21.328 Solicitor Memo on Fuel Storage License
TO: Northampton City Council
FROM: Alan Seewald, City Solicitor
RE: Fuel Storage Licenses, M.G.L. c. 148, § 13
DATE: March 22, 2021
________________________________________________________________________
You have requested my opinion regarding the role of the Northampton City Council in granting
fuel storage licenses pursuant to M.G.L. c. 148, § 13. This issue arose when the Council was
considering a fuel storage license at the Big Y Plaza on North King Street, and Councilors were
unsure whether the Council was in any way constrained to approve it. The specific question related
to the desire to move away from fossil fuels and to reduce greenhouse gases, and whether
additional gas stations are consistent with those goals.
Section 13 does not provide narrow and objective criteria for the Council to apply in evaluating an
application, so the short answer is that the Council was not constrained to grant the license. The
decision whether to issue a license is vested in the Council’s substantial discretion limited only by
the requirement that its discretion be exercised in a manner that is not arbitrary or capricious. The
process is administrative; it is not an adjudication as is, for instance, the issuance of a special
permit under the specific criteria set forth in the Zoning Ordinance. Therefore, a record of the
concerns underlying the denial must be made and preserved as is required under the Open Meeting
Law, but the Council is not required to make detailed findings of fact to support its decision.
The case law under § 13 demonstrates the approach to such a licensing decision and the types of
concerns that have supported a denial as a reasonable exercise of discretion. In Marlborough, a
denial of a fuel storage license at a Cumberland Farms was upheld where the Council was
concerned about “leaks and accidents affecting the nearby reservoir, compensation for affected
neighbors, hours of operation, lighting, noise and odors, sidewalks on Walker Street, traffic, use
of the station by large diesel trucks, opposition from residents, and competition with existing
businesses.” Cumberland Farms, Inc. v. City Council of Marlborough, 88 Mass. App. Ct. 528
(2015). A denial in Brockton was upheld where the “council may have reasoned that another
station would tend to increase traffic at an already burdened intersection; that [vehicles entering
and exiting the station] would further interfere with the free flow of traffic; that the risk of accidents
to children and others would be increased; that there would be additional noise and odors; and that
there was no counterbalancing public demand for another station in this immediate vicinity.”
Kidder v. City Council of Brockton, 329 Mass. 288, (1952).
Office of City Solicitor
City of Northampton
210 Main Street, Room 12
Northampton, MA 01060
Alan Seewald, Esq.
City Solicitor
MEMORANDUM
Please reply to:
One Roundhouse Plaza, Ste. 304
Northampton, MA 01060
(413) 584-4455
aseewald@northamptonma.gov
Northampton City Council Page 2
March 22, 2021
The Court in Cumberland Farms acknowledged that “in exercising its wide discretion to issue or
withhold licenses, a licensing authority may take into account … factors affecting public interests
and welfare.” However, the public interests in the cited cases related to the site, not to overall
societal goals such as moving away from the use of fossil fuels to power automobiles. When the
Court in the Brockton case noted the lack of counterbalancing public demand for another station,
it was referring to the fact that there were already four stations along the same street, one of which
was diagonally across the street.
While there are no cases under § 13 addressing the specific question of denying a license for a new
gas station to promote sustainability goals, thereby rendering the outcome of an appeal less than
certain, in my opinion the denial of a fuel storage license would be an appropriate exercise of
discretion where both the Commonwealth 1 and the City 2 have specifically expressed policy goals
that the Council determines would be undermined by the issuance of the license. Those policy
goals are the very expression of the public interest and public welfare that are the within the
Council’s wide discretion to consider when making licensing decisions under § 13.
As stated above, this opinion applies to the discretion of the Council where the statute does not
provide specific criteria for the Council to apply in considering an application. Where such criteria
are provided, the Council would be constrained to make specific findings and limited to applying
the stated criteria.
Please let me know if you need any further information in this regard. I would be pleased to appear
at an upcoming Council meeting if that would assist the Councilors in understanding their role in
statutory licensing matters.
1 See, e.g., Mass. EOEA 2015 Updated Clean Energy and Climate Plan for 2020.
2 See, e.g., Northampton Climate Resilience & Regeneration Plan; 19.123 A Resolution Calling for the
Federal Government to Pass a Green New Deal.