Bd. of Appeals of N. Andover v. HOUSING APPEALS

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 (§ 108.1 and § 126.1) of the State Building Code2 which the zoning *682board 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 § 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, *6831975, 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, §§ 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 them a local code (see G. L. c. 143, §§ 3 and 3A) subject to supervision by a State inspector (G. L. c. 143, § 3A; G. L. c. 22, § 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, § 21, to issue a comprehensive permit (which authority is also given to the committee, Board of Appeals of Hanover v. Housing Appeals Comm. *684363 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, § 20, and the third sentence of G. L. c. 40B, § 21, has been repealed pro tanto.3

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, § 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 *685committee’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.4 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, § 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.5 In this context the certification in condition no. 3 *686does 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 § 126.1 (see fn. 2), and G. L. c. 23B, § 23, inserted by St. 1972, c. 802, § 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”).

The order of the Housing Appeals Committee provides:

“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.”

The State Building Code was adopted pursuant to G. L. c. 23B, § 16 (inserted by St. 1972, c. 802, § 1), and became effective on January 1, 1975. St. 1972, c. 802, § 67.

The board’s brief quotes the following from the State Building Code:

“108.1 THE BUILDING OFFICIAL: The building commissioner or inspector of buildings and the local inspector [see G. L. c. 143, § 1, as amended through St. 1974, c. 541, § 11, defining ‘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, reconstruction, alter*682ation, repair, demolition, removal, installation of equipment, and the location use, occupancy, and maintenance of all buildings and structures, including any building or structure owned by any authority, except as may otherwise be specifically provided for by statutory requirements or as herein provided.”
“126.1 STATE BUILDING CODE APPEALS BOARD: Whoever is aggrieved by an interpretation, order, requirement, direction or failure to act under the Basic Code by any agency or official of the city, town or region, or agency or official of the State charged with the administration or enforcement of the Basic Code or any of its rules or regulations, excepting any specialized codes, may appeal directly to the State Building Code Appeals Board....”

“The board of appeals shall request the appearance at said hearing of such representatives of said local boards as are deemed necessary or helpful in making its decision upon such application and shall have the same power to issue permits or approvals as any local board or official who would otherwise act with respect to such application, including but not limited to the power to attach to said permit or approval conditions and requirements with respect to height, site plan, size or shape, or building materials as are consistent with the terms of this section” (emphasis supplied).

The committee’s decision states:

“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.”

At the hearing the chairman of the committee stated:

“The reason we include the General Provision [condition no. 3] ... in the case of disputes over interpretations and so forth of the Plans [is] that those disputes in the last analysis if they can’t be settled between the parties are settled by the Department of Community Affairs Construction Department, the reason for that provision is that we recognize that where the local Board of Appeals has given a permit there *686is less of an adversary relationship between the Board of Appeals and the Applicant, and where the Permit has been granted by vacating and/or overruling the Board of Appeals by the Housing Appeals Committee, the possibility of remnants of such adversary relationship existing is something that has to be considered. Therefore, disputes like that are best not decided on the local level, but by an unbiased Arbitrator, and that presumably is the Department of Community Affairs.”