Bd. of Appeals of N. Andover v. HOUSING APPEALS , 4 Mass. App. Ct. 676 ( 1976 )

Armstrong, J.

The board of appeals of North Andover brings this appeal from a judgment of the Superior Court which affirmed a decision by the Housing Appeals Committee ordering the board (under G. L. c. 40B, § 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 it² 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 part³ 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 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.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,⁵ both of which preceded the effective date⁶ 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 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.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 local building inspector, who is the designated enforcement officer of the code,⁸ on the other.

The Hanover case held that G. L. c. 40B, §§ 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 §§ 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) 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).

2 We refer particularly to its argument that the defendant Planning Office for Urban Affairs, Inc., is not a proper applicant for a comprehensive permit under G. L. c. 40B, § 21. The transcript shows that the board waived this contention before the Housing Appeals Committee.

3 The portion quoted in the text appears in the third “further” condition of the order of the Housing Appeals Committee. The context in which it appears is as follows:

“Said Comprehensive Permit shall be subject to the following further conditions:

“1. Construction shall comply with the provisions of the State Uniform Building Code as provided by St. 1972, C. 802, effective January 1, 1975.

“2. No construction shall commence until detailed construction plans and specifications, substantially in accordance with the preliminary plans submitted to the Housing Appeals Committee, shall have been approved by the Massachusetts Housing Finance Agency and until said Agency has granted a construction mortgage loan for the construction of the project.

“3. Compliance inspections shall be carried out by local officials in the usual manner. In 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 [emphasis supplied].”

4 General Laws c. 23B, § 23, inserted by St. 1972, c. 802, § 1, states in part: “There shall be in the department [of Community Affairs] a state building code appeals board.... Whoever is aggrieved by an interpretation, order, requirement, direction or failure to act by any ... person or state or local agency charged with the administration or enforcement of the state building code . .. may ... appeal... to the board. ... The board may establish a local board of appeal in any city or town or a regional board of appeal for more than two or more cities or towns.. .. The board may require as a condition precedent to appeal to the board that said appeal be first heard by such local or regional board of appeals.” Section 126.1 of the State Building Code states in part: “Whoever is aggrieved by an interpretation, order, requirement, direction or failure to act under the Basic Code by any agency or official of a city, town or region charged with the administration or enforcement of the Basic Code or any of its rules and regulations, excepting any specialized codes, may appeal directly to the State Building Code Appeals Board or may appeal first to a local or regional appeals board and then to the State Building Code Appeals Board....”

5 See fn. 22, 363 Mass. at 373 (condition no. 4 in the Hanover appeal) and 374 (condition no. 8 in the Concord appeal).

6 January 1, 1975. St. 1972, c. 802, § 67.

7 The passage of the decision which immediately precedes the sentence set out in the text is:

“Mr. Dingman ... pointed out to the parties ... that the concern about whether the local building code or law or the BOCA code would be used in the proposed construction was academic since the Commonwealth had adopted a Uniform State Building Code effective January 1, 1975. The Appellant’s counsel expressed great concern that any comprehensive permit which might be ordered by the board of appeals could delegate to local building officials the inspection powers to assure compliance with the building code, be it BOCA or the State Building Code. Mr. Gorman, Chairman of the Housing Appeals Committee, set forth the basis of the policy of the Committee concerning inspection by local officials and resolution of possible disputes arising from the inspections needed for compliance with the code in the construction process .... It would be unreasonable to expect that the local board of appeals would have the expertise or the time to conduct compliance inspections under the comprehensive permit issued by the board of appeals. The most logical way to implement the necessary inspection process is the delegation to the local inspection agencies, i.e., building inspector, public works inspector, etc. of the duty to make such inspections as are necessary to assure adequate construction and development of the site. Where a comprehensive permit is granted by vacating the denial of the local board of appeals and overruling their decision in action by the [Housing Appeals Committee]; the possibility of the remnants of local adversary relationship existing is something which must be considered. Therefore, disputes between the local building inspector and the developer are best not handled on the local level, but should be decided by an unbiased arbitrator. In our previous cases we have always provided that such disputes will be handled and disposed of by the state agency best equipped to respond to such matters, the Department of Community Affairs.”

8 General Laws c. 143, §§ 3 and 3A. In addition, section 108.1 of the code provides that the “inspector of buildings and the local inspector shall enforce all the provisions of the Basic Code and any other applicable state statutes, rules and regulations, or ordinances and by-laws, and act on any question relative to the mode or manner of construction, and the materials to be used in the construction ... of all buildings and structures ... except as may otherwise be specifically provided for by statutory requirements or as herein provided.”

9 There was a colloquy during the hearing in which the chairman of the Housing Appeals Committee opined that a local zoning board of appeals, having been overruled and ordered to issue a comprehensive permit, is apt to remain hostile to the project; the town counsel for North Andover responded that an appeal of the type we are concerned with would not be heard by the zoning board of appeals but by a local building code appeals board newly appointed under the authority of § 126.81 of the State Building Code, § 126.82 of which provides that “[e]ach member of a local board of appeals established under section 126.81 shall have had at least five (5) years experience in the construction, alteration, repair and maintenance of building and building codes. At least one (1) member shall be a registered structural or civil professional engineer and one (1) member a licensed professional architect.”