Lee v. Cai

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22-P-556 Appeals Court

WENDY LEE, trustee,1 & another2 vs. TAO CAI, trustee.3

No. 22-P-556.

Suffolk. December 2, 2022. – April 6, 2023.

Present: Massing, Grant, & D'Angelo, JJ.

Zoning, Board of appeals: decision, Issuance of permit,
Conditions, Hearing, Building permit. Building Permit.
Real Property, Flowage of water. Boston Water and Sewer
Commission. Boston.

Civil action commenced in the Superior Court Department on
September 19, 2019.

The case was heard by Janet L. Sanders, J.

Lane N. Goldberg for the defendant.
Bethany Y. Li for the plaintiffs.

1 Of the Wendy and John Lee Family Wealth Trust.

2 John Lee, as trustee of the Wendy and John Lee Family
Wealth Trust.

3 Of the Johnny Court Realty Trust. The zoning board of
appeal of Boston, a defendant in the trial court, is not a party
to this appeal.
2

D'ANGELO, J. As trustee of a realty trust, Tao Cai

proposes to convert a two-unit rowhouse in Boston's Chinatown

neighborhood to a five-unit residential dwelling. Cai planned

to reconfigure the existing units and add two additional stories

with a roof deck. The building, 9 Johnny Court, lies in the

Chinatown zoning district and the groundwater conservation

overlay district (GCOD).4 The city's zoning board of appeal

(board) granted Cai a conditional use permit authorizing the

project. The direct abutters at 7 Johnny Court, Wendy and John

Lee, as trustees of the Wendy and John Lee Family Wealth Trust

(Lee Trust), appealed from that decision to the Superior Court

pursuant to St. 1956, c. 665, § 11, as amended through St. 1993,

c. 461, § 5. After a three-day jury-waived trial, a Superior

Court judge concluded that Cai had not shown that the planned

project complied with the requirements for a conditional use

permit under Article 6 and Article 32 of the city's zoning code

(zoning code), and vacated the permit. Cai appeals, and we

affirm the judgment.

Background. The facts are derived from the judge's

findings after trial and our own review of the documentary

evidence submitted by the parties.

4 Article 32 of the city's zoning code governs the GCOD. We
refer to Article 32 and the GCOD interchangeably.
3

1. The properties. The parties' properties are two of

five connected brick row houses that are each two and one-half

stories high. Cai, as trustee of the Johnny Court Realty Trust,

owns 9 Johnny Court, and the Lees, as trustees of the Lee Trust,

own 7 Johnny Court; the two houses share a common wall, known as

a party wall, which supports both structures, and they also

share a fire escape.

a. History of the properties. The parties' houses were

constructed over one hundred years ago on land that was once

covered with water but was filled over subsequent years.

Structures in such filled areas were commonly constructed on

wooden piles, and it became imperative to maintain groundwater

levels in order to prevent deterioration of the piles. There is

evidence that the parties' houses have "settled in an uneven

fashion," and the interior windows of 7 Johnny Court are "off

kilter." The judge found that "[b]ecause of the unique risk of

the building and areas built on filled land, the Boston City

Council created the Groundwater Trust, a body tasked with

investigating, monitoring, and recommending solutions to deal

with falling groundwater levels." That ultimately led to the

adoption in 2006 of Article 32 of the zoning code, the GCOD.

See Perry v. Board of Appeal of Boston, 100 Mass. App. Ct. 138,

139-140 (2021).
4

b. Groundwater conservation overlay district. "[T]he

stated purposes of the GCOD are to '(a) prevent the

deterioration of and, where necessary, promote the restoration

of, groundwater levels in the city of Boston; (b) protect and

enhance the city's historic neighborhoods and structures, and

otherwise conserve the value of its land and buildings; (c)

reduce surface water runoff and water pollution; and (d)

maintain public safety.'" Perry, 100 Mass. App. Ct. at 140,

quoting Article 32, § 32-1. Thus, projects in the GCOD and

subject to that article5 must be designed to "promote

infiltration of rainwater into the ground by capturing within a

suitably-designed system a volume of rainfall on the lot

equivalent to no less than 1.0 inches across that area of the

lot occupied by structures or other impervious surface."

Article 32, § 32-6(a).

Article 32, § 32-5, of the zoning code also requires that a

project regulated by that article obtain a conditional use

permit. Article 6, § 6-3, of the zoning code lists the criteria

required for approval of a conditional use permit, which

include, among others, that

5 Projects that propose to erect or extend "any structure,
where such new structure or extension will occupy more than
fifty (50) square feet of lot area" or to substantially
rehabilitate a structure must comply with Article 32. Article
32, § 32-4(a), (c).
5

"(a) the specific site is an appropriate location for such
use . . . ; (b) the use will not adversely affect the
neighborhood; (c) there will be no serious hazard to
vehicles or pedestrians from the use; (d) no nuisance will
be created by the use; [and] (e) adequate and appropriate
facilities will be provided for the proper operation of the
use."

2. The procedural history of the project. Cai's proposed

project (proposed project) included a two-story vertical

addition to the building at 9 Johnny Court and renovation of the

existing units.6 Cai submitted relevant plans to the city's

water and sewer commission and then to the board. After

reviewing the plans, a design engineer for the water and sewer

commission concluded that the plans met the groundwater storage

and recharge requirements of the GCOD. Thereafter, the board

conducted a hearing, took a view of the site, and ultimately

approved the proposed project, concluding that the infiltration

system that Cai proposed to install at 9 Johnny Court met the

requirements of the GCOD.

In addition, the board determined that the provisions of

the GCOD required Cai to satisfy the requirements for a

conditional use permit pursuant to Article 6 of the zoning code.

See Article 32, § 32-3(3). See also Perry, 100 Mass. App. Ct.

6 Cai's original plan called for the addition of two stories
to the original building and a five-story addition to the rear
of 9 Johnny Court, extending the structure into the back yard.
He abandoned plans for the rear addition, which would have
required a variance.
6

at 140. The board concluded that the proposed "project is an

appropriate use of the lot and will not adversely affect the

community or create any detriment for abutting residents," and

that "all of the conditions for the grant of a Conditional Use

Permit have been met."

The Lees appealed to the Superior Court pursuant to St.

1956, c. 665, § 11, as amended through St. 1993, c. 461, § 5.

See Crittenton Hastings House of the Florence Crittenton League

v. Board of Appeal of Boston, 25 Mass. App. Ct. 704, 705, 711-

712 (1988). In December 2021, a jury-waived trial was conducted

as to the proposed project's compliance with the GCOD and

Article 6. Prior to trial, Cai objected to the admission in

evidence of Article 43 of the zoning code, which pertains to the

Chinatown zoning district, arguing that it was not relevant

"[a]s there are no violations pursuant to Article 43." Article

43 was never introduced or admitted in evidence during the

trial. After the close of evidence, Cai submitted proposed

rulings of law to which he attached a copy of Article 43, and he

argued that that the proposed project was a residential use

allowed as of right under that article.

On December 22, 2021, at a hearing, the judge issued her

findings of fact and rulings of law by dictating them into the

record. She found that the proposed rainwater infiltration

system was adequate to recharge the groundwater. She concluded,
7

as the board had, that pursuant to Article 32, Cai was required

to obtain a conditional use permit for the proposed project.

However, unlike the board, the judge concluded that Cai had not

met the requirements to obtain one. Based on expert testimony,

the judge concluded that "there's a real risk of structural

damage to 7 Johnny Court if two stories are added to 9 Johnny

Court." The judge explained that "[t]he additional stories

would increase the load of the structure and this load would be

distributed out to the party wall that [9 Johnny Court] shares

with 7 Johnny Court." The judge further concluded that "[s]ince

there was already evidence of settlement of the row houses as

they currently exist, the risk that such damage could occur if

two additional stories were added to 9 Johnny Court is more than

just speculative. It is quite likely." Moreover, the judge

found that adding two stories to 9 Johnny Court would cause rain

and snow to accumulate in greater amounts on the roof of 7

Johnny Court and such "accumulation could cause water issues

inside that row house, depending on how watertight it was, and

it could put pressure on the area where 7 Johnny Court's roof

meets the wall that would be constructed at 9 Johnny Court for

the additional stories." The judge also found that there could

be flooding into the basement of 7 Johnny Court. For these

reasons, the judge concluded that "the [proposed] project does

not comply with Article [6,] [§ ]6-3 of the [zoning] code."
8

Furthermore, the judge found that by failing to consider these

issues, and essentially leaving it for other officials to

determine at a later time the impacts on 7 Johnny Court, the

board had "impermissibly delegate[d] [its] authority to

determine, in the first instance, whether a project complies

with the [zoning code]." The judge vacated the conditional use

permit. This appeal ensued.

Discussion. In reviewing a judge's decision on a

conditional use permit or special permit, we apply a "peculiar

combination of de novo and deferential analyses" (quotation and

citation omitted). Wendy's Old Fashioned Hamburgers of N.Y.,

Inc. v. Board of Appeal of Billerica, 454 Mass. 374, 381 (2009)

(Wendy's). See Perry, 100 Mass. App. Ct. at 143, quoting 311

West Broadway, LLC v. Board of Appeal of Boston, 90 Mass. App.

Ct. 68, 73 (2016) ("In cases brought under Boston's zoning act,

'we are guided by cases decided under the analogous provisions

of G. L. c. 40A, § 17'"). "Although fact finding in the

Superior Court is de novo, a judge must review with deference

legal conclusions within the authority of the board." Wendy's,

supra. Like the judge, we give "substantial deference" to the

board's interpretation of the zoning code. Id., quoting Manning

v. Boston Redev. Auth., 400 Mass. 444, 453 (1987).

As to the facts found by the Superior Court judge after

trial, we accept a judge's findings of fact unless clearly
9

erroneous and review de novo the judge's legal conclusions,

including her interpretations of the zoning code. See Shirley

Wayside Ltd. Partnership v. Board of Appeals of Shirley, 461

Mass. 469, 474 (2012). The judge's factual findings will be set

aside only if they are "clearly erroneous or there is no

evidence to support them" (citation omitted). Fish v.

Accidental Auto Body, Inc., 95 Mass. App. Ct. 355, 362 (2019).

"While a judge is to give 'no evidentiary weight' to the board's

factual findings, the decision of a board 'cannot be disturbed

unless it is based on a legally untenable ground' or is based on

an 'unreasonable, whimsical, capricious or arbitrary' exercise

of its judgment in applying land use regulation to the facts as

found by the judge'" (citations omitted). Wendy's, 454 Mass. at

381-382. The burden of demonstrating "that the prerequisites

were met and that zoning relief was justified" is on the

applicant. Perry, 100 Mass. App. Ct. at 143. When it comes to

assessing the seriousness of a problem, "[w]e defer to the

board's judgment only when 'reasonable minds could differ on the

seriousness of a problem in relation to the issuance of a

special permit.'" Shirley Wayside Ltd. Partnership, supra at

484, quoting Kinchla v. Board of Appeals of Falmouth, 11 Mass.

App. Ct. 927, 927 (1981).

1. Requirement of a conditional use permit. Here, the

board interpreted the zoning code to mean that the proposed
10

project must comply with the conditional use permit standards

set forth in Article 6. The judge also ruled that

"[d]evelopments occurring within a GCOD must obtain a

conditional use permit." See Perry, 100 Mass. App. at 140 ("A

proposed project located within a GCOD must obtain a conditional

use permit . . . -- the equivalent of a special permit under

G. L. c. 40A"). See also Article 32, § 32-3(3). "In contrast

with a use allowed as of right, 'a [conditional use permit]

concerns a use thought under the zoning code to be potentially

acceptable in a zoning district, but only after and subject to

review and permission of a permit granting authority, to the end

that the use applied for be compatible with the allowed uses in

the area in which it is to be planted.'" Perry, supra at 140

n.4, quoting KCI Mgt., Inc. v. Board of Appeal of Boston, 54

Mass. App. Ct. 254, 260 (2002).

In arguing that he was not required to obtain a conditional

use permit for the proposed project, Cai points to Article 32,

§ 32-3, of the zoning code, entitled "General Requirements and

Procedures." Section 32-3(3) states that any proposed project

subject to the GCOD requirements "shall obtain a conditional use

permit pursuant to the procedures set forth in Article 6 or

carry out such Proposed Project in a manner consistent with the

provisions of this article, as applicable" (emphasis added).
11

Cai points to the word "or" in this section in arguing that he

had a choice whether to obtain a conditional use permit.

We disagree. First, Article 32, § 32-5, entitled "Specific

Requirements," provides that "[a]ny of the improvements

specified in Sections 32-4(a)-(c) shall require a conditional

use permit" (emphasis added). Improvements specified in § 32-

4(a) include the "extension of any structure, where such new

. . . extension will occupy more than fifty (50) square feet of

lot area," and it is that section on which the city's

inspectional services department relied in concluding that the

proposed project had to comply with the GCOD. Cai does not

contend that the proposed project is not subject to § 32-4(a).7

While it may be that some projects that do not meet the criteria

of § 32-4(a)-(c) do not require a conditional use permit, the

proposed project is not one of them. We read the phrase "or

. . . in a manner consistent with the provisions of this

article, as applicable" in § 32-3(3) to mean that Article 32

might not apply in certain circumstances, such as where an

7 Pursuant to § 32-4(c), an applicant must also comply with
Article 32 if the project would "[s]ubstantially [r]ehabilitate
any structure" in the GCOD. Substantial rehabilitation is
defined as "alterations or repairs [that] cost more than fifty
percent (50%) of the physical value of the structure." Article
32, § 32-2. To the extent that the determinations of the board
and the judge that a conditional use permit was required may
have rested on findings that the proposed project was a
substantial rehabilitation, on the record before us, Cai has not
demonstrated that those findings were an abuse of discretion.
12

application for a permit for a project predated the creation of

the GCOD and the adoption of Article 32. See Article 32, § 32-

4(1)-(4). Those circumstances are not present here. Moreover,

to the extent that the provisions of the GCOD are ambiguous as

to whether a conditional use permit is required, by its terms,

§ 32-5 (specific requirements) controls, as it is more specific

than § 32-3(3) (general requirements). See Plainville Asphalt

Corp. v. Plainville, 83 Mass. App. Ct. 710, 713 (2013). We

agree with the board and the judge that the GCOD provisions

required Cai to obtain a conditional use permit for the proposed

project.

Cai next argues that even if the provisions of the GCOD

required a conditional use permit, that requirement cannot be

enforced because it would transform a use permitted as of right

into a conditional use. Cai contends that zoning is concerned

with uses, that his postconstruction use of 9 Johnny Court will

be a "residential use," and that it will remain allowed as of

right in the residential subdistrict of the Chinatown zoning

district. He points to Appendix D of Article 43, which he

contends sets forth the uses in the residential Chinatown

district that are permitted as of right and the uses that

require a conditional use permit, and he argues that "a use

allowed as of right cannot be made subject to the grant of a

special permit." Prudential Ins. Co. of Am. v. Board of Appeals
13

of Westwood, 23 Mass. App. Ct. 278, 281 (1986). See SCIT, Inc.

v. Planning Bd. of Braintree, 19 Mass. App. Ct. 101, 106-108

(1984).

Article 43, however, was not admitted at trial. Indeed,

the Lees listed Article 43 as a proposed exhibit, but Cai

objected to its admission as irrelevant and because its

probative value would be substantially outweighed by the danger

of confusing the issues and unfair prejudice. By attaching it

to his proposed rulings of law filed after the close of

evidence, Cai did not introduce Article 43 in evidence, nor is

there any indication that the judge was given the opportunity to

take judicial notice of Article 43.8 See City Council of

Springfield v. Mayor of Springfield, 489 Mass. 184, 190 n.6

(2022). See also Mass. G. Evid. § 202 (2022).9

8 Even if we could take judicial notice of Article 43, we
would decline to do so here. On Cai's objection, Article 43 was
not entered in evidence, and therefore the Lees had no
opportunity to introduce evidence or make legal arguments on any
issue pertaining to Article 43. Further, the judge apparently
did not take judicial notice of Article 43, as she did not
mention it in her findings of fact and rulings of law. We would
not countenance a strategy whereby a party actively and
effectively sought to exclude evidence, only to rely on that
evidence after the close of evidence and on appeal. We note
that the copy of Article 43, Appendix B, attached to Cai's brief
defines a residential use to include a "semi-detached dwelling
occupied by not more than two families on each side of a party
wall," which would seem to exclude the proposed project. We
need not reach the issue.

9 Cai's architect did testify at trial that "the addition of
two stories is allowed within the zoning district" and that the
14

As the judge noted, it is not enough to claim that the use

remains residential. While the proposed new use may remain

broadly "residential," a two-family residential structure may be

treated differently from a five-family residential structure.

See Gage v. Egremont, 409 Mass. 345, 348 (1991) (zoning district

allowed single-family and two-family uses as a matter of right

but required special permit for multifamily dwellings). Based

on the admitted evidence, we cannot say that requiring a

conditional use permit for the conversion of a two-unit dwelling

to a five-unit dwelling would transform a use permitted as of

right into a conditional use. Cai's argument, therefore, is

unavailing.

2. The Article 6 conditional use permit criteria. Having

determined that the board and the judge correctly concluded that

the proposed project required a conditional use permit, the

question becomes whether the judge correctly concluded that the

proposed project did not comply with Article 6, § 6-3, of the

zoning code. See Fish, 95 Mass. App. Ct. at 362. The judge

found that it was likely that the addition of two stories to 9

Johnny Court would have negative impacts on 7 Johnny Court.

These negative impacts included possible flooding to the

five proposed units are also allowed "within that district."
Where the judge made no finding to that effect, however, we
cannot assume she found the architect to be credible in this
regard.
15

basement of 7 Johnny Court, settlement from the increased load

resulting in "at the very least . . . cracks in the brickwork

and, if substantial enough, . . . serious structural damage of 7

Johnny Court," and water infiltration resulting from increased

accumulation of water and snow on the roof. Those findings,

supported by abundant evidence including expert testimony, are

not clearly erroneous10 and compel the conclusion that the

proposed two-story vertical addition to 9 Johnny Court would

adversely affect 7 Johnny Court.11

Cai argues, however, that whether 7 Johnny Court is

affected by the proposed project is dependent on engineering,

design, and construction methods and practices that are not at

issue in a zoning appeal. In other words, Cai argues that any

10The Lees' expert, James Lambrechts, a geotechnical
engineer and a professor of civil engineering, testified that
"[i]t is quite likely that there's going to be some additional
settlement since we already see that there's been some
settlement of Number 9 that exists." He also opined that the
recharge system would "push water . . . [into] the basement
areas if the elevations aren't tak[en] into account properly,"
and that "there is a potential for having snow drift up against
that brick wall [between the two houses] and then piling up on
the roof of Number 7," a roof that already had some sagging, to
create additional weight on the roof of 7 Johnny Court.

11The judge did not specify which conditions of Article 6,
§ 6-3, that the proposed project failed to satisfy. Based on
the judge's factual findings, the granting of a conditional use
permit was unjustified for at least any of three potential
reasons: the site was not appropriate for the proposed new use,
see § 6-3(a); the use would have an adverse effect on the
neighborhood, § 6-3(b); or the use would create a nuisance, §6-
3(d).
16

structural issues are governed by the State building code

(building code) and not the zoning code, and therefore the judge

exceeded the scope of the board's review when she concluded that

there would be adverse impacts on 7 Johnny Court. Cai contends

that any structural issues would be addressed through other

proceedings, apparently meaning those involving the building

code, although he does not identify specifically what

proceedings he means.12

It is true that the building code generally addresses

structural issues and the zoning code addresses uses. See

Cartensen v. Cambridge Zoning Bd. of Appeals, 11 Mass. App. Ct.

348, 356-357 (1981), quoting Enos v. Brockton, 354 Mass. 278,

280-281 (1968) ("the building code and zoning laws have

different purposes and procedures. 'Whereas the main purpose of

zoning is to stabilize the use of property and to protect an

area from deleterious uses [citations omitted], a building code

"relates to the safety and structure of buildings"'"). See also

Rinaldi v. Board of Appeal of Boston, 50 Mass. App. Ct. 657,

660-661 (2001) (rejecting argument that proposed alterations

12At oral argument, Cai's counsel contended that the
inspectional services department would not allow the proposed
project to go forward if the proposed project would adversely
affect 7 Johnny Court, i.e., that no engineer would sign off on
it. Cai does not assert that the owners of 7 Johnny Court would
have notice or standing to be heard in any such inspectional
services department proceedings; rather, he asserts that they
should "trust in the system."
17

were in violation of building code, in addressing claim that

zoning variance should have been denied). The Lees do not claim

that the proposed project violates the building code.

Cai's insistence that the Lees' concerns about the proposed

project could be dealt with in future proceedings involving the

building code would render meaningless Article 32, § 32-5,

pertaining to the GCOD, and Article 6, § 6-3, pertaining to

conditional use permits. As discussed above, considerations for

granting a conditional use permit include whether the specific

site is an appropriate location for such use and whether the use

will adversely affect the neighborhood. Noise, dust, and other

nuisances have justified the denial of a special permit. See

Uxbridge v. Griff, 68 Mass. App. Ct. 174, 177 (2007), and cases

cited. Physical impacts to 7 Johnny Court more directly bear on

whether the proposed project is appropriate and safe for the

site. We discern nothing in the zoning code that prohibited the

board or the judge from considering the location of the proposed

project and its impacts on the neighborhood, including the

likely impact of a two-story vertical addition at 9 Johnny Court

on the stability of 7 Johnny Court, with which it shares a party

wall. The judge did not exceed her authority in determining

that 9 Johnny Court was not an appropriate site for the proposed

project, and her findings of fact on that issue were not clearly

erroneous. Lastly, her conclusion that the proposed project at
18

9 Johnny Court would likely have negative impacts on 7 Johnny

Court was reasonable.13

Judgment affirmed.

13Because of the result we reach, we need not consider
Cai's argument that, to the extent the board's decision
concluded that a conditional use permit was required, the
decision was flawed because the board supposedly delegated its
authority to other officials.