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Judge allows Children’s to move ahead with Prouty Garden project

Prouty Garden at Boston Children’s Hospital is considered a tranquil green space.
Prouty Garden at Boston Children’s Hospital is considered a tranquil green space.Bill Greene/Globe Staff/File/Boston Globe

A judge on Monday allowed Boston Children’s Hospital to move ahead with a controversial project to construct a new clinical building over a healing garden beloved by many patients, their families, and hospital employees.

A group of taxpayers advocating to save the Prouty Garden sued the hospital in Suffolk Superior Court last month, arguing that Children’s Hospital had illegally begun construction before gaining approval from the state Department of Public Health. The group asked for a court injunction to halt the project.

Judge Kenneth W. Salinger said in his ruling Monday that garden supporters so far failed to prove that the hospital is acting illegally and denied the injunction.

But the case remains open, and the judge could reconsider his ruling if the plaintiffs present additional evidence in the future.

Gregor McGregor, a lawyer for the garden supporters, called that part of the judge’s decision a “silver lining.”

“He ruled that the garden supporters have not yet presented enough evidence,” McGregor added in a statement, “but this does not mean that the court won’t issue an injunction against the hospital in the future, if we can prove legal violations on the merits of the case.”

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Children’s Hospital, which had asked the judge to dismiss the lawsuit altogether, said in a statement that it was “pleased that the court’s decision today will allow this project to continue.”

McGregor said the garden supporters now plan to move to the discovery phase of the lawsuit, which will require the hospital to produce documents and answer questions under oath. Court proceedings are likely to continue for months.

Meanwhile, Children’s is seeking state approval for the $1 billion expansion of its campus in Boston’s Longwood neighborhood, including a new 11-story clinical building on the site of the Prouty Garden. The approval process with the Department of Public Health began in December and is still pending. In court filings, the hospital said it is simply doing preliminary site preparation and will not permanently close the Prouty Garden until the approval process is complete.

Public health officials have asked Children’s to submit an independent cost analysis of the expansion project, to show that the plans are consistent with the state’s efforts to contain health care costs. Children’s is the dominant pediatric medical center and one of the most expensive hospitals in Massachusetts.

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State health officials did not comment on the judge’s ruling and said only that they are still reviewing the project.

Hospital executives have said they are running out of space to provide care as they gain new patients. The proposed expansion would add dozens of hospital beds, private patient rooms, and new clinical spaces. Children’s plans to build a rooftop garden, a ground-level garden, and new indoor green spaces as part of the project.

“For more than three years, Boston Children’s has pursued our project to build a clinical building on our Longwood campus to meet the needs of our patients and staff and the growing demand for our care,” spokesman Rob Graham said in a statement. “Throughout the public process we’ve earned approval at every step of the way.”

Hospital executives say that building over the Prouty Garden is their only option because other sites were too expensive, too far away, and would require lengthier construction.

But advocates of Prouty Garden, a tranquil green space with towering trees, are still pressing the hospital to find an alternative.

“This is a preliminary ruling,” said Gus Murby, a garden supporter who is involved in the lawsuit. “The bottom line for us is we don’t feel this is over yet.”

Murby’s 17-year-old son died in the garden in 2007, after battling leukemia.

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“There are people like me who walk through the doors of Children’s Hospital every day and are going to hear something they don’t want to hear,” Murby said. “If Prouty Garden is not here for them, it’s going to be a much darker experience.”


Priyanka Dayal McCluskey can be reached at priyanka.mccluskey@globe.com. Follow her on Twitter @priyanka_dayal.