Perry v. Glynn, 121219 MASUP, 2014-04016-H

Docket Nº:CIVIL ACTION 2014-04016-H
Opinion Judge:Robert L. Ullmann, Justice
Party Name:Samuel D. PERRY, Plaintiff, v. Patrick J. GLYNN, et al., Defendants.
Case Date:December 12, 2019
Court:Superior Court of Massachusetts

Samuel D. PERRY, Plaintiff,


Patrick J. GLYNN, et al., Defendants.

CIVIL ACTION No. 2014-04016-H

Superior Court of Massachusetts, Department of Trial Court, Suffolk

December 12, 2019


Robert L. Ullmann, Justice


The structures of Boston’s Back Bay neighborhood stand on untold thousands of wooden piles, hardwood shaped like short telephone poles. Trinity Church alone has 4,500 such piles as support. Unlike above-ground telephone poles, these piles require immersion in water to be properly preserved; they deteriorate when exposed to air.

Decades of building construction and road paving deprived the Back Bay’s piles of rainwater that would otherwise have seeped into the soil. In response, in 2006, the City of Boston created a Groundwater Conservation Overlay District ("GCOD") covering much of the Back Bay, codified at Boston Zoning Code Article 32 ("Article 32"). The purposes of the article were 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." Article 32, § 32-1.

Pursuant to Article 32, no significant construction or restoration project within the GCOD can proceed without a conditional use permit ("CUP"), which is issued by the Boston Zoning Board of Appeals ("ZBA") after a hearing. Id., § 32-4 and 32-5. To obtain a CUP, the applicant must satisfy three requirements, subject to limitations not relevant in this case. First, the property owner must present plans for an appropriately designed, i.e., properly engineered, rainwater infiltration system that will allow rainwater to seep into the soil.1 Id., § 32-6(a). Second, the rainwater infiltration system must be capable of catching sufficient rainwater based on the surface area of the land on which the proposed project will be constructed.2 Id. Third, the proposed project must result in no negative impact on groundwater levels on the project site or adjacent lots. Id. § 32-6(b).

The plaintiff, Samuel D. Perry ("Perry"), challenges ZBA’s issuance of a CUP to the defendant, Patrick J. Glynn ("Glynn"), in September 2014 for a building restoration and refurbishment project (the "Proposed Project") on land adjacent to land that Perry has owned for many years (the "Perry Property"). While Perry makes numerous arguments, his most substantive argument in this Court’s view is based on ZBA’s interpretation of Article 32 that a suitably designed stormwater infiltration system that captures sufficient rainwater based on the surface area of the project site is presumed to cause no negative impact on groundwater levels on the project site lot or adjacent lots. Another way of saying this is that, by satisfying the two conditions of Article § 32-6(a), the applicant is presumed to have satisfied the condition of Article § 32-6(b). Based on the below Findings of Fact and the applicable law, this Court concludes that, at least under the circumstances of this case, ZBA’s interpretation of Article 32, § 32-6 is the most reasonable interpretation of that provision. Therefore, the CUP for the Proposed Project was properly issued and ZBA’s decision to issue a CUP for the Proposed Project will be AFFIRMED .

Procedural History

Substantial portions of the pre-hearing procedural history are set forth in the Agreed-Upon Findings of Fact and are not included here. Glynn’s application with the City of Boston Inspectional Services Department ("ISD") for a building permit was denied as a matter of course because the property was within the GCOD. ZBA held a hearing on Glynn’s appeal on September 23, 2014 (the "ZBA Hearing"). Agreed Fact ¶ 6; Exhibit 5. At the conclusion of the hearing, ZBA voted to grant Glynn a CUP for the Proposed Project. Hearing Transcript ("TR") 52:19-22. ZBA issued its written decision (the "ZBA Decision") on December 3, 2014, and Perry timely appealed.

In accordance with Boston Zoning Enabling Act § 11, this Court conducted a de novo evidentiary hearing, which was held in May 2019, and included five witnesses and 32 exhibits. On August 9, 2019, the parties filed a joint pleading with 46 agreed-upon findings of fact (Docket # 60). Each party also filed a pleading with additional disputed findings of fact and proposed rulings of law (Docket # 59, 61-63). On September 10, 2019, the Court issued a Procedural Order setting forth an additional 26 proposed Findings of Fact, based on the post-trial submission of the parties, and further requesting that the parties each submit a letter by October 2, 2019 addressing (1) whether any evidence admitted at trial casts substantial doubt on the validity of any of the 26 additional proposed Findings of Fact, and (2) whether the party believes that any further Findings of Fact are necessary or highly significant for a ruling in favor of the proponent of the further proposed Finding of Fact. On October 2, 2019, Perry submitted a letter questioning nine of the Court’s 26 additional proposed Findings of Fact and listing 78 of its previously identified 90 disputed findings of fact (essentially all of Perry’s proposed disputed findings not adopted by the Court) as necessary or highly significant for a ruling in his favor, with cites to the record. Glynn submitted a letter explaining his concerns about five of the Court’s 26 additional proposed Findings of Fact.

The Court heard closing arguments on November 18, 2019.

Agreed-Upon Findings of Fact

1. Perry has owned 323-327 Newbury Street, Boston, MA (the "Perry Property"), which directly abuts the properties known as 45-53 Hereford Street, Boston, MA ("Hereford Street Properties") since 1968. Pre-trial Conference Memorandum dated February 13, 2019 ("PTC Agreed Fact") at ¶ 1; Trial Transcript ("TR") 737:20-24; 780:1-3.

2. On April 2, 2014, Glynn filed an application with ISD for a building permit for the restoration and refurbishment of 45, 47 and 49 Hereford Street (with existing 18 residential units), and construction of a retail and office building addition to be attached to the existing buildings on lots 51 and 53 Hereford Street (the "Proposed Project or the "project"). PTC Agreed Fact ¶ 2; TR 13:6-18; Exhibits 2, 5, 6.

3. The Proposed Project is located within the GCOD. TR 15:21-24; Exhibit 1 at Boston Zoning Code Article 32, § 32-1.

4. ISD denied Glynn’s application by letter dated April 14, 2014 ("Zoning Code Refusal letter"), indicating that the Proposed Project was located in the GCOD under Article 32, § 32-4 of the Boston Zoning Ordinance. PTC Agreed Fact ¶ 3; Exhibit 2.

5. An application for a building permit within the GCOD is automatically denied by the ISD. TR 346:23 - 347:8.

6. On April 18, 2014 Glynn appealed ISD’s denial of the building permit to the ZBA. PTC Agreed Fact ¶ 4; Exhibits 2, 5.

7. The ZBA scheduled a hearing on Glynn’s appeal for September 23, 2014. PTC Agreed Fact ¶ 6; Exhibit 5.


To continue reading