Petitioner hired Jose Castro on the basis of documents appearing to verify his authorization to work in the United States, but laid him and others off after they supported a union-organizing campaign at petitioner's plant. Respondent National Labor Relations Board (Board) found that the layoffs violated the National Labor Relations Act (NLRA) and ordered backpay and other relief. At a compliance hearing before an Administrative Law Judge (ALJ) to determine the amount of backpay, Castro testified, inter alia, that he was born in Mexico, that he had never been legally admitted to, or authorized to work in, this country, and that he gained employment with petitioner only after tendering a birth certificate belonging to a friend born in Texas. Based on this testimony, the ALJ found that the Board was precluded from awarding Castro relief by Sure-Tan, Inc. v. NLRB, 467 U. S. 883, and by the Immigration Reform and Control Act of 1986 (IRCA), which makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. The Board reversed with respect to backpay, citing its precedent holding that the most effective way to further the immigration policies embodied in IRCA is to provide the NLRA's protections and remedies to undocumented workers in the same manner as to other employees. The Court of Appeals denied review and enforced the Board's order.
Held: Federal immigration policy, as expressed by Congress in IRCA, foreclosed the Board from awarding backpay to an undocumented alien who has never been legally authorized to work in the United States. Pp. 4-14.
(a) This Court has consistently set aside the Board's backpay awards to employees found guilty of serious illegal conduct in connection with their employment. See, e.g., Southern S. S. Co. v. NLRB, 316 U. S. 31, 40-47. Since Southern S. S. Co., the Court has never deferred to the Board's remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA. See, e.g., Sure-Tan, supra, in which the Court set aside an award of reinstatement and backpay to undocumented alien workers who were not authorized to reenter this country following their voluntary departure when their employers unlawfully reported them to the Immigration and Naturalization Service in retaliation for union activity. Among other things, the Court there found that the Board's authority with respect to the selection of remedies was limited by federal immigration policy as expressed in the Immigration and Nationality Act (INA), and held that, in order to avoid a potential conflict with the INA with respect to backpay, the employees must be deemed "unavailable" for work (and the accrual of backpay therefore tolled) during any period when they were not "lawfully entitled to be present and employed in the United States." 510 U. S. 317, 325, distinguished. Pp. 4-8.
(b) As a matter of plain language, Sure-Tan's express limitation of backpay to documented alien workers forecloses the backpay award to Castro, who was never lawfully entitled to be present or employed in the United States. But the Court need not resolve whether, read in context, Sure-Tan's limitation applies only to aliens who left the United States and thus cannot claim backpay without lawful reentry. The question presented here is better analyzed through a wider lens, focusing on a legal landscape now significantly changed. The Southern S. S. Co. line of cases established that where the Board's chosen remedy trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may have to yield. Whether or not this was the situation at the time of Sure-Tan, it is precisely the situation today. Two years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme that made combating the employment of illegal aliens in the United States central to the policy of immigration law. INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183, 194, and n. 8. Among other things, IRCA established an extensive "employment verification system," 8 U. S. C. §1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, §1324a(h)(3). It also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents, §1324c(a), an offense that Castro committed when obtaining employment with petitioner. Thus, allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board's discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award. Lack of authority to award backpay does not mean that the employer gets off scot free. The Board here has already imposed other significant sanctions against petitioner, including orders that it cease and desist its NLRA violations and conspicuously post a notice detailing employees' rights and its prior unfair practices, which are sufficient to effectuate national labor policy regardless of whether backpay accompanies them, Sure-Tan, supra, at 904, and n. 13. Pp. 8-14.
237 F. 3d 639, reversed.
Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.
Petitioner Hoffman Plastic Compounds, Inc. (petitioner or Hoffman), custom-formulates chemical compounds for businesses that manufacture pharmaceutical, construction, and household products. In May 1988, petitioner hired Jose Castro to operate various blending machines that "mix and cook" the particular formulas per customer order. Before being hired for this position, Castro presented documents that appeared to verify his authorization to work in the United States. In December 1988, the United Rubber, Cork, Linoleum, and Plastic Workers of America, AFL-CIO, began a union-organizing campaign at petitioner's production plant. Castro and several other employees supported the organizing campaign and distributed authorization cards to co-workers. In January 1989, Hoffman laid off Castro and other employees engaged in these organizing activities.
Three years later, in January 1992, respondent Board found that Hoffman unlawfully selected four employees, including Castro, for layoff "in order to rid itself of known union supporters" in violation of §8(a)(3) of the National Labor Relations Act (NLRA).1 306 N. L. R. B. 100. To remedy this violation, the Board ordered that Hoffman (1) cease and desist from further violations of the NLRA, (2) post a detailed notice to its employees regarding the remedial order, and (3) offer reinstatement and backpay to the four affected employees. Id., at 107-108. Hoffman entered into a stipulation with the Board's General Counsel and agreed to abide by the Board's order.
In June 1993, the parties proceeded to a compliance hearing before an Administrative Law Judge (ALJ) to determine the amount of backpay owed to each discriminatee. On the final day of the hearing, Castro testified that he was born in Mexico and that he had never been legally admitted to, or authorized to work in, the United States. 314 N. L. R. B. 683, 685 (1994). He admitted gaining employment with Hoffman only after tendering a birth certificate belonging to a friend who was born in Texas. Ibid. He also admitted that he used this birth certificate to fraudulently obtain a California driver's license and a Social Security card, and to fraudulently obtain employment following his layoff by Hoffman. Ibid. Neither Castro nor the Board's General Counsel offered any evidence that Castro had applied or intended to apply for legal authorization to work in the United States. Ibid. Based on this testimony, the ALJ found the Board precluded from awarding Castro backpay or reinstatement as such relief would be contrary to Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984), and in conflict with IRCA, which makes it unlawful for employers knowingly to hire undocumented workers or for employees to use fraudulent documents to establish employment eligibility. 314 N. L. R. B., at 685-686.
In September 1998, four years after the ALJ's decision, and seven years after Castro was fired, the Board reversed with respect to backpay. 326 N. L. R. B. 1060. Citing its earlier decision in A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408 (1995), the Board determined that "the most effective way to accommodate and further the immigration policies embodied in [IRCA] is to provide the protections and remedies of the [NLRA] to undocumented workers in the same manner as to other employees." 326 N. L. R. B., at 1060. The Board thus found that Castro was entitled to $66,951 of backpay, plus interest. Id., at 1062. It calculated this backpay award from the date of Castro's termination to the date Hoffman first learned of Castro's undocumented status, a period of 31/2 years. Id., at 1061. A dissenting Board member would have affirmed the ALJ and denied Castro all backpay. Id., at 1062 (opinion of Hurtgen).
"We are unable to conclude that Congress intended to compel employers to retain persons in their employ regardless of their unlawful conduct,--to invest those who go on strike with an immunity from discharge for acts of trespass or violence against the employer's property, which they would not have enjoyed had they remained at work." 306 U. S., at 255.
"It is sufficient for this case to observe that the Board has not been commissioned to effectuate the policies of the Labor Relations Act so single-mindedly that it may wholly ignore other and equally important [c]ongressional objectives." 316 U. S., at 47.
Although the Board had argued that the employees' conduct did not in fact violate the federal mutiny statute, we rejected this view, finding the Board's interpretation of a statute so far removed from its expertise entitled no deference from this Court. Id., at 40-46. Since Southern S. S. Co., we have accordingly never deferred to the Board's remedial preferences where such preferences potentially trench upon federal statutes and policies unrelated to the NLRA. Thus, we have precluded the Board from enforcing orders found in conflict with the Bankruptcy Code, see Bildisco, supra, at 527-534, 529, n. 9 ("While the Board's interpretation of the NLRA should be given some deference, the proposition that the Board's interpretation of statutes outside its expertise is likewise to be deferred to is novel"), rejected claims that federal antitrust policy should defer to the NLRA, Connell Constr. Co. v. Plumbers, 421 U. S. 616, 626 (1975), and precluded the Board from selecting remedies pursuant to its own interpretation of the Interstate Commerce Act, Carpenters v. NLRB, 357 U. S. 93, 108-110 (1958).
Our decision in Sure-Tan followed this line of cases and set aside an award closely analogous to the award challenged here. There we confronted for the first time a potential conflict between the NLRA and federal immigration policy, as then expressed in the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq. Two companies had unlawfully reported alien-employees to the INS in retaliation for union activity. Rather than face INS sanction, the employees voluntarily departed to Mexico. The Board investigated and found the companies acted in violation of §§8(a)(1) and (3) of the NLRA. The Board's ensuing order directed the companies to reinstate the affected workers and pay them six months' backpay.
We affirmed the Board's determination that the NLRA applied to undocumented workers, reasoning that the immigration laws "as presently written" expressed only a " `peripheral concern' " with the employment of illegal aliens. 424 U. S. 351, 360 (1976)). "For whatever reason," Congress had not "made it a separate criminal offense" for employers to hire an illegal alien, or for an illegal alien "to accept employment after entering this country illegally." Sure-Tan, supra, at 892-893. Therefore, we found "no reason to conclude that application of the NLRA to employment practices affecting such aliens would necessarily conflict with the terms of the INA." 467 U. S., at 893.
With respect to the Board's selection of remedies, however, we found its authority limited by federal immigration policy. See id., at 903 ("In devising remedies for unfair labor practices, the Board is obliged to take into account another `equally important Congressional objective' ") (quoting Southern S. S. Co., supra, at 47)). For example, the Board was prohibited from effectively rewarding a violation of the immigration laws by reinstating workers not authorized to reenter the United States. Sure-Tan, 467 U. S., at 903. Thus, to avoid "a potential conflict with the INA," the Board's reinstatement order had to be conditioned upon proof of "the employees' legal reentry." Ibid. "Similarly," with respect to backpay, we stated: "[T]he employees must be deemed `unavailable' for work (and the accrual of backpay therefore tolled) during any period when they were not lawfully entitled to be present and employed in the United States." Ibid. "In light of the practical workings of the immigration laws," such remedial limitations were appropriate even if they led to "[t]he probable unavailability of the [NLRA's] more effective remedies." Id., at 904.
The Board cites our decision in ABF Freight System, Inc. v. NLRB, 510 U. S. 317 (1994), as authority for awarding backpay to employees who violate federal laws. In ABF Freight, we held that an employee's false testimony at a compliance proceeding did not require the Board to deny reinstatement with backpay. The question presented was "a narrow one," id., at 322, limited to whether the Board was obliged to "adopt a rigid rule" that employees who testify falsely under oath automatically forfeit NLRA remedies, id., at 325. There are significant differences between that case and this. First, we expressly did not address whether the Board could award backpay to an employee who engaged in "serious misconduct" unrelated to internal Board proceedings, id., at 322, n. 7, such as threatening to kill a supervisor, ibid. (citing Precision Window Mfg. v. NLRB, 963 F. 2d 1105, 1110 (CA8 1992)), or stealing from an employer, 371 U. S. 156, 172 (1962). Third, the employee misconduct at issue, though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal under explicit provisions of federal law. See, e.g., 237 F. 3d, at 657, n. 2 (Sentelle, J., dissenting) ("The perjury statute provides for criminal sanctions; it does not forbid a present or potential perjurer from obtaining a job") (distinguishing ABF Freight)). For these reasons, we believe the present case is controlled by the Southern S. S. Co. line of cases, rather than by ABF Freight.
It is against this decisional background that we turn to the question presented here. The parties and the lower courts focus much of their attention on Sure-Tan, particularly its express limitation of backpay to aliens "lawfully entitled to be present and employed in the United States." 467 U. S., at 903. All agree that as a matter of plain language, this limitation forecloses the award of backpay to Castro. Castro was never lawfully entitled to be present or employed in the United States, and thus, under the plain language of Sure-Tan, he has no right to claim backpay. The Board takes the view, however, that read in context, this limitation applies only to aliens who left the United States and thus cannot claim backpay without lawful reentry. Brief for Respondent 17-24. The Court of Appeals agreed with this view. 237 F. 3d, at 642-646. Another Court of Appeals, however, agrees with Hoffman, and concludes that Sure-Tan simply meant what it said, i.e., that any alien who is "not lawfully entitled to be present and employed in the United States" cannot claim backpay. See Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d 1115 1118-1121 (CA7 1992); Brief for Petitioner 7-20. We need not resolve this controversy. For whether isolated sentences from Sure-Tan definitively control, or count merely as persuasive dicta in support of petitioner, we think the question presented here better analyzed through a wider lens, focused as it must be on a legal landscape now significantly changed.
The Southern S. S. Co. line of cases established that where the Board's chosen remedy trenches upon a federal statute or policy outside the Board's competence to administer, the Board's remedy may be required to yield. Whether or not this was the situation at the time of Sure-Tan, it is precisely the situation today. In 1986, two years after Sure-Tan, Congress enacted IRCA, a comprehensive scheme prohibiting the employment of illegal aliens in the United States. §101(a)(1), 100 Stat. 3360, 8 U. S. C. §1324a. As we have previously noted, IRCA "forcefully" made combating the employment of illegal aliens central to "[t]he policy of immigration law." INS v. National Center for Immigrants' Rights, Inc., 502 U. S. 183, 194, and n. 8 (1991). It did so by establishing an extensive "employment verification system," §1324a(a)(1), designed to deny employment to aliens who (a) are not lawfully present in the United States, or (b) are not lawfully authorized to work in the United States, §1324a(h)(3).3 This verification system is critical to the IRCA regime. To enforce it, IRCA mandates that employers verify the identity and eligibility of all new hires by examining specified documents before they begin work. §1324a(b). If an alien applicant is unable to present the required documentation, the unauthorized alien cannot be hired. §1324a(a)(1).
Similarly, if an employer unknowingly hires an unauthorized alien, or if the alien becomes unauthorized while employed, the employer is compelled to discharge the worker upon discovery of the worker's undocumented status. §1324a(a)(2). Employers who violate IRCA are punished by civil fines, §1324a(e)(4)(A), and may be subject to criminal prosecution, §1324a(f)(1). IRCA also makes it a crime for an unauthorized alien to subvert the employer verification system by tendering fraudulent documents. §1324c(a). It thus prohibits aliens from using or attempting to use "any forged, counterfeit, altered, or falsely made document" or "any document lawfully issued to or with respect to a person other than the possessor" for purposes of obtaining employment in the United States. §§1324c(a)(1)-(3). Aliens who use or attempt to use such documents are subject to fines and criminal prosecution. 18 U. S. C. §1546(b). There is no dispute that Castro's use of false documents to obtain employment with Hoffman violated these provisions.
Under the IRCA regime, it is impossible for an undocumented alien to obtain employment in the United States without some party directly contravening explicit congressional policies. Either the undocumented alien tenders fraudulent identification, which subverts the cornerstone of IRCA's enforcement mechanism, or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations. The Board asks that we overlook this fact and allow it to award backpay to an illegal alien for years of work not performed, for wages that could not lawfully have been earned, and for a job obtained in the first instance by a criminal fraud. We find, however, that awarding backpay to illegal aliens runs counter to policies underlying IRCA, policies the Board has no authority to enforce or administer. Therefore, as we have consistently held in like circumstances, the award lies beyond the bounds of the Board's remedial discretion.
The Board contends that awarding limited backpay to Castro "reasonably accommodates" IRCA, because, in the Board's view, such an award is not "inconsistent" with IRCA. Brief for Respondent 29-42. The Board argues that because the backpay period was closed as of the date Hoffman learned of Castro's illegal status, Hoffman could have employed Castro during the backpay period without violating IRCA. Id., at 37. The Board further argues that while IRCA criminalized the misuse of documents, "it did not make violators ineligible for back pay awards or other compensation flowing from employment secured by the misuse of such documents." Id., at 38. This latter statement, of course, proves little: The mutiny statute in Southern S. S. Co., and the INA in Sure-Tan, were likewise understandably silent with respect to such things as backpay awards under the NLRA. What matters here, and what sinks both of the Board's claims, is that Congress has expressly made it criminally punishable for an alien to obtain employment with false documents. There is no reason to think that Congress nonetheless intended to permit backpay where but for an employer's unfair labor practices, an alien-employee would have remained in the United States illegally, and continued to work illegally, all the while successfully evading apprehension by immigration authorities.4 Far from "accommodating" IRCA, the Board's position, recognizing employer misconduct but discounting the misconduct of illegal alien employees, subverts it.
We therefore conclude that allowing the Board to award backpay to illegal aliens would unduly trench upon explicit statutory prohibitions critical to federal immigration policy, as expressed in IRCA. It would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations. However broad the Board's discretion to fashion remedies when dealing only with the NLRA, it is not so unbounded as to authorize this sort of an award.
I cannot agree that the backpay award before us "runs counter to," or "trenches upon," national immigration policy. Ante, at 9, 10 (citing the Immigration Reform and Control Act of 1986 (IRCA). As all the relevant agencies (including the Department of Justice) have told us, the National Labor Relations Board's limited backpay order will not interfere with the implementation of immigration policy. Rather, it reasonably helps to deter unlawful activity that both labor laws and immigration laws seek to prevent. Consequently, the order is lawful. See ante, at 4 (recognizing "broad" scope of Board's remedial authority).
The Court does not deny that the employer in this case dismissed an employee for trying to organize a union--a crude and obvious violation of the labor laws. See 29 U. S. C. §158(a)(3) (1994 ed.); NLRB v. Transportation Management Corp., 462 U. S. 393, 398 (1983). And it cannot deny that the Board has especially broad discretion in choosing an appropriate remedy for addressing such violations. NLRB v. Gissel Packing Co., 395 U. S. 575, 612, n. 32 (1969) (Board "draws on a fund of knowledge and expertise all its own, and its choice of remedy must therefore be given special respect by reviewing courts"). Nor can it deny that in such circumstances backpay awards serve critically important remedial purposes. NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U. S. 258, 263 (1969). Those purposes involve more than victim compensation; they also include deterrence, i.e., discouraging employers from violating the Nation's labor laws. See ante, at 13 (recognizing the deterrent purposes of the NLRA); Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 904, n. 13 (1984) (same).
Without the possibility of the deterrence that backpay provides, the Board can impose only future-oriented obligations upon law-violating employers--for it has no other weapons in its remedial arsenal. Ante, at 13. And in the absence of the backpay weapon, employers could conclude that they can violate the labor laws at least once with impunity. See A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408, 415, n. 38 (1995) (without potential backpay order employer might simply discharge employees who show interest in a union "secure in the knowledge" that only penalties were requirements "to cease and desist and post a notice"); cf. Golden State Bottling Co. v. NLRB, 414 U. S. 168, 185 (1973); cf. also EEOC v. Waffle House, Inc., 534 U. S. ___, ___ (2002) (slip op., at 16 n. 11) (backpay award provides important incentive to report illegal employer conduct); Albemarle Paper Co. v. Moody, 422 U. S. 405, 417-418 (1975) ("It is the reasonably certain prospect of a backpay award" that leads employers to "shun practices of dubious legality"). Hence the backpay remedy is necessary; it helps make labor law enforcement credible; it makes clear that violating the labor laws will not pay.
Where in the immigration laws can the Court find a "policy" that might warrant taking from the Board this critically important remedial power? Certainly not in any statutory language. The immigration statutes say that an employer may not knowingly employ an illegal alien, that an alien may not submit false documents, and that the employer must verify documentation. See 8 U. S. C. §§1324a(a)(1),1324a(b); 18 U. S. C. §1546(b)(1). They provide specific penalties, including criminal penalties, for violations. Ibid., 8 U. S. C. §§1324a(e)(4), 1324a(f)(1). But the statutes' language itself does not explicitly state how a violation is to effect the enforcement of other laws, such as the labor laws. What is to happen, for example, when an employer hires, or an alien works, in violation of these provisions? Must the alien forfeit all pay earned? May the employer ignore the labor laws? More to the point, may the employer violate those laws with impunity, at least once--secure in the knowledge that the Board cannot assess a monetary penalty? The immigration statutes' language simply does not say.
Nor can the Court comfortably rest its conclusion upon the immigration laws' purposes. For one thing, the general purpose of the immigration statute's employment prohibition is to diminish the attractive force of employment, which like a "magnet" pulls illegal immigrants towards the United States. H. R. Rep. No. 99-682, pt. 1, p. 45 (1986). To permit the Board to award backpay could not significantly increase the strength of this magnetic force, for so speculative a future possibility could not realistically influence an individual's decision to migrate illegally. See A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 410-415 (no significant influence from so speculative a factor); Patel v. Quality Inn South, 846 F. 2d 700, 704 (CA11 1988) (aliens enter the country "in the hope of getting a job," not gaining "the protection of our labor laws"); Peterson v. Neme, 222 Va. 477, 428, 281 S. E. 2d 869, 872 (1981) (same); Arteaga v. Literski, 83 Wis. 2d 128, 132, 265 N. W. 2d 148, 150 (1978) (same); H. R. Rep. No. 99-682, supra, at 45 (same).
To deny the Board the power to award backpay, however, might very well increase the strength of this magnetic force. That denial lowers the cost to the employer of an initial labor law violation (provided, of course, that the only victims are illegal aliens). It thereby increases the employer's incentive to find and to hire illegal-alien employees. Were the Board forbidden to assess backpay against a knowing employer--a circumstance not before us today, see 237 F. 3d 639, 648 (CADC 2001)--this perverse economic incentive, which runs directly contrary to the immigration statute's basic objective, would be obvious and serious. But even if limited to cases where the employer did not know of the employee's status, the incentive may prove significant--for, as the Board has told us, the Court's rule offers employers immunity in borderline cases, thereby encouraging them to take risks, i.e., to hire with a wink and a nod those potentially unlawful aliens whose unlawful employment (given the Court's views) ultimately will lower the costs of labor law violations. See Brief for Respondent 30-32; Tr. of Oral Arg. 41, 47; cf. also General Accounting Office, Garment Industry: Efforts to Address the Prevalence and Conditions of Sweatshops 8 (GAO/HEHS-95-29, Nov. 1994) (noting a higher incidence of labor violations in areas with large populations of undocumented aliens). The Court has recognized these considerations in stating that the labor laws must apply to illegal aliens in order to ensure that "there will be no advantage under the NLRA in preferring illegal aliens" and therefore there will be "fewer incentives for aliens themselves to enter." Sure-Tan, supra, at 893-894. The Court today accomplishes the precise opposite.
The immigration law's specific labor-law-related purposes also favor preservation, not elimination, of the Board's backpay powers. See A. P. R. A. Fuel Oil Buyers Group, Inc., supra, at 414 (immigration law seeks to combat the problem of aliens' willingness to "work in substandard conditions and for starvation wages"); cf. also Sure-Tan, 467 U. S., at 893 ("[E]nforcement of the NLRA ... is compatible with the policies" of the Immigration and Nationality Act). As I just mentioned and as this Court has held, the immigration law foresees application of the Nation's labor laws to protect "workers who are illegal immigrants." Id., at 891-893; H. R. Rep. No. 99-682, supra, at 58. And a policy of applying the labor laws must encompass a policy of enforcing the labor laws effectively. Otherwise, as Justice Kennedy once put the matter, "we would leave helpless the very persons who most need protection from exploitative employer practices." NLRB v. Apollo Tire Co., 604 F. 2d 1180, 1184 (CA9 1979) (concurring opinion). That presumably is why those in Congress who wrote the immigration statute stated explicitly and unequivocally that the immigration statute does not take from the Board any of its remedial authority. H. R. Rep. No. 99-682, supra, at 58 (IRCA does not "undermine or diminish in any way labor protections in existing law, or ... limit the powers of federal or state labor relations boards ... to remedy unfair practices committed against undocumented employees").
Neither does precedent help the Court. Indeed, in ABF Freight System, Inc. v. NLRB, 510 U. S. 317 (1994), this Court upheld an award of backpay to an unlawfully discharged employee guilty of a serious crime, namely perjury committed during the Board's enforcement proceedings. Id., at 323. See also id., at 326-331 (Scalia, J., concurring in judgment while stressing seriousness of misconduct). The Court unanimously held that the Board retained "broad discretion" to remedy the labor law violation through a backpay award, while leaving enforcement of the criminal law to ordinary perjury-related civil and criminal penalties. See ABF Freight, supra, at 325; see also 18 U. S. C. §1621 (criminal penalties for perjury).
The Court, trying to distinguish ABF Freight, says that the Court there left open "whether the Board could award backpay to an employee who engaged in `serious misconduct' unrelated to internal Board proceedings." Ante, at 7. But the Court does not explain why (assuming misconduct of equivalent seriousness) lack of a relationship to Board proceedings matters, nor why the Board should have to do more than take that misconduct into account--as it did here. 326 N. L. R. B. 1060, 1060-1062 (1998) (thoroughly discussing relevance of immigration policies); see also A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B., at 412-414 (same). The Court adds that the Board order in ABF Freight "did not implicate federal statutes or policies administered by other federal agencies." Ante, at 7. But it does not explain why this matters when, as here the Attorney General, whose Department--through the Immigration and Naturalization Service--administers the immigration statutes, supports the Board's order. Nor does it explain why the perjury statute at issue in ABF Freight was not a "statute ... administered by" another "agenc[y]." See ABF Freight, supra, at 329 (Scalia, J., concurring in judgment) (noting Department of Justice officials' responsibility for prosecuting perjury).
The Court concludes that the employee misconduct at issue in ABF Freight, "though serious, was not at all analogous to misconduct that renders an underlying employment relationship illegal." Ante, at 8. But this conclusion rests upon an implicit assumption--the assumption that the immigration laws' ban on employment is not compatible with a backpay award. And that assumption, as I have tried to explain, is not justified. See, supra, at 3-5.
At the same time, the two earlier cases upon which the Court relies, NLRB v. Fansteel Metallurgical Corp., 306 U. S. 240 (1939), and Southern S. S. Co. v. NLRB, 316 U. S. 31, 47 (1942), offer little support for its conclusion. The Court correctly characterizes both cases as ones in which this Court set aside the Board's remedy (more specifically, reinstatement). Ante, at 4. But the Court does not focus upon the underlying circumstances--which in those cases were very different from the circumstances present here. In both earlier cases, the employer had committed an independent unfair labor practice--in the one by creating a company union, Fansteel, supra, at 250, in the other by refusing to recognize the employees' elected representative, Southern S. S. Co., supra, at 32-36, 48-49. In both cases, the employees had responded with unlawful acts of their own--a sit-in and a mutiny. Fansteel, supra, at 252; Southern S. S. Co., supra, at 48. And in both cases, the Court held that the employees' own unlawful conduct provided the employer with "good cause" for discharge, severing any connection to the earlier unfair labor practice that might otherwise have justified reinstatement and backpay. Fansteel, supra, at 254-259; Southern S. S. Co., supra, at 47-49.
By way of contrast, the present case concerns a discharge that was not for "good cause." The discharge did not sever any connection with an unfair labor practice. Indeed, the discharge was the unfair labor practice. Hence a determination that backpay was inappropriate in the former circumstances (involving a justifiable discharge) tells us next to nothing about the appropriateness as a legal remedy in the latter (involving an unjustifiable discharge), the circumstances present here.
The Court also refers to the statement in Sure-Tan, Inc. v. NLRB, 442 U. S. 330, 341 (1979) ("[L]anguage of an opinion" must be "read in context" and not "parsed" like a statute). Sure-Tan involved an order reinstating (with backpay) illegal aliens who had left the country and returned to Mexico. Sure-Tan, 476 U. S., at 888-889. In order to collect the backpay to which the order entitled them, the aliens would have had to reenter the country illegally. Consequently, the order itself could not have been enforced without leading to a violation of criminal law. Id., at 903. Nothing in the Court's opinion suggests that the Court intended its statement to reach to circumstances different from and not at issue in Sure-Tan, where an order, such as the order before us, does not require the alien to engage in further illegal behavior.
Finally, the Court cannot reasonably rely upon the award's negative features taken together. The Court summarizes those negative features when it says that the Board "asks that we ... award backpay to an illegal alien  for years of work not performed,  for wages that could not lawfully have been earned, and  for a job obtained in the first instance by a criminal fraud." Ante, at 10. The first of these features has little persuasive force, given the facts that (1) backpay ordinarily and necessarily is awarded to a discharged employee who may not find other work, and (2) the Board is able to tailor an alien's backpay award to avoid rewarding that alien for his legal inability to mitigate damages by obtaining lawful employment elsewhere. See, e.g., Sure-Tan, supra, at 901-902, n. 11 (basing backpay on "representative employee"); A. P. R. A. Fuel, supra, at 416 (providing backpay for reasonable period); 326 N. L. R. B., 1062 (cutting off backpay when employer learned of unlawful status).
Neither can the remaining two features--unlawfully earned wages and criminal fraud--prove determinative, for they tell us only a small portion of the relevant story. After all, the same backpay award that compensates an employee in the circumstances the Court describes also requires an employer who has violated the labor laws to make a meaningful monetary payment. Considered from this equally important perspective, the award simply requires that employer to pay an employee whom the employer believed could lawfully have worked in the United States, (1) for years of work that he would have performed, (2) for a portion of the wages that he would have earned, and (3) for a job that the employee would have held--had that employer not unlawfully dismissed the employee for union organizing. In ignoring these latter features of the award, the Court undermines the public policies that underlie the Nation's labor laws.
Of course, the Court believes it is necessary to do so in order to vindicate what it sees as conflicting immigration law policies. I have explained why I believe the latter policies do not conflict. See, supra, at 3-5. But even were I wrong, the law requires the Court to respect the Board's conclusion, rather than to substitute its own independent view of the matter for that of the Board. The Board reached its conclusion after carefully considering both labor law and immigration law. 326 N. L. R. B., at 1060-1062; see A. P. R. A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B., at 412-414. In doing so the Board has acted "with a discriminating awareness of the consequences of its action" on the immigration laws. Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 174 (1962). The Attorney General, charged with immigration law enforcement, has told us that the Board is right. See 8 U. S. C. §1324a(e) (Immigration and Naturalization Service placed within the Department of Justice, under authority of Attorney General who is charged with responsibility for immigration law enforcement); cf. United States v. Mead Corp., 533 U. S. 218, 258-259, n. 6 (2001) (Scalia, J., dissenting) (Solicitor General's statements represent agency's position); Jean v. Nelson, 472 U. S. 846, 856 and n. 3 (1985) (agency's position with respect to its regulation during litigation "arrives with some authority"). And the Board's position is, at the least, a reasonable one. Consequently, it is lawful. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984) (requiring courts to uphold reasonable agency position).
Section 8(a)(3) of the NLRA prohibits discrimination "in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 49 Stat. 452, as added, 61 Stat. 140, 29 U. S. C. §158(a)(3).
The Courts of Appeals have divided on the question whether the Board may award backpay to undocumented workers. Compare NLRB v. A.P.R.A. Fuel Oil Buyers Group, Inc., 134 F. 3d 50, 56 (CA2 1997) (holding that illegal workers could not collect backpay under the NLRA), and Local 512, Warehouse and Office Workers' Union v. NLRB, 795 F. 2d 705, 723 (CA9 1986) (same), with Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d 1115 (CA7 1992) (holding that illegal workers could collect backpay under the NLRA). The question has a checkered career before the Board, as well. Compare Felbro, Inc., 274 N. L. R. B. 1268, 1269 (1985) (illegal workers could not be awarded backpay in light of Sure-Tan, Inc. v. NLRB, 467 U. S. 883 (1984)), with A.P.R.A. Fuel Oil Buyers Group, Inc., 320 N. L. R. B. 408, 415 (1995) (illegal workers could be awarded backpay notwithstanding Sure-Tan); Memorandum GC 87-8 from Office of General Counsel, NLRB, The Impact of the Immigration and Reform and Control Act of 1986 on Board Remedies for Undocumented Discriminatees, 1987 WL 109409 (Oct. 27, 1988) (stating Board policy that illegal workers could not be awarded backpay in light of IRCA), with Memorandum GC 98-15 from Office of General Counsel, NLRB, Reinstatement and Backpay Remedies for Discriminatees Who May Be Undocumented Aliens In Light of Recent Board and Court Precedent, 1998 WL 1806350 (Sept. 4, 1998) (stating Board policy that illegal workers could be awarded backpay notwithstanding IRCA).
For an alien to be "authorized" to work in the United States, he or she must possess "a valid social security account number card," §1324a(b)(C)(i), or "other documentation evidencing authorization of employment in the United States which the Attorney General finds, by regulation, to be acceptable for purposes of this section," §1324a(b) (C)(ii). See also §1324a(h)(3)(B) (defining "unauthorized alien" as any alien "[not] authorized to be so employed by this chapter or by the Attorney General"). Regulations implementing these provisions are set forth at 8 CFR §274a (2001).
Justice Breyer contends otherwise, pointing to a single Committee Report from one House of a politically divided Congress, post, at 5 (dissenting opinion) (citing H. R Rep. No. 99-682, pt. 1 (1986)), which is a rather slender reed, e.g., Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in judgment). Even assuming that a Committee Report can shed light on what Congress intended in IRCA, the Report cited by Justice Breyer says nothing about the Board's authority to award backpay to illegal aliens. The Board in fact initially read the report as stating Congress' view that such awards are foreclosed. Memorandum GC 88-9 from Office of General Counsel, NLRB, Reinstatement and Backpay Remedies for Discriminatees Who Are "Undocumented Aliens," 1988 WL 236182 *3 (Sept. 1, 1988) ("[T]he relevant committee report points out [that] Sure-Tan was the existing law and that decision itself limited the remedial powers of the NLRB. Clearly Congress did not intend to overrule Sure-Tan"). Other courts have observed that the Report "merely endorses the first holding of Sure-Tan that undocumented aliens are employees within the meaning of the NLRA." Del Rey Tortilleria, Inc., 976 F. 2d, at 1121 (citation omitted). Our first holding in Sure-Tan is not at issue here and does not bear at all on the scope of Board remedies with respect to undocumented workers.
When questioned at oral argument about the tension between affirmative mitigation duties under the NLRA and explicit prohibitions against employment of illegal aliens in IRCA, the Government candidly stated: "[T]he board has not examined this issue in detail." Tr. of Oral Arg. 32. Justice Breyer says that we should nonetheless defer to the Government's view that the Board's remedy is entirely consistent with IRCA. Post, at 9-10 (dissenting opinion). But such deference would be contrary to Southern S. S. Co. v. NLRB, 316 U. S. 31, 40-46 (1942), where the Government told us that the Board's remedy was entirely consistent with the federal maritime laws, and NLRB v. Bildisco & Bildisco, 465 U. S. 513, 529-532 (1984), where the Government told us that the Board's remedy was entirely consistent with the Bankruptcy Code, and Sure Tan, Inc. v. NLRB, 467 U. S. 883, 892-894 and 902-905 (1984), where the Government told us that the Board's remedy was entirely consistent with the INA. See also Carpenters v. NLRB, 357 U. S. 93, 108-110 (1958) (rejecting Government position that we should defer to the Board's interpretation of the Interstate Commerce Act). We did not defer to the Government's position in any of these cases, and there is even less basis for doing so here since IRCA--unlike the maritime statutes, the Bankruptcy Code, or the INA--not only speaks directly to matters of employment but expressly criminalizes the only employment relationship at issue in this case.
Because the NLRB is precluded from imposing punitive remedies, Republic Steel Corp. v. NLRB, 311 U. S. 7, 9-12 (1940), it is an open question whether awarding backpay to undocumented aliens, who have no entitlement to work in the United States at all, might constitute a prohibited punitive remedy against an employer. See Del Rey Tortilleria, Inc. v. NLRB, 976 F. 2d, at 1119 (finding that undocumented workers discharged in violation of the NLRA have not been harmed in a legal sense and should not be entitled to backpay, because the " `award provisions of the NLRA are remedial, not punitive, in nature, and thus should be awarded only to those individuals who have suffered harm' " ) (quoting Local 512, Warehouse and Office Workers Union v. NLRB, 795 F. 2d, at 725 (Beezer, J., dissenting in part)). Because we find the remedy foreclosed on other grounds, we do not address whether the award at issue here is " `punitive' and hence beyond the authority of the Board." Sure-Tan, supra, at 905, n.4.


text:
Article 49(1) of the Convention permits a buyer to avoid the contract whenever the seller commits a fundamental breach or fails to deliver in response to a Nachfrist ultimatum under Article 47.
Avoidance relieves both parties of executory performance obligations. It gives the buyer a right to restitution of amounts "paid under the contract"  and an obligation to return whatever the seller has "supplied . . . under the contract."  Thus if the seller has delivered goods, an avoiding buyer must preserve  and return the goods, although it may retain them until reimbursed for reasonable expenses of preservations. Indeed, subject to certain broad exceptions, the buyer loses the right to avoid if it cannot return the goods "substantially in the condition" in which it received them. The buyer will also lose the right to avoid unless it sends notice of avoidance within a reasonable time after it knew (or should have known) of the breach. Furthermore, the buyer will lose the right to avoid on the basis of non-conformity in the goods unless it sends notice "specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it"  or, at the latest, within two years from the date of delivery. Successful avoidance entitles the buyer to damages measured by the market price of the goods or the price paid in a substitute transaction ("cover").
The buyer's power under the Convention to avoid after the goods have been delivered is strikingly similar to the buyer's power to reject or revoke acceptance under Article 2 of the U.C.C. A rejecting or revoking buyer, like an avoiding buyer, has a right to recover "so much of the price as has been paid"  and an obligation to preserve and return the goods to the seller, subject to a security interest for reasonable expenses of "inspection, receipt, transportation, care and custody. . . ."  A buyer loses the right to revoke acceptance under Article 2 if the goods have undergone "any substantial change in condition" not caused by their own defects  -- a limitation similar to that in Article 82 of the Convention. Article 2 requires a buyer to send notice of rejection or revocation within time constraints similar to those applicable to notice of avoidance under the Convention. By failing to specify "ascertainable" defects in the notice of rejection, an Article 2 buyer may waive the right to base rejection on such defects  much as a Convention buyer may, under Article 39, lose the right to rely on discoverable defects by failing to specify them in notice to the seller. Where the seller has delivered, successful rejection or revocation is a prerequisite to the Article 2 buyer's claim for cover or market-price differential damages, just as successful avoidance by buyer is a prerequisite to those damage measures under the Convention.
A seller's right under the Convention to avoid the contract is the mirror image of the buyer's avoidance right. If the contract is avoided because the buyer has committed a fundamental breach or has failed to accept or pay in response to a Nachfrist notice, the seller is relieved of responsibility to perform under the contract. Avoidance gives the seller a right to restitution of whatever it has "supplied . . . under the contract" and an obligation to return whatever the buyer has "paid under the contract."  An avoiding seller, furthermore, can claim market-price differential or resale damages. An Article 2 seller has similar rights and obligations as long as the buyer breaches without continuing to accept the goods -- that is, if the buyer "wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates."  In these situations the Article 2 seller can "cancel,"  terminating its contractual obligations with respect to the affected goods, and recover resale  or market-price differential damages. Because the seller normally has control of goods that are not accepted, Article 2 does not specifically give the seller a right to restitution. Where the seller withholds delivery, however, it may be required to make restitution of a portion of any payments received.
A Convention seller's right to avoid, however, is not limited to non-acceptance situations. It can avoid even after the goods have been delivered to and retained by the buyer, in which case the seller has a right to restitution of the goods under Article 81(2)  as well as a claim for resale or market-price-differential damages under Articles 75 and 76. Under U.C.C. Article 2, in contrast, a seller has extremely limited rights to "undo" an exchange after the goods have been accepted by a breaching buyer. In a credit sale, for example, an Article 2 seller can reclaim goods that have been accepted only if the buyer received them while insolvent and either the seller made demand within ten days after receipt or the buyer misrepresented solvency in writing within three months before delivery. Successful reclamation in a credit sale, furthermore, precludes "all other remedies" including the right to resale or market-price damages. In short, under U.C.C. Article 2 the seller's normal remedy if the buyer accepts the goods is an action for the price. The seller's right under the Convention to avoid the contract, claim restitution of goods that have been accepted, and recover resale or market-price damages represents a significant departure from the U.C.C. Article 2 scheme of remedies.
The Convention requires that avoidance of contract be effected by notice to the other party. CISG does not specify the contents of the notice, although it presumably should contain information sufficient to inform a reasonable person in the breaching party's position that the contract has been avoided. Article 27 provides that a contract is avoided despite errors or delays in the transmission of notice of avoidance, or even failure of the notice to arrive, provided the aggrieved party attempted to communicate "by means appropriate in the circumstances." An aggrieved buyer who wishes to avoid must also take account of Article 39, which provides that a buyer "loses the right to rely on a lack of conformity of the goods" unless it gives [timely] notice specifying the non-conformity.
Article 2 of the U.C.C. contains notice requirements that parallel those under CISG. Both an Article 2 buyer that is rejecting or revoking acceptance of goods and a Convention buyer that is avoiding the contract after delivery must give notice. Both may lose their rights with respect to defects in the goods unless they notify the breaching party of the defects. Under Article 2, however, a buyer that has not received delivery and an unpaid seller need not give notice to cancel the contract, although notice is a prerequisite to one of the seller's avoidance-type remedies -- resale damages. Under the Convention, in contrast, notice of avoidance is always required.
The Convention includes somewhat complex rules on the time for avoidance of the contract. Article 49(2) puts time constraints on the buyer's power to avoid. They apply, however, only where the seller has delivered the goods. Thus if the seller fails to deliver, the Convention does not specifically limit the time for avoidance by the buyer. Where the seller has delivered, the time within which the contract must be avoided depends on the type of breach. If the seller's delivery was late, the buyer will lose the right to avoid unless it does so "within a reasonable time after [the buyer] has become aware that delivery has been made."  If the seller's breach is something other than late delivery -- for example, delivery of goods that do not conform to the contract -- the buyer must generally avoid within a reasonable time after it "knew or ought to have known of the breach."  In the case of non-conforming goods, furthermore, the buyer must give notice specifying the defects within a reasonable time (not to exceed two years from the date of actual delivery) after it discovered or should have discovered the non-conformities.
Professor Honnold notes that the lack of time constraints on avoidance by sellers awaiting payment and buyers awaiting delivery means that an aggrieved party is not forced to estimate when delay in receiving basic performance is sufficient to constitute a fundamental breach. If the seller fails to deliver by the date called for in the contract, for instance, the buyer can safely put off avoiding the contract. If the seller eventually delivers, the buyer still has "a reasonable time after he has become aware that delivery has been made"  to determine whether the "late action" constitutes a fundamental breach and, if it does, to avoid the contract. In the case of a seller awaiting late payment, however, the Convention's execution appears flawed. The seller must avoid for late performance before it "become[s] aware that performance has been rendered,"  without benefit of a "reasonable time" grace period. The seller awaiting a late payment, therefore, must estimate when the buyer's delay constitutes a fundamental breach in order to preserve its avoidance rights. If the seller puts off avoiding the contract and then learns that payment has been made, it will lose the right to avoid even if the buyer's delay constituted a fundamental breach.
* Assistant Professor, University of Pittsburgh School of Law. A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law. . . .
37. Nachfrist is a procedure through which an aggrieved party can make the other side�s failure to perform its basic obligations by a particular date the equivalent of a fundamental breach. For further discussion of Nachfrist, see infra notes 82-91, and accompanying text.
38. See Sales Convention, supra note 1, art. 81(1).
39. Id. art. 81(2). In addition, an avoiding buyer can claim interest from the date of payment. Id. art. 84(1).
40. Id. art. 81(2). In addition, the avoiding buyer "must account to the seller for all benefits which he has derived from the goods or part of them. . . ." Id. art. 84(2).
41. Article 86-88 of CISG detail the avoiding buyer�s obligations to preserve delivered goods.
42. See Sales Convention, supra note 1, art. 86(1). Under Article 88(1) and (2), however, an avoiding buyer may in certain circumstances have a right or even a duty to sell goods in its possession. In that case, the buyer may retain the reasonable costs of preservation and sale from sale proceeds and must account to the seller for the balance. Id. art. 88(3).
43. The buyer retains the right to avoid if (1) its inability to restore the goods substantially in their original condition is not due to its own act or omission, (2) the goods changed condition as a result of the inspection provided for in Article 38, or (3) the buyer has sold, consumed or transformed the goods in the normal course before discovering their nonconformity. Id. art. 82.
44. Id. art. 49(2)(b)(i). Subsections (ii) and (iii) of Article 49(2)(b) adjust the time within which buyer must avoid if the buyer has given a Nachfrist ultimatum under Article 47 or if the seller has exercised its right under Article 48(2) to demand the buyer declare whether it will accept performance.
47. Id. art�s. 75, 76.
48. U.C.C. � 2-711(1) (1978). Article 2, however, does not specifically give buyer the right to recover interest on payments. Contrast Article 84(1) of the Convention.
49. U.C.C. �� 2-602(2)(b), 2-608(3) (1978). Article 84(2) of the Convention requires the avoiding buyer to "account to the seller for all benefits which he has derived from the goods or part of them." Several cases and commentators have found an equivalent implied duty under Article 2. See American Container Corp. v. Hanley Trucking Corp., 11 N.J. Super. 322, 268 A.2d 313 (1970); White & Summers, supra note 9, at 317-18 and cases cited at 318-19 n.72; Phillips, Revocation of Acceptance and the Consumer Buyer, 75 Com. L.J. 354, 357 (1970).
50. U.C.C. � 2-711(3) (1978). Under U.C.C. �� 2-603, 2-604 and 2-608(3), the rejecting or revoking buyer may have a right or even an obligation to sell the goods which is similar to an avoiding buyer�s right or obligation to sell under Article 88(1) and (2) of the Convention. When a U.C.C. Article 2 buyer resells, it is entitled to retain from the proceeds of sale an amount equal to its "reasonable expenses of caring for and selling" the goods, including a sales commission even if the buyer has not paid a commission to a third party. U.C.C. � 2-603(2) (1978); see id., �� 2-604, 2-608(3). Except for the matter of the buyer�s right to retain a commission when it has itself conducted the resale, the right to retain proceeds for "reasonable expenses of caring for and selling" the goods under U.C.C. � 2-603(2) appears identical to the avoiding buyer�s right to retain proceeds for "reasonable expenses of preserving the goods and of selling them" under Article 88(3) of the Convention. Under U.C.C. � 2-706(6), however, a buyer that has rightfully rejected or justifiably revoked may sell goods in its possession and retain proceeds for items covered by its � 2-711(3) security interest. Those items include expenses of "inspection, receipt, [and] transportation" of the goods, which may go beyond the expenses of preserving and reselling covered by U.C.C. � 2-603(2) and Article 88(3) of the Convention. The buyer�s security interest under U.C.C. � 2-711(3) (and thus its right under � 2-706(6) to retain proceeds from the resale of the goods), furthermore, covers "any payments made on [the goods�] price." Under the Convention, an avoiding buyer�s right to deduct the amount of its payments to seller from proceeds of the resale of delivered goods is unclear. See infra, notes 132-33 and accompanying text.
51. U.C.C. � 2-608(2) (1978). Article 2 does not specify the effect of a change in the condition of the goods on a buyer�s right to reject. If the change is due to action by the buyer that is "inconsistent with the seller�s ownership," the buyer has accepted under � 2-606(1)(c) and must look to its right to revoke in order to thrust the goods back onto the seller. Whether a buyer who has not accepted but who breaches its obligation under � 2-602(2)(b) to hold rejected goods "with reasonable care" would lose the right to reject is unclear. The buyer may merely be liable for resulting damages. Cf. id. � 2-603 comment 5 (buyer who fails to make salvage sale required under � 2-603(1) "is subject to damages. . . ."). A change in the goods� condition that does not give rise to acceptance or result from a breach of the buyer�s duty to preserve presumably would not preclude rejection.
52. Under Articles 26 and 49(2)(b) of the Convention, a buyer who has received non-conforming goods and who wishes to avoid the contract must send notice within a reasonable time after it knew or should have known of seller�s breach. Similarly, an Article 2 buyer must reject goods "within a reasonable time after their delivery or tender," U.C.C. � 2-602(1) (1978), with due allowance for a "reasonable opportunity to inspect" the goods, id. � 2-606(1)(b). An attempted rejection is "ineffective unless the buyer seasonably notifies the seller," id. � 2-602(1)(b), which requires notice "at or within the time agreed or if no time is agreed at or within a reasonable time," id. � 1-204(3). Thus a buyer who wishes to reject on the basis of a non-conformity in the goods must send notice within a reasonable time after an opportunity to inspect. See id. � 2-602 comment 1. If an Article 2 buyer has accepted goods, it can revoke only by giving notice "within a reasonable time after the buyer discovers or should have discovered the ground for [revocation]. . . ." Id. � 2-608(2).
53. U.C.C. � 2-605 (1978). This provision does not apply to revocation of acceptance, although a requirement to specify defects in the notice of revocation may be implied by "considerations of good faith, prevention of surprise, and reasonable adjustment." Id. � 2-608 comment 5.
54. Differences between an aggrieved buyer�s obligations under the Convention and Article 2 are explored at infra notes 234-44 and accompanying text.
55. U.C.C. � 2-711(1)(a), (b) (1978).
56. For a discussion of the Nachfrist procedure available to an aggrieved seller under Article 63, see infra notes 234-44 and accompanying text.
57. See Sales Convention, supra note 1, art. 81(1).
58. Id. art. 81(2). In addition, the buyer must "account to the seller for all benefits which he has derived from the goods or part of them. . . ." Id. art. 84(2).
59. Id. art. 81(2). In addition, the avoiding buyer can claim interest from the date of payment. Id. art. 84(1).
61. U.C.C. � 2-703 (1978).
63. Id. � 2-106(3), (4).
64. Id. �� 2-703(d), 2-706.
65. Id. �� 2-703(e), 2-708(1).
66. That is, if the buyer has repudiated or failed to make a payment due on or before delivery, the seller will normally exercise its rights under U.C.C. � 2-703(a) and (b) to withhold delivery or to stop delivery by a bailee. Where the buyer wrongfully rejects or revokes acceptance, it normally insists that the seller take back the goods. There is one situation that may impliedly require a right to resitution for the U.C.C. seller. If the buyer sends notice of rejection and thereafter exercises "ownership" over the rejected goods (e.g., refuses to return the goods to the seller), the buyer�s action is "wrongful as against the seller." Id. � 2-602(2)(a). Under U.C.C. � 2-606(1)(c), the seller has the option to treat the buyer�s action as acceptance. If the seller refuses to ratify the buyer�s "acceptance" � that is, if the seller opts to treat the goods as rejected � the seller should recover the goods. Cf. 3 W. Hawkland, Uniform Commercial Code Series � 2-602:01 at 20 ("exercise of dominion over the goods by the buyer after rejection is wrongful, giving the seller the option to treat this conduct . . . as an act of conversion or trespass"). Unless the seller�s election under U.C.C. � 2-606(1)(c) is limited to situations where the buyer has voluntarily returned the goods or the seller can reacquire the goods under a conversion theory, the seller should have an implied right to restitution.
67. U.C.C. � 2-718(2) (1978).
68. The buyer must also "account to the seller for all benefits which he has derived from the goods . . ." See Sales Convention, supra note 1, art. 84(2).
69. U.C.C. � 2-702(2) (1978).
70. Id. � 2-702(3). Beyond credit sales covered by U.C.C. � 2-702(2) and (3), the only other situation in which Article 2 contemplates that a seller can reclaim accepted goods is where payment fails in a cash sale. See id. �� 2-511(3), 2-507(2); Mann & Phillips, The Cash Seller Under the Uniform Commercial Code, 20 B.C.L. Rev. 370 (1979). Comment 3 to U.C.C. � 2-507 suggests that the 10 day demand requirement placed on reclaiming credit sellers by � 2-702(2) also applies to reclaiming cash sellers. Courts have split on this suggestion. Compare Szabo v. Vinton Motors, Inc., 630 F.2d 1 (1st Cir. 1980) (applying 10 day limitation) with Burk v. Emmick, 637 F.2d 1172 (8th Cir. 1980) (rejecting 10 day limitation). Burk also held that the reclaiming cash seller, unlike the reclaiming credit seller, retains the right to resale damages. 637 F.2d at 1175.
143. See Sales Convention, supra note 1, art. 26.
144. See id. art. 8.
145. Id. art. 26; U.C.C. �� 2-602(1), 2-608(2) (1978).
146. See Sales Convention, supra note 1, art. 39; U.C.C. � 2-605(1) (1978). Under Article 39 of the Convention, the buyer must give notice specifying non-conformities whether or not it intends to avoid the contract. U.C.C. � 2-605(1), in contrast, requires the buyer to give notice of particular defects only where it is rejecting; a revoking buyer�s obligations to specify defects are those implied "by considerations of good faith, prevention of surprise, and reasonable adjustment." Id. � 2-608 comment 5. For a comparison of the particularization requirements of the Convention and Article 2 if the buyer intends to retain the goods, see infra notes 234-44 and accompanying text.
There are other differences between the particularization requirements in Article 39 of the Convention and U.C.C. � 2-605(1). The U.C.C. requires the buyer to specify defects only where the seller could have cured or, between merchants, where the seller requests a written statement of defects. U.C.C. � 2-605(1)(a), (b). No such limitation appears in Article 39 of the Convention. On the other hand, the Article 2 particularization requirement applies to any defect in tender, id. � 2-605(1), id. � 2-605 comment 1, whereas the particularization requirement in Article 39 applies only to "a lack of conformity of the goods."
147. R. Speidel, Sales and Sales Financing 148 (1984). In an installment contract, however, a buyer that accepts a non-conforming delivery and a seller that accepts a late payment must give "seasonable" notice in order to cancel the executory portion of the contract. U.C.C. � 2-612(3) (1978); id. � 2-612 comment 7.
148. U.C.C. � 2-706(3), 4(b) (1978).
149. See Sales Convention, supra note 1, art. 49(2)(a). The language of Article 49(2)(a) suggests that the "reasonable time" for avoidance starts running only upon buyer�s actual subjective awareness of delivery.
Although Article 49(2) and the comparable provision applicable to sellers (Article 64(2)) state that a party who fails to comply with the timing requirements in these Articles loses the right to avoid, it would probably be more accurate to describe this as a loss of power to avoid. In other words, the drafters apparently intended untimely attempts at avoidance to be ineffective rather than wrongful. Similar observations apply to Article 82, which provides that the buyer may lose "the right to declare the contract avoided" if it cannot make restitution of delivered goods substantially in their delivered condition.
150. Id. art. 49(2)(b)(i). The time at which the buyer should discover defects in the goods must be determined by reference to Article 38, which generally requires the buyer inspect the goods "within as short a period of time as is practicable in the circumstances." Honnold, supra note 25, at 321. If the buyer has used the Nachfrist procedure, however, the reasonable time to avoid for breach other than later delivery begins to run after the date for performance set in the Nachfrist notice (or after the seller has declared that it will not perform by that date). Sales Convention, supra note 1, art. 49(2)(b)(ii).
A seller�s right to cure after the time for performance includes a right to request that the buyer indicate whether late cure will be accepted; if "the buyer does not comply with request within a reasonable time, the seller may perform within the time indicated in [the seller�s] request." Id. art. 48(2). Where the seller has made a request under Article 48(2), the buyer�s reasonable time for avoidance begins to run after the additional period indicated by seller or after the buyer declares that it will not accept the proposed cure. Id. art. 49(2)(b)(iii).
151. See Sales Convention, supra note 1, art. 39(1), (2).
152. It is not clear whether the time constraints in Article 64(2), which apply only "in cases where the buyer has paid the price," come into play where the buyer has paid a portion of the price. The statutory language suggests that any failure to pay makes Article 64(2) inapplicable. The reasons for exempting unpaid sellers from the time limitations in Article 64 (see infra notes 155-56 and accompanying text), furthermore, may well exist in the partial-payment situation. Because the seller can avoid only if the buyer�s failure to pay constitutes a fundamental breach or if the buyer has failed to pay a substantial portion of the price in response to a Nachfrist notice (see supra notes 80-91 and accompanying text), there is little reason to subject the partially-paid seller to the time constraints in Article 64(2).
153. Sales Convention, supra note 1, art. 64(2)(a). The text of Article 64(2)(a) suggests that only actual knowledge of the buyer�s performance precludes avoidance by the seller. Compare Article 49(2) and supra note 149.
154. See Sales Convention, supra note 1, art. 64(2)(b)(i). If the seller has employed the Nachfrist procedure, however, its reasonable time for avoidance begins to run after the date for performance set in the Nachfrist notice (or after the buyer has declared that it will not perform within the additional period). Id. art. 64(2)(b)(ii).
155. Honnold, supra note 25, at 320, 363-64.
156. See Sales Convention, supra note 1, art. 49(2)(a).

matches:
art. 81
art. 81
art. 84
art. 81
art. 84
art. 86
art. 88
art. 82
art. 49
v.
art. 81
art. 81
art. 84
art. 81
art. 84
art. 84
v.
v.
art. 26
art. 8
art. 26
art. 39
art. 49
art. 49
art. 49
art. 48
art. 49
art. 39
art. 64
art. 64
art. 64
art. 49


§ 63-1 Residential building permit.
§ 63-2 Nonresidential building permit.
§ 63-4 Nonresidential site plan review.
§ 63-5 Planned development or cluster development site plan review.
§ 63-6 Senior living communities.
§ 63-8 Soil and woodland conservation.
§ 63-9 SEQRA review; environmental impact statements.
§ 63-10 Zoning Board of Appeals application.
§ 63-11 Zoning change requests.
§ 63-12 Conditional use permits.
§ 63-14 Traffic mitigation fees.
§ 63-16 Sidewalk installation fee.
§ 63-17 Questions regarding fees.
Zoning — See Ch. 129.
Editor's Note: This resolution supersedes former Ch. 63, Fees, adopted 2-2-1995, as amended.
The rate for residential building permits shall be $0.20 per square foot of floor area; a minimum fee of $50 shall be required. Floor area shall include any basement, carport, garage and canopies but shall not include a cellar, subcellar or nonhabitable attic. Floor area shall be based on the outside dimensions of the building. Renewal of all residential buildings permits shall be $100.
The rate for nonresidential building permits shall be $0.30 per square foot of floor area; a minimum fee of $150 shall be required. Square footage shall include any basement, cellar, subcellar and canopies, decks, patios, etc., but shall not include a crawl space. Square footage shall be based on the outside dimensions of a building, not living space. Fees will not be reimbursed after application approval.
Conceptual/preliminary: $20 per living unit; minimum fee of $300 as per proposed plan. This application fee shall be due at the time of application.
Final: After final subdivision plan approval, but prior to submission of the final subdivision plan for signature, a fee of $150 per living unit is due.
The total review fee is due at conceptual submission.
Outside consultant review escrow: Prevailing rates shall apply. An escrow account shall be established for the fees of an outside consultant.
Park and recreation: $1,200 per new living unit, due at the time final approval is obtained.
If the Planning Board determines that additional and/or special review is required, it may, at its discretion, call in an independent engineering firm and/or special consultants. The costs of these services shall be borne by the owner/developer.
Payment of all fees shall be made prior to the signing of any Mylars by the Town of Wilton.
All engineering fees incurred for projects that are withdrawn by the applicant or disapproved by the Board shall be payable by the applicant at the time of withdrawal or disapproval. Projects that are dormant for over one year shall be reviewed and engineering review fees assessed for those projects.
This section pertains to all approved subdivisions, whether residential, commercial or industrial. In the case of commercial or industrial subdivisions, fees shall be based on a per lot unit basis rather than per living unit and no park and recreation fees shall be due.
Additional fees for projects under the jurisdiction of the Wilton Water and Sewer Authority shall apply.
Pursuant to NY Town Law Art. 16, § 276, failure to file final plat with the County Clerk within 62 days from signature of the Planning Board Officer on Mylars constitutes expiration of subdivision approval. If approval expires, the subdivision plans must be resubmitted and any fees shall be assessed by the Planning Department.
When adding a building lot, charge all subdivision fees. When merging two lots into one or adjusting a lot line, charge a minimum fee of $300.
See also § 63-14, Traffic mitigation fees, and § 63-15, Inspection fees.
The total application fee is due at the site plan application/conceptual submission stage.
For minor or amended site plan, see § 129-147.
Construction inspection fee: $0.20 per square foot or a minimum of $200. Fee can be adjusted for very small projects requiring minimal inspection.
All engineering fees incurred for projects that are withdrawn by the applicant or disapproved by the Board shall be payable by the applicant at the time of withdrawal or disapproval.
Projects that are dormant for over one year shall be reviewed and engineering review fees assessed for those projects.
There are no park and recreation fees.
Review fees: the sum of the subdivision and/or commercial and industrial review fees. If encompassing residential and commercial development, the sum of the two, calculated separately, shall apply.
Minor amendment to a PUD shall be $500. The review fee for an engineer and/or attorney shall be assessed and all cost borne by the owner/developer.
Park and recreation: $750 per new living unit, due at the time final approval is obtained.
Final: After final site plan approval, but prior to submission of the final site plan for signature, a fee of $150 per living unit is due.
Review fees shall be based on the number of living units as per the subdivision review fee schedule in § 63-3.
Park and recreation: $750 per living unit, due at the time final approval is obtained; assisted-living facilities: $250 per living unit.
Projects that are dormant for over a year shall be reviewed and engineering fees assessed for those projects.
The schedule of fees is based on a per-unit basis which shall be paid by the developer in payments at the following set rates.
One hundred percent of the total review fee (includes fees and/or escrow amounts, to be paid with separate checks) shall be paid to the Town of Wilton Planning Board at the time of submission of the conceptual site/subdivision plan.
The preliminary submission shall not be accepted by the Town unless 100% of the total review fee has been paid. If the Town is the primary reviewer, the Town review fee (from the appropriate fee schedule) shall be due. If an outside consultant is the primary reviewer, the Town review fee and consultant escrow amount shall be due. All of the fees collected by the Town of Wilton shall be retained by the Town to help defray the cost of the Town's in-house review.
All escrow amounts collected by the Town of Wilton shall be placed in an escrow account. The Town shall be authorized to pay the costs for reviews from the money on deposit in the account in order for the Town to defray the cost of the review services. Upon completion of the approval process, should monies remain in the escrow account, following the outside consultant's final billing for the project, they shall be returned to the owner/developer. If monies on deposit prove to be insufficient for the review (including any SEQRA review), the owner/developer shall deposit monies in an amount sufficient to cover the additional review costs as may be required. If the Town is the primary reviewer and determines that additional review by an outside consultant is required, these additional costs for outside consultant review shall be borne by the owner/developer. The estimated fee for this additional review shall promptly be escrowed by the developer with the Town prior to the additional review taking place. The Town review fees shall not decrease as a result of these additional costs borne by the owner/developer.
Projects under one acre shall not require a review fee because this size project does not have to appear before the Town Planning Board.
If the applicant has already obtained a subdivision or preliminary approval, both the application fee and the review fee shall be waived.
This review fee is a lump sum amount which is paid to the Town at the time of application.
If the Town requires the assistance of an outside consultant, the cost incurred for such services shall be paid by the applicant. The outside consultant's estimated fee shall be escrowed with the Town at the time of application.
The Town of Wilton reserves the right to set up an escrow account for a given project when it has received a positive declaration according to SEQRA. Due to the direct relationship between the cost of preparing an environmental impact statement (EIS) and the specific characteristics of the lands to be used, a set price per unit cannot be estimated. When a large project is submitted to the Town and receives a positive declaration, the Town shall estimate the cost of review and supply this information to the applicant. Upon completion of the EIS, should monies remain in the account following the Town Engineer's and/or Town Attorney's final billing for the project, they shall be returned to the applicant/developer. If monies on deposit prove to be insufficient for the EIS, the applicant/developer shall deposit monies in an amount sufficient to cover the additional costs as may be required.
Three hundred dollars for projects of an estimated completed value of less than $300,000.
Five hundred dollars for projects of an estimated completed value of more than $300,000.
Seven hundred and fifty dollars for projects of an estimated completed value of less than $300,000.
One thousand two hundred and fifty dollars for projects of an estimated completed value of more than $300,000.
Signs: $100. The sign application fee shall be separate from any other application fees to the Zoning Board of Appeals.
The application fee for interpretation applications to the Zoning Board of Appeals shall be $50.
If the Zoning Board determines that additional and/or special review is required, it may, at its discretion, call in an independent engineering firm and/or special consultants. The costs of these services shall be borne by the owner/applicant.
Rezoning requests for properties with a value of less than $300,000: $500.
Rezoning requests for properties with a value of more than $300,000: $750.
The fee for a conditional use permit shall be $100.
The fee for a sign permit shall be $3 per square foot, with a minimum sign permit fee of $100.
Mitigation fees shall be the primary source of funding for implementation of the required traffic improvements. These fees shall be implemented through State Environmental Quality Review Act (SEQRA) procedures. The use of development mitigation fees allows the Town of Wilton to collect necessary dollars to make improvements related to Town-wide traffic study.
For uses not shown above, the Town will use the ITE Trip Generation Manual (most recent edition) to calculate the fee using the appropriate average trip generation rate.
When a property is changing a use classification, as defined by the traffic mitigation fees, the traffic mitigation fee shall be based on the square footage of any existing or new structure, along with any approved additions, less the required traffic mitigation fee for the current use, based on existing structures. However, based on these calculations the applicant shall not be entitled to a credit.
Fees for structural additions to existing sites shall be based only on the additional square footage. This applies only if the use of the property stays within the same mitigation fee category.
When a property is subdivided and an existing residence is located on one of the new parcels created by the subdivision, only one parcel shall be exempt from a traffic mitigation fee and park and recreation fee.
Total fee shall be due upon final approval, prior to the signing of any Mylar.
If a project is to be filed in phases, as approved by the Planning Board, all lots shown on the mylar shall be paid as if the phase was a separate project. For example: if a mylar shows the entire project in four phases the entire project shall be used as the basis of determining the fee payment; however if only one phase of a project is shown on the mylar the number of lots in that phase shall determine the fee payment.
Town roads: $3 per linear foot.
The Town Engineer and Highway Superintendent can require 100% field inspection by a consultant of the Town's choice, paid for by the developer/owner through a Town escrow account.
Site inspection fee: $0.15 per gross square foot of building floor area or a minimum fee of $150.
The Town reserves the right to adjust this inspection fee for cases involving very small projects that may require minimal inspection.
In both cases (residential and nonresidential), if off-site improvements are required, an additional fee shall be calculated by the Town for the inspection of these off-site improvements. In cases where the Town requires the use of an outside consultant to perform inspections, the per-linear-foot fee would still be paid to the Town. The Town shall be authorized to pay the consultant from this fee, with any remaining amounts retained by the Town to cover its administrative costs. If the inspection fee proves to be insufficient for the inspection work, the owner/developer shall deposit monies in an amount sufficient to cover the additional inspection costs. These additional monies shall be deposited immediately so that the construction and inspection work may continue. The initial inspection fees shall be fully paid prior to any construction activity taking place on the project.
The Building Department and the Department of Planning and Engineering shall be given a minimum of 24 hours' and preferably 48 hours' notice to schedule inspections. Contractors, who find that work to be inspected is not complete, shall give said Department sufficient notice to reschedule appointments/inspections. The Building Department and the Department of Planning and Engineering may impose a fine on contractors who make appointments for inspections and then do not notify said Department if, for some reason (including work not being completed), the inspection should have been cancelled or postponed. The amount of the fine shall be $100 per violation and shall be payable, at the discretion of the Department, before additional inspections are made. If outstanding fines have been imposed and remain unpaid, no certificate of occupancy or certificate of compliance shall be issued. All fines are the responsibility of the applicant even if the inspection appointments have been made by subcontractors or other interested parties.
Stormwater maintenance fee. On projects where the Town will take on maintenance responsibilities of stormwater management areas (basins) and/or practices, the applicant is required to pay $2,500 per stormwater management area or practice prior to final approval. The applicant shall maintain said stormwater management areas and perform required maintenance per NYSDEC stormwater permit standards until the letter of credit expires. Maintenance and required inspections shall be performed per NYSDEC stormwater permit standards until notice of termination is filed.
For all parcels receiving site plan approval in the H-1 and CR-2 Zones, a one-time, lump sum fee of $40 per linear foot along the proposed sidewalk's path less any paved areas this path will cross, per the approved site plan, shall be paid prior to signing of Mylars/prints (i.e., final or minor site plan approval).
All questions regarding the amount of fees charged in this chapter shall be addressed to the Wilton Town Board.
Fees will not be reimbursed or altered for revisions after application is made.


CLEAN HARBORS OF BRAINTREE, INC. vs. RICHARD G. PARSONS, ELIZABETH A. PIRCIO, ALLAN FITZSIMMONS, JOSEPH W. AIELLO and ROBERT TIERNEY, as they are members of the PLANNING BOARD OF THE TOWN OF BRAINTREE, FRANK V. MARINELLI, SR., Inspector of Buildings for the TOWN OF BRAINTREE and THE TOWN OF BRAINTREE.
The Plaintiff filed its complaint in this matter on August 31, 1988 seeking a declaratory judgment, pursuant to G.L. c. 240, §14A, to determine whether or not a "site plan review special permit" is required under the Zoning By-law ("By-law") of the Town of Braintree for the installation of certain fire detection and suppression equipment and related structures at its facility in Braintree. The Plaintiff also appeals the decision of the Braintree Planning Board ("Board") denying its application for a "site plan review special permit" for various reasons, including the requirement in the By-law as followed by the Board, that four affirmative votes were necessary to grant the permit. The Plaintiff further appeals, pursuant to G.L. c. 40A, §17, the Board's decision denying its application for a "site review special permit."
This cause came on to be heard on November 28, 1988 on the Plaintiff's motion for summary judgment.
I rule that there are no genuine issues of material fact concerning the matter under G.L. c. 240, §14A or as to the requisite vote necessary to approve the "site plan special permit." Accordingly, as to these issues, the case is ripe for summary judgment pursuant to Rule 56, Mass. R. Civ. P.; Community National Bank v. Dawes, 369 Mass. 550 (1976).
1. The Plaintiff is the owner of approximately eleven acres of land located at Lancaster Road and Hill Avenue in Braintree ("Property"). The Plaintiff operates a hazardous waste facility thereon.
2. Since May 4, 1987, the Property has been zoned "highway/business", which zone does not permit such facility, however, the property continues to have the rights of industrial zoning due to the timely filing of a perimeter plan under G.L. c. 41, §81P.
3. The Plaintiff maintains a number of storage tanks containing flammable materials on the Property in an area enclosed within a concrete dike. The Plaintiff proposes to install an automated foam fire suppression system, consisting of pipes, sprinklers, detectors and related fixtures located largely over the tanks. The equipment, in turn, will be protected from the weather by a roof consisting of corrugated metal panels. The installation will be supported on steel columns and rafters. It will be approximately 36 feet high, 178 feet wide and 150 feet long.
4. In early March of 1988, the Plaintiff applied for a building permit for the above project, however, the Building Inspector, believing site plan review to be a prerequisite, denied the permit.
5. On March 11, 1988, the Plaintiff filed for a "site plan review special permit", preserving its position that no such review is necessary in this instance. The matter was heard by four members of the five member Planning Board on April 19, 1988. On August 26, 1988, the Board voted to deny the application by a vote of three in favor to one opposed.
. . . The site plan review requirements of this section shall be required for . . . all projects in the general business, highway business, and industrial zones where the first floor area of the new structure, or extension of an existing structure is 500 square feet or more.
While the Plaintiff's contention that the floor area of the "new structure" will not exceed 500 square feet may have merit when read with the By-law definition of "Floor Area-Gross", I find that what is proposed is not a "new structure" with less than 500 square feet of floor, but rather, it is an extension of an existing structure, specifically the diked tank areas, and hence, site plan review is required.
Having found that the By-law requires site plan review for the Plaintiff's project, I find that the three-to-one vote of the Planning Board approving such plan was sufficient and did, in fact, grant approval to the Plaintiff.
As a preliminary matter, I find the term "special permit for site plan review" as used throughout the By-law to be a misnomer inasmuch as the procedure described in the By-law could more properly be termed "site plan review" or "site plan approval", rather than a "special permit" as such is defined by statute. A brief review of c. 40A, §9 discloses that the permit therein envisioned pertains to specific uses. Granted, the second paragraph of that section refers to the provision of "certain open space, traffic or pedestrian improvements . . . or other amenities", but such items are tied directly to an increase in permissible density of population or intensity of a particular use. By comparing the statutory requirements of c. 40A, §9 with the requirements of section 135-711, two very different types of review are demonstrated.
The By-law states at section 135-711 (B)(1) that applications for a special permit for site plan review shall be evaluated and acted upon by the Planning Board as provided in Article V, Section 135-502.
Section 135-502 deals with special permits as authorized by c. 40A, §9. Both the By-law and the statute require affirmative votes of at least four members of a five member board to authorize special permits. As stated above, however, regardless of the By-law nomenclature, Section 135-711 authorizes site plan review and not special permits. It is clear that special permits and site plan review are different in nature and designed to perform separate and different functions. Generally, if the specific area and use criteria stated in the By-law are met, the Board has no discretionary power to deny approval. Rather, the Board is limited to imposing reasonable terms and conditions. Prudential Insurance Co. v. Board of Appeals of Westwood, 23 Mass. App. Ct. 278 , 281 (1986). Moreover, the By-law itself recognizes the distinctions at Section 135-711 (C) (5), while stating in part: ". . . All site plans complying with this section and which do not tend to impair the health, safety, convenience and welfare . . . in general shall be approved." There is little question that the Town of Braintree is well aware of this distinction. See SCIT v. Planning Board of Braintree, 19 Mass. App. Ct. 101 , 105, Note 12 (1984).
By statute, the affirmative vote of four members of a five member board ("super majority") is required for approval of a special permit (c. 40A, §9), variance, or to reverse any order or decision of any administrative official (c. 40A, §15). There is no such requirement for approval of a site plan approval application. Where the legislature has imposed a super majority vote requirement in the foregoing situations arising under c. 40A, the absence of such requirement elsewhere is a persuasive indication of legislative intent. Harris v. Wayland, 16 Mass. App. Ct. 583 , 586 (1983). It is well-established in municipal common law that, in the absence of a contrary statutory provision, a majority of a quorum consisting of a simple majority of a collective body is empowered to act for that body. Id.
While it is true that the zoning power is one of the independent municipal powers of cities and towns included in the broad grant of powers to municipalities to adopt regulations for the protection of the public health, safety or the general welfare in Section 6 of Article 86 of the Constitution ("The Home Rule Amendment"), Board of Appeals of Hanover v. Housing Appeals Court, 363 Mass. 339 , 359 (1972), this amendment has not altered the legislature's supreme power in zoning matters. As authorized by the Amendment and recognized in c. 40A, municipalities may establish various zones, determine density and use requirements peculiar to that municipality and amend such regulations as may be reasonably desirable. However, the legislature in the exercise of its reserve powers under §8 of the Amendment has in c. 40A established a method uniform throughout the Commonwealth for the administration of zoning regulations. There is no super majority requirement for site plan approval in the statute and no authority elsewhere for a municipality to adopt one.
Accordingly, I find that such portions of the By-law as require a four vote approval for site plan special permit applications are invalid. Inasmuch as a simple majority is all that is necessary and consistent therewith, I find that the vote of the Board on August 26, 1988 approved and granted the Plaintiff's application.
Should the Plaintiff's appeal under c. 40A, §17 become material, I find that insofar as that section requires a hearing de novo, and as the Defendants have raised certain material questions of fact, the motion for summary judgment thereunder must be denied.