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Court approves Back Bay development; says mistakes by judge, zoning board like water under the bridge, or, in this case, under the buildings

The Massachusetts Appeals Court ruled today a three-story mixed-use extension to buildings along Hereford Street are OK despite what it said some glaring errors by a lower-court judge and the city Zoning Board of Appeal, because the project complies with the neighborhood's groundwater zoning.

Patrick Glynn, who owns several buildings and a parking lot along Hereford Street at Newbury Street, actually completed the residential and commercial addition to 51 and 53 Hereford St. in 2019; the wheels of justice, in this case progress on a suit by a neighbor ground a little more slowly.

In 2014, the Zoning Board of Appeal approved the project, ruling that it would actually exceed the minimum amount of rainwater required to be injected into the ground - vital in the Back Bay, as the court explained:

Preservation of groundwater levels is particularly important in the Back Bay, because the buildings rest on wooden pilings, which must be immersed in groundwater to prevent them from rotting. The construction on and paving of properties diminishes the amount of pervious area available for rainwater to infiltrate the ground, so alternative engineering is needed to ensure that groundwater is recharged.

Samuel Perry, who owns the neighboring 323-327 Newbury Street - home to Sonsie - sued to stop the Glynn project.

In its ruling today, the appeals court noted the variety of legal issues Perry raised but said that, "cleared of the underbrush," the central issue was whether Glynn's proposal complied with the city's requirements for "recharging" the ground with rainwater. It concluded, based on evidence presented during a trial on the matter in Suffolk Superior Court, that it did.

The court ruled that, if anything, Glynn's proposal would infuse the surrounding land with 20% more water than required under the zoning code.

Yes, the court said, the judge in the case made some mistakes, but none hindered Perry from proving that the project would not meet the requirements, which the court said he failed to do.

While true that some spouts on the front of the building would continue to dump rainwater into storm sewers, which would carry the rain far away from the Back Bay, the overall project still met the city code and then some, the court said, concluding that while the city code sets minimums for groundwater recharging by falling rain, it does not require all the rain that falls on a particular property to be allowed to run into the ground below.

And, yes, the court agreed with Perry, the zoning board screwed up by not letting his attorney make his case at the zoning hearing back in 2014. Bad zoning board, the court said.

To be sure, the board erred in failing to allow Perry's attorney to present any evidence he might have had regarding the impacts on groundwater at Perry's property. The purpose of the hearing, among other things, was to evaluate that precise issue, and as an abutter Perry should have been afforded a reasonable opportunity to be heard.

But Perry himself then cured this problem by appealing the decision to Superior Court - where the judge, Robert Ullmann, was required to act as a sort of hearing officer and hear all the evidence by both sides, which he did, the court continued.

Here, the judge found no prejudice because Perry had the opportunity in the Superior Court to present any evidence and to raise any issue that he would have raised to the board. The judge concluded, "Perry had the opportunity at the de novo hearing before this [c]ourt to prove that the Proposed Project would have a negative impact on groundwater levels on the Perry Property, and he did not prove it."

The court also rejected Perry's argument to kill the project because Glynn actually made things worse in the surrounding area in 2006 when he paved over part of his property without permission in 2006 - for which ISD cited him in 2010.

[City code] specifically requires an evaluation of the "impact" from the "Proposed Project." The comparison accordingly is between the existing conditions immediately preproject, and the conditions postproject. Perry's suggestion to pick an existing condition from years earlier is inconsistent with the language of the code, and would result in an evaluation, not of the impact of the project, but of some other change to the property that took place years earlier. There are other potential remedies that may have been available to Perry with respect to Glynn's 2006 actions; but the remedy is not to jerry-rig the comparison required by [the code].

The court also rejected his argument that Glynn's project would somehow make the groundwater conditions under his building worse. Groundwater flows horizontally, the court reasoned, so a neighboring project that actually increases the amount of water going into the ground could only help conditions next door.

PDF icon Complete ruling97.61 KB


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