Night At Roxbury Trailer
Flaviana Bresee
In two separate incidents Saturday night, a sinkhole formed on Roxbury Street in Keene, and a tractor trailer driver appears to have misjudged the traffic circle on Central Square, causing damage to the common, Keene police said Sunday.
A tractor trailer heading north onto the traffic circle at Central Square shortly after 9 p.m. Saturday failed to negotiate the turn and went over the curb of the common, driving over a number of the granite posts, snapping one streetlight, bending another, and uprooting a hydrant, said Keene police Sgt. Collin Zamore. The driver of the truck, which had a 53-foot trailer, was not injured, Zamore said.
Water from the broken hydrant also flowed into the approximately 15-by-10-foot sinkhole on Roxbury Street near Roxbury Plaza, police said. The area from Roxbury Plaza to near the Elks Lodge was still closed Sunday morning.
The impact directly into the side of the trailer sheared the top of the Subaru from the front of the windshield to the middle of the passenger compartment. The driver was pronounced dead at the scene.
Police referred questions about the crash on Tuesday to the Morris County Prosecutor's Department, which only confirmed an "active investigation" at the scene but declined to offer further details until Tuesday night.
Police closed Route 46 in both directions between the Netcong Circle and Frontage Road as responders rushed to the scene around 9 a.m. The New Jersey Department of Transportation alerted drivers to the closure on social media.
A holder of two licenses for the storage and sale of diesel fuel could not challenge, either on statutory or constitutional grounds, the sufficiency of a notice of a revocation hearing which failed to advise the holder of any particular ground on which its license might be revoked where the plaintiff, although it recorded its objection to the asserted deficiency in the notice, made no effort to obtain any specification of charges or any request for additional time to prepare its case. [289-291]
There was no merit to a contention by a license holder that it was denied an opportunity for reasonable cross-examination of witnesses at a revocation hearing before the licensing authority. [291-292]
Where, following public hearings to determine whether two licenses should be revoked under G. L. c. 148, Section 13, the city council, as licensing authority, reached a tentative decision to revoke the licenses but, since the decision was based in part on police reports which had not previously been supplied to the holder, gave the holder an opportunity to rebut the reports at a further hearing, the holder was not prejudiced by the belated disclosure of the police reports. [292-293]
At a license revocation hearing before a city council, as the licensing authority, the license holder was not prejudiced by the council's allowing a witness to testify from a written list of alleged violations of license restrictions without requiring that the list be submitted in evidence or by the council's consulting the minutes of certain of its prior proceedings. [293]
Where the record of a license revocation hearing before a city council, acting as licensing authority under G. L. c. 148, Section 13, failed to disclose either the council's construction of restrictions on the licenses or what specific conduct it considered to be in violation thereof, the correctness of the council's decision was essentially unreviewable, and the case should have been remanded to the council for a clarification of its findings. [294-296]
GRANT, J. This is an action in the nature of certiorari (G. L. c. 249, Section 4, as appearing in St. 1973, c. 1114, Section 289) brought in the Superior Court for the purpose of quashing a decision of the city council of Gloucester (council) by which it purported to revoke two licenses for the storage and sale of diesel fuel which the council had granted to the corporate plaintiff in 1976 under the provisions of G. L. c. 148, Section 13, as amended through St. 1959, c. 353, Section 1. [Note 3] The plaintiffs have appealed from a final judgment declaring the validity of the council's action. The case was submitted to a judge of the Superior Court solely on stipulated portions of the records of the council, including the stenographic transcripts of the public hearings which preceded the council's ultimate decision to revoke the licenses. As the case is here on the same records, the judge's views on the various issues are not entitled to any special weight. Compare Southern Worcester County Regional Vocational Sch. Dist. v. Labor Relations Commn., 377 Mass. 897, 903 (1979).
Avenue in Gloucester on which the corporate plaintiff conducts its business, which includes fueling, servicing and repairing diesel drawn tractor-trailer trucks. The buildings and the island containing the fuel pumps are located on land now zoned for industrial uses. The only safe and practical means of vehicular egress from the fuel pumps is a driveway which leads back to Eastern Avenue over land which is zoned for residential uses and in which the plaintiffs claim a nonconforming use. Except for a gasoline filling station located on the opposite side of the street, the surrounding neighborhood is predominately residential in character.
Two separate licenses for the storage and sale of diesel fuel were granted to the individual plaintiff in 1949 and 1951. [Note 4] In 1976, following public hearings, the council, as the licensing authority under G. L. c. 148, Section 13, revoked both licenses and granted new ones to the corporate plaintiff which contained the restrictions set out in the margin. [Note 5]
The plaintiffs do not challenge the validity of the actions taken by the council in 1976, although they claim that certain of the restrictions are so vague and ambiguous as to preclude their enforcement. At a meeting of the council held on July 18, 1978, residents of the neighborhood voiced numerous complaints as to the manner in which the corporate plaintiff had been conducting its business, supposedly in violation of the restrictions. The individual plaintiff was present and addressed the council. At the conclusion of the meeting the council voted to conduct a public hearing to determine whether the licenses should be revoked, subjected to additional restrictions, or clarified. The notice of that hearing which was given to the plaintiffs and published in a local newspaper is set out in the margin. [Note 6] Public hearings were held on September 26, October 11 and December 5, 1978, at all of which the plaintiffs were represented by counsel. At the September 26 hearing several neighbors complained of what they regarded as numerous violations of the restrictions
found in the licenses. Further complaints were voiced at the October 11 hearing, at the conclusion of which the council voted (eight to one) to revoke the licenses, and also that "just for the sake of legality . . . [a committee of the council] meet with the [c]ity [s]olicitor to write up the reasons for the revocation and record it in the books so that there would never be a question the reasons were not given." [Note 7]
On October 31 the plaintiffs' counsel received from the city clerk a "Proposed Notice of Decision," including a "Statement of Reasons," in which the council purported to make findings of fact and rulings of law in support of its decision. The council purported to find that the individual plaintiff had "violated on a continuous basis the conditions and restrictions prescribed in his license" and that modification or clarification of the conditions would be futile because "the neighborhood problems stem from the licensee's continuous violation of the conditions and restrictions and not from their lack of clarity or comprehensiveness." [Note 8] Accompanying the foregoing was a letter from the city clerk stating that the council had been advised by the city solicitor that its decision should be regarded as only tentative because it was based in part on the contents of certain police reports which had not previously been supplied to the plaintiffs and of which they were unaware. Copies of those reports were supplied with the letter, which advised that the plaintiffs would be given an opportunity to address the council in explanation or rebuttal of the evidence contained in the reports.
At the request of the plaintiffs a further public hearing was held on December 5, at which the plaintiffs' counsel discussed each police report individually, and effectively demonstrated the dubious materiality of most of the reports. At the conclusion of that hearing the council voted unanimously
The plaintiffs contend that the notice and hearing which they were accorded prior to revocation of the licenses were inadequate. Specifically, they contend that the formal notice did not inform them with sufficient particularity of the charges against them or of the action that the council might propose to take; that they were denied an opportunity to cross-examine adverse witnesses; that they were informed of the council's reliance on police reports too late to permit effective explanation or rebuttal thereof; that certain evidence was improperly admitted; that the members of the council were biased against them; that the council's decision to revoke the licenses was not supported by an adequate statement of findings and reasons; and that the restrictions in the licenses were impermissibly vague. They contend in particular that the findings that the council did make are not supported by substantial evidence.
1. Adequacy of notice. (a) Under State law. The holder of a license for the storage and sale of petroleum products is expressly entitled by statute (G. L. c. 148, Section 13) to a notice and hearing before his license can be revoked. The notice given must state the ground(s) upon which the licensing authority intends to proceed with sufficient particularity to apprise the licensee of the charges to be met and enable him to prepare his case. Higgins v. License Commrs. of Quincy, 308 Mass. 142, 145-146 (1941). Compare Manchester v. Selectmen of Nantucket, 335 Mass. 156, 158-159 (1956). Mere defects in the form of the notice will not render it invalid, but the notice, taken in conjunction with the hearing, must be sufficient to accomplish substantial justice. Higgins v. License Commrs. of Quincy, 308 Mass. at 146.
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