May 5 Incident, G6 met with the Mayor and Police Chief on May 11.  The Mayor suggested a temporary shutdown or redevelopment of the Motel property.  The Acting Police Chief suggested a total teardown of the property.  G6 conceded that they had “dropped the ball,” were “surprised at how high the numbers were” (presumably reflecting criminal activity), and that G6 “want[s] to fix it.”  G6 suggested further changes to change the Motel’s clientele[7] and enhance security, including expanding desk check-in controls and policies, implementing a no-cash payment policy and adding supplemental services.  The Acting Chief noted that a credit-card only policy would leave patrons with cash without a place to stay, and that they would seek refuge in the Braintree Police Department lobby during inclement weather, as had happened regularly in the past and which posed an unmanageable burden on the Department.

For the three weeks until the Motel was voluntarily closed on June 1, G6 began using some of the new steps, including the credit-card only policy, informing guests at check-in of the Motel’s cooperation with the Braintree Police Department, using Braintree Police Department officers as a detail seven nights a week, requiring all guests and visitors to present government-issued photo identifications at check in, and prohibiting non-guest visiting after 10 PM.  During that period, there were 15 calls for service to the police and one overdose.  G6 understood that guests coming from shelters were a main generator of calls for service and resulted in a “tremendous number” of ambulance calls.  G6 claimed it had addressed this issue since the May 5 Incident with the credit card only policy.  Prior to the May 5 Incident, G6 did not decline to take any additional security steps that the Braintree Police Department had requested and was not told by the police that its security protocols were insufficient.

G6 claimed that it faced crime generators that other facilities did not, citing its access by the MBTA and by vehicle.  G6 engaged a criminologist, Dr. Daniel B. Kennedy, who conducted a security analysis of the Motel which was presented at the Hearing.  Dr. Kennedy did not meet with the Braintree Police Department to discuss his analysis.  Dr. Kennedy opined that the Motel’s proximity to the MBTA station and nearby roads and highway and its cooperation with the police resulted in an increased number of calls for service, and that calls for service did not necessarily mean that criminal activity had occurred.  Dr. Kennedy found that there were 35 crimes of violence at the Motel over 5 years.  He also analyzed the call logs of the 465 disturbances or suspicious activity calls for 2014, 2015 and 2016 and found that there were 7 arrests in 2014 for suspicious activity or disturbances, 19 arrests in 2015, and 3 arrests in 2016.  Further, of the 310 calls for service in 2014, 283 resulted in criminal incidents.  Of the 439 calls for service in 2015, 309 resulted in criminal incidents.  Of the 500 calls for service in 2016, 463 resulted in criminal incidents.  Dr. Kennedy further opined that G6’s security protocols at the Motel exceeded the applicable standard of care for a budget motel.

A Braintree Police Lieutenant disagreed that the standard of care applied by Dr. Kennedy was appropriate for the Motel, and that it defied logic that despite the presence of police on the property, crime continued to rise at the Motel.

G6 asserted that it was not until the May 11, 2017 meeting with the Mayor and Acting Chief that G6 was told it was not doing what it was supposed to do, but understood that it had dropped the ball because it was ultimately responsible for the property, and that it should and could do better.  On May 11, G6 promised to return with a comprehensive plan to address the town’s concerns and that while G6 did not have every detail of it resolved, had developed a plan which it outlined for the Board.  G6 proposed new steps to control ingress to and egress from the property and which would enhance its knowledge and that of the police as to who was on site.  In Phase I, G6 was prepared to build an 8-foot high fence around the Motel property which was being designed by architects and to install additional lighting, the plans for which were not yet complete.  A restaurant on one side of the property was to be re-purposed as a new lobby through which every guest would have to pass and a new gate and new parking would be added, which would enhance G6’s ability to know who was coming onto the property.  In addition to the 16 cameras in use, G6 planned to add 16 more and would work with the police to place them and to provide the police with remote access to them, which the police did not yet have.  A community area would also be added, with tables, chairs and lighting, but the plans for it had not yet been finalized.   G6 also proposed building a sidewalk around the property to keep people from passing through the Motel’s property, for which G6 would need town approval.  In Phase II, G6 planned to redesign the roofing on both of the Motel’s buildings, the design for which was not yet done.  G6 recognized that the town wanted a new building, but that G6 was not able to commit to that.

G6 claimed that no other economy hotel took steps such as it was proposing.

G6 did not work with the Braintree Police Department in developing its plans for updating the security posture of the Motel.  The Braintree Police Chief testified that he expected to meet with G6 after the May 5 Incident to create an integrated policy or response for security, but that G6 did not contact him until the day before the July 13 hearing and at that time, told him about the plans it had developed on its own.  The steps proposed by G6 were, in the Chief’s mind, good steps but not the whole answer, which should come from mutual cooperation between the police and G6, which could develop its own comprehensive list of necessary steps.  The Chief testified that in his mind at present, neither the police nor G6 could ensure the safety of Braintree citizens in light of the manner in which the Motel was operating, and that the police could not increase their presence to achieve the public’s safety.

A Board member asked why despite the steps taken since 2009, the Motel still topped the list for calls to the police for service, and remained at the top even though the Motel was closed from June 1 to July 14.  G6 disputed the statistics and alleged that they grossly misrepresented the actual criminal activity at the Motel, and that without warrant activity, there were 35 crimes of violence at the Motel in five years, but conceded it did not conduct a similar analysis of the data from the other facilities to ensure an apples-to-apples comparison with their data.  A Board member also noted that G6 was not offering to enclose the Motel like a hotel, and whether there was research showing whether doing so would provide better security than a fence around the existing structure.  In short, the Board member noted that G6 had not demonstrated that it could effectively address rising crime at the Motel with the Motel’s proximity to the MBTA station.

At the conclusion of the hearing, all three Board members read from prepared statements about their concerns about the Motel to the effect that, since 2009, the Motel had been on notice of safety concerns, and that despite steps taken by G6, crime continued to escalate at the Motel, and that it posed a public nuisance.  One member made a formal motion – that because documentary evidence and testimony at the hearing showed that there continued to be a disproportionate number of incidents of criminal activity and violent crime at the Motel which G6 had failed to curb, the license to G6 to operate the Motel be revoked.  Pursuant to G. L. c. 140, § 32B and c. 111, § 122, the Board voted unanimously, 3-0, to revoke G6’s license to operate the Motel, effective July 18, 2017.


  1. Legal Standards

“A party seeking a preliminary injunction must show that success is likely on the merits; irreparable harm will result from denial of the injunction; and the risk of irreparable harm to the moving party outweighs any similar risk of harm to the opposing party.”  Doe v. Superintendent of Schools of Weston, 461 Mass. 159, 164 (2011), citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 616-17 (1980).   Where a plaintiff seeks to enjoin government action, the court must also weigh whether the relief adversely affects the public.  Commonwealth v. Mass. CRINC, 392 Mass. 79, 89 (1984). The standards used to consider a request for a temporary restraining order is the same as that used for a preliminary injunction. See Quincy Cablesystems, Inc. v. Sully’s Bar, Inc., 640 F. Supp. 1159, 1160 (D. Mass. 1986).

Where a party seeks certiorari review of an agency decision, the Court’s analysis is confined to the record before the agency and to correcting “substantial errors of law apparent on the record adversely affecting material right,” providing great deference to the agency.  See Commissioner of Revenue v. Lawrence, 379 Mass. 205, 208 (1979); Police Comm’r of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999); Flemings v. Contributory Ret. Appeal Bd., 431 Mass. 374, 375 (2000); Murphy v. Contributory Retirement Appeal Bd., 463 Mass. 333, 344 (2012).  The standard of review for an action in the nature of certiorari depends on “the nature of the action sought to be reviewed.”  Black Rose, Inc. v. City of Boston, 433 Mass. 501, 503 (2001), quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 49 (1977).

Both parties agree that the standard applicable to certiorari review under G.L. c. 249, § 4, has progressively converged toward the standard of review set under G.L. c. 30A, § 14(7).  See DM Hospitality Corp. v. Board of Selectmen of West Boylston, 85 Mass. App. Ct. 1115 (2014).  Thus, both parties suggest that this Court’s review “must ultimately turn on whether the agency’s decision was arbitrary and capricious, unsupported by substantial evidence, or otherwise an error of law.” Hoffer v. Board of Registration in Med., 461 Mass. 451, 458 n. 9 (2012).[8]

“Under the ‘arbitrary and capricious’ standard the burden is on the plaintiff to show that the challenged action is not related to the protection of public safety, health, morals, and the like.”  Forsyth, 404 Mass. at 217-18.  In applying the arbitrary and capricious standard, the Court does not weigh evidence, find facts, exercise discretion, or substitute its judgment for that of the administrative body but rather determines if the decision is legally erroneous or without factual support.  FIC Homes of Blackstone, Inc. v. Conservation Comm’n of Blackstone, 41 Mass. App. Ct. 681, 684-85 (1996).  “A decision is arbitrary or capricious … where it ‘lacks any rational explanation that reasonable persons might support.’”  Perullo v. Advisory Committee on Personnel Standards, 476 Mass. 829, 836 (2017), quoting Frawley v. Police Comm’r of  Cambridge, 473 Mass. 716, 729 (2016) and Doe v. Superintendent of Schs. of Stoughton, 437 Mass. 1, 5 (2002).  “[I]n exercising its wide discretion to issue or withhold licenses, a licensing authority may take into account other factors affecting public interests and welfare … ‘Within the area of discretion the power lies in the licensing authority and not in the court.’”  Cumberland Farms, Inc., 88 Mass. App. Ct. at 530 (citations omitted).  Thus, a local board’s action is arbitrary and capricious if it constitutes an error of law or has no rational basis – that is, it is not “related to the protection of public safety, health, morals, and the like.”   Sierra Club v. Comm’r of Dep’t of Environmental Management, 439 Mass. 739, 748-49 (2003); Forsyth, 404 Mass. at 217-18.  To determine whether substantial evidence exists, the court considers the entire record, including whatever facts fairly detract from the agency’s findings.  Covell v. Dept. of Social Services, 439 Mass. 766, 783 (2003); Boston Gas Co. v. Board of Assessors of Boston, 458 Mass. 715, 721 (2011).   Nevertheless, the court may “not substitute [its] view as to the facts,” but must accept the agency’s opinion “as long as there is substantial evidence to support [its] findings.”  Chadwick v. Board of Reg. in Dentistry, 461 Mass. 77, 96 (2011), quoting Cherubino v. Board of Reg. of Chiropractors, 403 Mass. 350, 354 (1988).

Under either standard, G6 has not demonstrated that it is likely to prevail on the merits. While the parties disagree about the scope of the Board’s authority to take action in response to crime – a public nuisance[9] – G6 does not contend that the Board is without legal authority to act in response to the type of public nuisance which is alleged here under G.L. c. 140, § 32B and/or G.L. c. 111, § 122.[10]  Instead, G6 contends that the Board erred as a matter of law because it revoked G6’s license without finding that it had violated a specific condition imposed upon it in and after 2009, and that the record demonstrated that G6 complied with all requests made by the town and recommendations made by its own consultants.  Neither proposition is correct.

The Board took action under two statutes and one Code of Massachusetts regulation.  As the regulation does not illuminate the issues, the Court focuses on the two statutes.  Under the first, G.L. c. 140, § 32B, “the board of health or any city or town, in each instance after a hearing … may revoke licenses … for motels.”  In addition, §32B provides the Board with the authority to adopt, amend, or alter, rules and regulations so to enforce this section.  See Cliff v. Bd. Of Health of Amesbury, 343 Mass. 58, 61 (1961).  Under the second, G.L. c. 111, § 122, “the board of health shall examine into all nuisances … [and] shall destroy, remove or prevent the same as the case may require.”  G6 contends that the Board must have rules and regulation in place before it revoked its license, and cites cases involving health and sanitary issues.  Those cases, and G6’s logic, are inapposite here.  While regulations have clear utility in managing the quality of water or the disposal of sewage, they have far less utility here, where the Board has been acting since 2009 – with G6’s participation – to control crime at the Motel.  In any event, no law supports G6’s argument that without rules and regulations concerning the Board’s efforts in this case, the Board is without authority to revoke its license.

G6 argues that it took all reasonable steps it could to control crime at the Motel, and relies on Hub Theaters, Inc. v. Massachusetts Port Authority, 370 Mass. 153 (1976), and Strachan v. Beacon Oil Co., 251 Mass. 479 (1925) for the proposition that certain uses of land impose social costs and that, without a finding a fault by the landowner, the government cannot revoke its license to operate.  Both cases are distinguishable from this one.  In both cases, the nuisance imposed by the use of the land in Hub Theaters and Strachan was an inevitable consequence of that use.  Hub Theaters was a suit by a drive-in theater operator for damages arising from the alleged nuisance caused by Logan Airport – that airplanes flying in and out of the airport interfered with the theater’s operation.  In Strachan, neighbors of an oil refinery sought damages for nuisance caused by the odors and noise and fire created by the refinery.  In both cases, the Supreme Judicial Court found that the nuisance posed by Logan Airport and the refinery were “inevitable” aspects of those operations.  As the Board argues, while noise is an inevitable result of running an airport, and fumes an inevitable result of running a refinery, criminal activity is not an inevitable result of running a motel.  Indeed, there is nothing inherent about motel operation that creates crime.   Further, in both cases, the use challenged by the plaintiffs was authorized by the government — Logan had been specifically authorized by a legislative enactment, and the refinery in Strachan had been authorized by a permit issued by the town of Everett.  In both cases, private plaintiffs had to overcome the government’s sanctioning of the challenged use.  This case is not one brought by private plaintiffs seeking damages against a land use that is otherwise authorized by the government.  It is instead an action by the government to withdraw that authorization itself.  It thus poses completely different issues and puts squarely at issue the government approval that was in the backdrop of Hub Theaters and Strachan.  Neither of these cases supports G6’s claim that the Board must show a violation of its license before it can revoke it.

Even if G6 could make the argument that it had complied with all conditions set by the Board such that its action was arbitrary or capricious or without substantial evidence, G6’s argument would fail, as well.  Some of the requested steps – such as those suggested by the Braintree Police Department in April 2017 – were not taken.  More generally, nothing in the steps the Board required after the 2009 murder-suicide locked the Board into a specific set of steps to which G6 was required to comply.  The Board’s position was simpler – it concluded there was an unacceptable level of crime in 2009, it required G6 as a condition of continued licensure to address it, and despite years of effort, G6’s steps had failed to stop the increase of crime at the Motel, especially violent crime.  G6 did not dispute those core claims; instead, it conceded that it had “dropped the ball,” that it could and should take additional steps to control crime, and spent the first part of its presentation outlining in detail those steps.  Indeed, even Hub Theaters and Strachan recognized that landowners with governmental authority to operate nonetheless must take appropriate steps to ameliorate any nuisance.[11]  Accordingly, the Board’s revoking of G6’s license, in the face of G6’s admission that it had not taken those additional steps, is neither irrational nor unsupported by the record.

For purposes of deciding whether emergency relief is appropriate, G6 cannot show at this point that it is likely to prevail on its argument that the Board acted beyond its authority under G.L. c. 111, § 122 and G.L. c. 140, § 32B.


Plaintiff G6’s application for a temporary restraining order and motion for a preliminary injunction is DENIED.




Justice of the Superior Court


Date:  July 25, 2017









[1] G6 also alleges a claim for violation of the open meeting statute, G.L.  c. 30A, §§18-25, asserting that Board members decided on their votes prior to the public hearing.  That claim is not actionable.  The enforcement section of that statute, G.L. c. 30A, §23, requires that any complaint be made by the attorney general or by three or more registered voters.  Neither is the case here.


[2] A “call for service” is a call to 911 or a call from a police officer back to the police department regarding an incident or an action taken by the officer. A call for service does not necessarily result in an arrest.

[3] Violent crime at the Motel included assault and battery, assault and battery with a dangerous weapon, domestic assault and battery, domestic dispute, kidnapping, rape, robbery, sex offenses, service of warrants and weapons violations.


[4] The Braintree statistics reflecting calls for service were based on raw numbers uninformed by a review of police report narratives that explained the nature of the call, except for the period from May 14, 2017 to July 11, 2017, for which the Braintree Police Department analyzed the 40 calls for service from the Motel.  Eliminating calls that were safety checks and motor vehicle stops at the Motel left 15 calls for service, one for violent crime and warrant service.


[5] More warrants were served at the Motel than at the other facilities; for instance, in 2015, 92 were served at the Motel versus 5 at the next busiest facility.  However, the Motel permitted Braintree police to review its registers for warrant violators whereas other facilities had only recently began providing registers to the police upon request.  Nevertheless, even if warrant service was taken out of the violent crime numbers, the Motel still led all facilities in violent crime.


[6] The 164 number did not include motor vehicle stops, accidents and the like, but the officer who conducted the analysis conceded it was possible that some of 164 incidents concerned traffic in the area of the Motel, which is heavier than elsewhere in town, and not incidents at the Motel.


[7] The Acting Police Chief reported to G6 that in addition to out-of-state or out-of-country construction workers and their families, the Motel was patronized by prostitutes, gang members and homeless people.  G6 indicated it was aware that some of its then-current clientele were causing calls for service to the police.

[8] While not necessary to determine in resolving the present motion, it is unclear whether the Board’s action is subject to either the arbitrary and capricious or substantial evidence standard, but not both.  The determining factor is whether the Board was acting in an adjudicatory role. Under G. L. c. 140, § 32B, “[t]he board of health of any city or town, in each instance after a hearing” and with reasonable notice “may grant, and suspend or revoke licenses for . . . motels.”  Here, the Board held a hearing as required.  Since an adjudicatory proceeding is “a proceeding before an agency in which the legal rights, duties or privileges of specifically named persons are required by constitutional right or by any provision of the General Laws to be determined after opportunity for an agency hearing,” General Laws c. 30A, § 1(1), this arguably constituted an adjudicatory hearing for which the substantial evidence standard of review is applied.  See Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 924-925 (1980) (revocation proceeding required by statute was adjudicatory in nature), cited in Cumberland Farms, Inc. v. City Council of Marlborough, 88 Mass. App. Ct. 528, 529 (2015). However, the Board did not make factual findings and did not apply narrow and objective criteria, both emblematic of adjudicatory proceedings.  Cumberland Farms, Inc., 88 Mass. App. Ct. at 530 (lack of factual findings according to narrow and objective criteria suggested hearing was non-adjudicatory).  “Where the action being reviewed is not a decision made in an adjudicatory proceeding and where the action entails matters committed to or implicating a board’s exercise of administrative discretion, the court applies the ‘arbitrary and capricious’ standard.” Garrity v. Conservation Comm’n of Hingham, 462 Mass. 779, 792 (2012), citing Forsyth School for Dental Hygienists v. Board of Registration in Dentistry, 404 Mass. 211, 217-18 & n. 2 (1989); Cumberland Farms, Inc., 88 Mass. App. Ct. at 530 (city council vote to deny license after a non-evidentiary hearing was discretionary; arbitrary and capricious standard applied).

[9]See Leary v. Boston, 20 Mass. App. Ct. 605, 609, (1985) (public nuisance is “an unreasonable interference with a right common to the general public”).


[10] In fact, one of the cases relied upon by G6, Saxon, 380 Mass. 919, stands for the proposition that, upon a proper factual foundation, a municipality has authority to revoke the license of a business because of, and to control, crime that occurs in connection with the business’ operations.

[11] In Strachan, the court found that they had not because the refinery was operated in conformance with the license: “if the licensee has complied in all respects with the terms [of the license,] what he does thereunder, even if without such a license the acts done would be a nuisance.” 251 Mass. at 487.  However, a nuisance claim brought by a private plaintiff could still be found if some “unlawful or improper use were made of the refinery premises” and if “dangerous or objectionable elements” had not been “eliminated by a proper conduct of the business.”  251 Mass. at 488, citing Sawyer v. Davis, 136 Mass. 239 (1884).  “As petroleum cannot be refined without creating odors, and as … the defendant had exercised reasonable diligence to minimize such odors, and it does not appear that further or additional precautions can reasonably be adopted to prevent the escape of such odors” the refinery was not a nuisance.  Id.  In Hub Theaters, the Court found that a business sanctioned by the Legislature “is not without limitations” in the manner in which the business was conducted.  “Rather, it is ‘subject always to the qualifications that the business must be carried on without negligence or unnecessary disturbance of the rights of others.’”  370 Mass. at 156, quoting Sawyer.

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