7 Mass. App. Ct. 876

March 9, 1979

This is an appeal by the board from a judgment entered in the Superior Court which removed a condition imposed by the board on a special permit it had granted to the defendant. We reverse. In 1973 the defendant sought a special permit, pursuant to Section II, 2B(4), of the town's by-laws, allowing it to use two parcels within a tract of land in Dedham as a cemetery. The permit was granted on condition that the defendant would not use Ware Street, a private way, for access to the cemetery. See G. L. c. 40A, Section 4, as in effect prior to St. 1975, c. 808, Section 3. In 1974 the defendant requested the board to remove the condition. That request was denied. On appeal to the Superior Court pursuant to G. L. c. 40A, Section 21, as in effect prior to St. 1975, c. 808, Section 3, the judge heard evidence and ruled that since there was no direct vehicular access to the two parcels, the provision in the board's original decision to deny the defendant access from Ware Street was unreasonable. Contrast Shoppers' World, Inc. v. Beacon Terrace Realty, Inc., 353 Mass. 63 , 71 (1967). The judge then "amended" the special permit by "striking out that portion of the decision which provides `that access to this property be from Boston only with no access provided from Ware Street.'" As neither party seeks, nor, for all that appears, desires to have the special permit annulled (compare Ploski v. Zoning Bd. of Appeals of Somerset, ante 874, 875 [1979]), we go directly to the crucial issue which the parties have argued on appeal -- whether the judge could annul the condition of the special permit. Although G. L. c. 40A, Section 21, provides that a judge may "make such other judgment as justice and equity may require," these words do not permit the court to invade the whole area of administrative discretion. "We construe [this phrase] as [merely] requiring a decree according to law." Pendergast v. Board of Appeals of Barnstable, 331 Mass. 555 , 558 (1954). In doing so the judge may not substitute his judgment for that of the board. Caruso v. Pastan, 1 Mass. App. Ct. 28 , 30 (1973). See generally Pendergast v. Board of Appeals of Barnstable, supra at 556-559. Consequently, the judge's authority "to fashion judgments that will do justice and equity is very limited. [The language in question] does not give him the power to order modifications of a [permit]. . . ." Strand v. Planning Bd. of Sudbury, 5 Mass. App. Ct. 18 , 22 (1977). Modifications and changes should be analyzed and approved by the board, which is better equipped than a court to consider such matters. Cf. Pendergast v. Board of Appeals of Barnstable, supra at 557-558. It is for the board alone to determine whether a permit should be granted with or without the condition. Gulf Oil Corp. v. Board of Appeals of Framingham, 355 Mass. 275 , 277-278 (1969). Copley v. Board of Appeals of Canton, 1 Mass. App. Ct. 821 (1973). See also Kiss v. Board of Appeals of Longmeadow, 371 Mass. 147 , 158 (1976). Accordingly, the judgment is reversed, and a new judgment is to be entered stating that the decision of the board did not exceed its authority and that no modification of its decision is required. Costs of appeal are not to be awarded to any party.

So ordered.