Lee v. Cai ( 2023 )

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
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.