Armstrong, J.
The board of appeals of North Andover brings this appeal from a judgment of the Superior [677] 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 [678] 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 or[679] der 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 [680] 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) [681] 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).
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Armstrong, J.
The board of appeals of North Andover brings this appeal from a judgment of the Superior [677] 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 [678] 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 or[679] der 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 [680] 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) [681] 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).
“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.”