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revision and are superseded by the advance sheets and bound 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 

10 The 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.

11 The 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 

12 At 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.

13 Because 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.