HELEN STEVENS COOLIDGE & others vs. PLANNING BOARD of NORTH ANDOVER & others.

WHITTEMORE, J. The plaintiffs, by their appeal, present for review a decree in the Superior Court adjudging valid the sections of the zoning by-law of the town of North Andover which permit motels in any zoning district [Note p648-1] but only after a public hearing by the planning board with due notice and "only after site plan review [against general and specific by-law requirements] and approval by the

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Planning Board endorsed in writing on the site plan with or without conditions." The defendants are the town, the building inspector, the members of the planning board, and the applicant for the motel permit and his wife, owners of the subject site.

The defendants contend that the by-law vested in the planning board only administrative supervision. According to this contention, as we understand it, there was a delegation to the planning board of nothing more than a portion of the power usually given to the building inspector or other enforcing officer. We disagree. The by-law in Section 4.54 plainly gives the planning board power to exercise its judgment as to whether a motel may be built or operated on a particular lot. [Note p649-1] The following section (4.55), by contrast, states precise requirements of lot size, land coverage, yard space and building design of the kind with which an administrative officer under most zoning laws is regularly concerned. The discretionary power set forth in Section 4.54 is emphasized by the provision for imposing conditions. [Note p649-2]

It is apparent that the by-law provides that the permit for a motel is to be obtained from a board to which the town has purported to delegate a part of the power to zone under G. L. c. 40A, Sections 2 and 3, and as a means of assuring compliance with decisions made in the exercise of that

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power. The specifications of purposes of zoning regulations and restrictions in Section 3 of the zoning statute are significantly similar to the general specifications of Section 4.54 of the North Andover zoning by-law.

The by-law does specify some criteria which would be relevant in the exercise by the planning board of its statutory power over the subdivision of land under G. L. c. 41, Sections 81K-81GG, but plainly its enactment was not for the purpose of permitting an exercise of that power. See G. L. c. 41, Section 81Q.

The zoning statute has, with precision, set out the extent to which the exercise of the zoning power may be delegated by the municipality. G. L. c. 40A, Section 4 (exceptions); Section 15 (variances). Section 4, after stating that such "exceptions shall be in harmony with the general purpose and intent of the ordinance or by-law and may be subject to general or specific rules therein contained," provides that "The board of appeals established under section fourteen . . . or the city council . . . or the selectmen . . . as such ordinance or by-law may provide, may, in appropriate cases and subject to appropriate conditions and safeguards, grant to an applicant a special permit . . . in accordance with such an exception. Before granting such . . . [there shall be] a public hearing thereon . . .." The variance power is given only to the board of appeals. G. L. c. 40A, Section 15. We have recently held that there is no room for an implication of zoning power in boards other than those specified in the statute. Colabufalo v. Board of Appeal of Newton, 336 Mass. 213.

The power purported to be given to the planning board in the North Andover zoning by-law was in substance encompassed within the power to grant exceptions under c. 40A, Section 4, so that if it had been granted to the board of appeals or the selectmen it would have been a valid delegation. It is insignificant that the provision for motels is not specified in terms as an exception. The by-law requires a permit and provides, in effect, that the granting of the permit is "subject to general or specific rules . . . contained" in the provisions for the permit. The words just quoted are from Section 4,

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in respect of exceptions. The by-law, in the aspect now being discussed, is not significantly distinguishable from the ordinance which was before us in Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, which we dealt with as an exception. The Gloucester ordinance permitted motels in any single residence district, but only upon obtaining a permit from the board of appeals which might impose such conditions as the board deemed necessary for the protection of the public after considering the effects upon the neighborhood and the city.

The defendants rely upon Building Commr. of Medford v. C. & H. Co. 319 Mass. 273, where we held that a zoning ordinance was valid which provided that the building commissioner might not issue a permit for a dump until the board of aldermen had approved the petition. There was also a requirement for a permit from the board of health. We noted (p. 277) that under the ordinance the board of aldermen might prescribe conditions and terms and that "no permit is to be granted that would result in substantial injury." It is apparent (pp. 281, 282, 286) that we dealt with the power in the board of aldermen as a zoning power. The case, however, even before the insertion of G. L. c. 40A, Section 4 (by St. 1954, c. 368, Section 2), was authority not for a delegation of power to subordinate boards in the discretion of the municipality but rather for a reservation of power in the legislative branch of the municipality. We said (p. 281), after nothing that the city might have provided for the granting of an exception by the board of appeals, that it was not bound so to deal with the subject matter and that "The zoning statutes, G. L. (Ter. Ed.) c. 40, Sections 25-30A, inclusive, do not in terms forbid the reservation by the legislative branch of the city [emphasis supplied] of the power to approve permits for dumps or for any of the other objectionable uses . . .." In any event, the 1954 amendment has, as stated, occupied the filed. In doing so, it has given an express statutory basis for the implied authority in the city council which we upheld in the Medford case, and has added a somewhat analogous option for towns.

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In view of the zoning statute and our construction of it, it is irrelevant that the planning board might otherwise be deemed an appropriate agency to determine in the general interest how a motel should be laid out on a particular plot of land.

The provision of the by-law allowing motels necessarily falls with the invalid proviso which is an essential part of it. It follows that the decree below must declare that sections 4.5 to 4.55 of the by-law are invalid because of unauthorized delegation of zoning power to the planning board and that the permits for a motel granted to the Filettis were invalid.

The decree of the Superior Court is reversed and a decree is to be entered in the Superior Court in accordance with this opinion.

So ordered.