BOARD OF APPEALS OF NORTH ANDOVER vs. HOUSING APPEALS COMMITTEE & others. [Note 1]

ARMSTRONG, J. The board of appeals of North Andover brings this appeal from a judgment of the Superior

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Court which affirmed a decision by the Housing Appeals Committee ordering the board (under G. L. c. 40B, Section 23) to issue a comprehensive permit for the construction of 230 units of low and moderate income housing. The only contention made by the board in this court which has not already been decided adversely to it in Board of Appeals of Hanover v. Housing Appeals Comm. 363 Mass. 339 (1973) (the Hanover case), or been waived by it [Note 2] is that one of the conditions contained in the order of the Housing Appeals Committee is invalid because it conflicts with provisions of the State Building Code and the law under which it was promulgated.

The condition in question provides in part [Note 3] that "[i]n the event that disagreement between the builder and local officials arises, certification by the Department of Community Affairs, if requested, shall be adequate proof of compliance with any requirement under the Comprehensive Permit, or any of the other terms of this order." The board of appeals contends that, as compliance with the

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State Building Code is one of the express "terms of this order" (see fn. 3), the condition is intended to displace the procedure provided by the State Building Code for the resolution of disputes concerning compliance with its terms. That procedure provides that, in the event of such a dispute, any appeal by the builder is to be heard by the State Building Code Appeals Board or, in some instances, by a local or regional appeals board with a further appeal to the State Building Code Appeals Board. [Note 4]

Conditions similar to the one at issue in this case were included in the two orders of the Housing Appeals Committee reviewed in the Hanover case, [Note 5] both of which preceded the effective date [Note 6] of the State Building Code; consequently, we should have questioned whether the condition was meant to apply to disputes concerning compliance with the State Building Code had the Housing Appeals Committee not stated in its decision that that was in fact what it did intend. "To the extent that . . . [the order in question in this case] may differ from the administrative provisions of the new [S]tate [B]uilding [C]ode, the order

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of the [Housing Appeals Committee] shall take priority, and resolutions of local disputes between the developer and the town will be resolved pursuant to that order." Again, in an effort to avoid a conflict, we might have assumed that the phrase "local disputes" meant disputes concerning local requirements only; but the decision explicitly blocked this path, making it clear that the condition was intended to apply to disputes concerning the application of the provisions of the State Building Code. [Note 7] The conclusion is inescapable that the condition at issue was intended to, and would, have the effect of displacing the procedure provided by the State Building Code for the resolution of disputes concerning its provisions between the builder or developer on the one hand and the

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local building inspector, who is the designated enforcement officer of the code, [Note 8] on the other.

The Hanover case held that G. L. c. 40B, Sections 20-23, gave the Housing Appeals Committee "the authority to override local requirements and regulations . . . including zoning ordinances or by-laws." 363 Mass. at 354-355. We find nothing in those sections or in the Hanover case which suggests that the Housing Appeals Committee has been empowered to override or ignore laws passed by the Legislature or regulations validly promulgated by the Commonwealth's various boards, departments, agencies or commissions. The position of the Housing Appeals Committee seems, at most, to be that such a power would be helpful in effectuating the legislative purpose underlying Sections 20-23. That is quite possibly true,9 but it is not a basis for this court to invest the Housing Appeals Committee with powers beyond those given it by the Legislature.

We hold, therefore, that the third condition appearing in the decision of the Housing Appeals Committee is in excess of its authority; and for that reason (and no other)

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the judgment affirming the decision is reversed. The Superior Court, retaining jurisdiction, shall enter an order remanding the case for further proceedings by the Housing Appeals Committee not inconsistent with this opinion.

So ordered.

The case was argued before Keville, Goodman and Armstrong, JJ., and was thereafter submitted on the record and briefs to all the other Justices pursuant to Mass.R.A.P. 24(a), 365 Mass. 872 (1974).

GOODMAN, J. (dissenting, with whom Brown, J. concurs). We see no occasion in this case to determine how condition no. 31 relates to the two provisions (Section 108.1 and Section 126. [Note Dissent1]) of the State Building Code [Note Dissent2] which the zoning

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board of appeals (board) asserts to be inconsistent with that condition. Section 108.1 concerns only the local building inspector, who was not a party to the administrative proceeding before the Housing Appeals Committee (committee) or to this action. The parties to the administrative proceeding were the board and the applicant; and the order issued by the committee was directed to the board. Further, there is no present conflict between Section 126.1 and condition no. 3 of the committee's order which requires our intervention. The comprehensive permit which the order required the board to issue mandates by condition no. 1 (see fn. 1) construction according to the State Building Code. If there should arise a conflict as to compliance with the State Building Code which arguably calls into question the duties and responsibilities of the building inspector, it will then be time enough to adjudicate the extent to which, if any, condition no. 3 is relevant. Its relationship to the State Building Code should await a concrete situation in which its application is in issue. Green v. Board of Appeal of Norwood, 358 Mass. 253 , 264 (1970). Lugo v. Employees Retirement Fund of the Illumination Prod. Indus. 529 F.2d 251, 257-258 (1976), cert. den. 429 U.S. 826 (1976). See County of Middlesex v. Gevyn Constr. Corp. 450 F.2d 53, 55 (1971). This disposition is particularly appropriate here because the plaintiff's brief does no more than cite the two sections of the building code without any attempt at analysis. See Mass.R.A.P. 16(a) (4), as amended effective February 24,

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1975, 367 Mass. 921 ; Gelinas v. New England Power Co. 359 Mass. 119 , 126-127 (1971).

However, since the majority opinion casts doubt on the authority of a zoning appeals board and the committee to enforce building requirements under G. L. c. 40B, Sections 20-23, sometimes called the Anti-Snob Zoning Act, we deem it necessary to state our views:

We see nothing in the State Building Code or the enabling legislation (see fn. 2) -- and nothing has been suggested -- which changed the powers of a local building inspector to enforce building requirements as such powers existed prior to the enabling legislation. And adoption, after the Anti-Snob Zoning Act, of provisions which existed before its adoption does not affect that statute. See Opinion of the Justices, 361 Mass. 897 , 899 (1972). "The revision of statutes already existing is to be interpreted as a continuation of the earlier provisions, unless there is a clear indication of a legislative intent to change the meaning [citations omitted]." Longyear v. Commissioner of Corps. & Taxn. 265 Mass. 585 , 588 (1929). The general constraints added by St. 1972, c. 802, on the building inspector to enforce a uniform State building code rather than a local code (see G. L. c. 143, Sections 3 and 3A) subject to supervision by a State inspector (G. L. c. 143, Section 3A; G. L. c. 22, Section 4A) are not inconsistent with the conditions in the order of the committee (see fn. 1). Condition no. 1 of the order requires construction in accordance with the State Building Code and condition no. 3 is confined to "disagreement[s] between the builder and local officials" (emphasis supplied); it does not purport to affect the powers of State officials.

We do not infer from the enactment of the State Building Code, subsequent to the Anti-Snob Zoning Act, that the entire subject matter of building requirements has been withdrawn from the authority given a local zoning board of appeals under G. L. c. 40B, Section 21, to issue a comprehensive permit (which authority is also given to the committee, Board of Appeals of Hanover v. Housing Appeals Comm.

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363 Mass. 339 , 355 [1973]), so that in effect the words "building inspector" have been excised from the definition of "Local Board" in G. L. c. 40B, Section 20, and the third sentence of G. L. c. 40B, Section 21, has been repealed pro tanto. [Note Dissent3]

It rather seems to us that, despite the uniformities imposed by the State Building Code on the traditionally local building requirements, they are still "local requirements" within the Hanover case (at 354-355) to the extent that they are -- apart from the Anti-Snob Zoning Act -- administered by local building inspectors as well as to the extent that -- under the Anti-Snob Zoning Act -- such administration has been conferred upon local zoning boards or (in default of proper administration by a zoning board) upon the committee.

Our conclusion that the State Building Code and the statutory provisions for enforcement by local building inspectors do not oust the committee of jurisdiction is buttressed by the way the Hanover case dealt with sewage disposal controlled by the State Sanitary Code (see G. L. c. 111, Section 127A). Though the local board of health is given authority by that statute to enforce the State Sanitary Code (in addition to local requirements) the Hanover case (at 381, 382-383) permitted the Housing Appeals Committee to override the rejection by local officials (in that case the zoning board of appeals) of drainage and sewage disposal plans. It specifically upheld the condition imposed by the Housing Appeals Committee that "proposed provisions for drainage and sewage disposal have received approval from the appropriate state authorities" (the Hanover case, at 372-373, fn. 22, condition no. 1 for the town of Hanover). Compare condition no. 1 of the

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committee's order in this case (fn. 1). See Board of Appeals of Maynard v. Housing Appeals Comm. 370 Mass. 64 , 68-69 (1976).

If, as we maintain, the comprehensive permit, which the committee has ordered the board to issue, validly includes a building permit, condition no. 3 is merely ancillary to the administration of that building permit. The committee recognized in its decision that the board as a practical matter would be obliged to delegate the supervision of compliance to various local inspectors. [Note Dissent4] And this is the point to the first sentence in condition no. 3: "Compliance inspections shall be carried out by local officials in the usual manner." Where a comprehensive permit has been issued in the first instance by a zoning appeals board under G. L. c. 40B, Section 21, any disputes between the builder and local officials to whom the board has delegated the task of compliance supervision would be settled by the board. In this case, where the board has been recalcitrant and the committee was obliged to order the issuance of a comprehensive permit, the committee has decided to take the resolution of such disputes from the board; but instead of exercising this power directly as the surrogate of the board (see the Hanover case, at 355) it has lodged this power to settle local disputes in the Department of Community Affairs, apparently in its construction division. [Note Dissent5] In this context the certification in condition no. 3

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does nothing more than bind the committee and the applicant.

Our view that the Anti-Snob Zoning Act has continued vitality in the area of building requirements need not impinge on the power of State officials to exercise their statutory authority to enforce the State Building Code at the behest of the building inspector or of anyone else for that matter. Nor need we decide whether the building inspector, who is not a party to this action, may become a person "aggrieved" under Section 126.1 (see fn. 2), and G. L. c. 23B, Section 23, inserted by St. 1972, c. 802, Section 1 (see fn. 4 of majority opinion), by the future action of the committee (which may indeed, by virtue of the Anti-Snob Zoning Act, be, in a limited way, a "state . . . agency charged with the administration or enforcement of the state building code").