Eagle of North Realty Trust v. State

EAGLE OF THE NORTH REALTY TRUST, ET AL. v. STATE OF RHODE ISLAND, ET AL.

C.A. No. PC 07-1426

Superior Court of Rhode Island

June 14, 2012

DECISION

CLIFTON, J.

Appellant Eagle of the North Realty Trust and the MacLean Family Trust (collectively "the Trust"), appeals the February 19, 2007 Final Agency Decision and Order of the Rhode Island Department of Environmental Management ("DEM") denying the application for variances to install an individual sewage disposal system ("ISDS") on real property located in the Town of South Kingstown, Rhode Island. Jurisdiction is pursuant to R.I. Gen. Laws 1956 § 42-35-15.

I Facts and Travel

The instant case involves two lots of land, identified as Lot 60 and 61 on assessor's plat 95-1 of the Town of South Kingstown. Both lots are held in trust for the benefit of the MacLean family. The MacLeans live on Lot 60 that is owned by the MacLean Family Trust. Both lots are located adjacent to Green Hill Pond, which has been designated a critical resource area by the DEM.

The home on Lot 60 is currently serviced by an existing cesspool. The home that used to be on Lot 61 was destroyed in the Great Hurricane of 1938. When the MacLeans acquired the property their intent was to build on Lot 61 in order to provide a home for the MacLean children. To that end, in 2003, the MacLeans submitted an application for the right to install an ISDS on Lot 61. The application was denied.

Following the 2003 denial, the Trust submitted the instant Application for a permit to install an ISDS to service two single-family residences, the current residence on Lot 60 and another residence to be constructed on Lot 61. See DEM Final Agency Decision, No. 05-017/ISA (February 19, 2007) ("Agency Decision") at 1. The Trust requested several variances from the existing Rules and Regulations Establishing Minimum Standards Relating to Location, Design, Construction, and Maintenance of Individual Sewage Disposal Systems ("ISDS Regulations"). Specifically, the Trust requested the following variances from the ISDS Regulations: (1) S.D. 2.14 (requiring that an ISDS be located no closer than 100 feet from any existing well); (2) S.D. 19.02 (outlining special requirements for an ISDS in a critical resource area, such as Green Hill Pond); (3) S.D. 19.02.4 (requiring that an ISDS be at least 150 feet away from the Pond; and (4) S.D. 19.02.5 (requiring that an ISDS shall not be placed in any area where the groundwater table is within five (5) feet of the original ground surface.

The application and variances were denied by the DEM Office of Water Resources ("OWS") on August 29, 2005. See Agency Decision at 2. The denial letter stated that the Trust had failed to provide convincing evidence to demonstrate that the public interest and the public health could be adequately protected as required by the ISDS Regulations. See Agency Decision at 2-3.

Following the August 2005 denial, the Trust timely appealed to the DEM Administrative Adjudication Decision ("AAD") and a hearing on the appeal was conducted on December 13, 2005. See id. at 3. At the hearing, the Trust asserted that conditions on the site had changed since the August 2005 denial and requested permission to amend the Application to reflect existing site conditions. The request was granted. See id.

The revised Application was resubmitted to the OWS that denied it on July 28, 2006. On August 15, 2006, the Trust appealed the denial of the revised Application to the AAD. See id. On appeal to the AAD, the Trust, as the Applicant, bore the burden of proof to demonstrate through clear and convincing evidence that: (1) a literal enforcement of the ISDS Regulations will result in unnecessary hardship to the Applicant; (2) that the system will function as proposed in the Application; and (3) that permitting variances from the requirements of the ISDS Regulations will not be contrary to the public interest, public health, and the environment. See id. at 4. In order to demonstrate that the proposed ISDS will not be contrary to the public interest, public health, and the environment, the Applicant must introduce clear and convincing evidence that:

1. The waste from the proposed system will not be a danger to public health;

2. The proposed ISDS will be located, operated, and maintained so as to prevent the contamination of any drinking water supply;

3. The waste from the proposed system will not pollute any body of water;

4. The waste from the proposed system will not interfere with the public use and enjoyment of any recreational resource; and

5. The waste from the proposed ISDS will not create a public or private nuisance. See Agency Decision at 4.

In accordance with AAD procedures, the hearing on the appeal of the denial of the revised Application was convened on October 16, 2006. At the hearing, the AAD Hearing Officer heard testimony from Mr. William D. Dowdell, Mr. Mohammed J. Freij, and from Mr. MacLean.

Mr. Dowdell, an expert civil engineer and an expert in ISDS installation and design, testified on behalf of the Trust. Mr. Dowdell explained that the revised Application was submitted as an "alteration" application because it altered an existing cesspool serving an existing residence. See Hearing Tr., December 13, 2005, at 18. Mr. Dowdell further explained that the Application proposed replacing the existing cesspool with a "bottomless sand filter septic system" to service both the existing house and the house to be constructed. See id. at 18-19. Mr. Dowdell asserted that the Application was submitted specifically as an alteration because it was increasing by one bedroom the net number of bedrooms on both properties which were serviced by the proposed ISDS and because the Trust believed that the OWS would not deny an alteration. See id.

Mr. Dowdell gave as his expert opinion that the proposed system would be an improvement over the existing cesspool because the proposed system would improve the setback to Green Hill Pond by doubling the setback distance to the Pond from twenty-five (25) feet to fifty (50) feet, increasing the setback distance from any wells in the area to seventy (70) feet, and because the new system would pre-treat the effluent. See id. at 20-22. Mr. Dowdell further stated that it would be impossible for any improvement to the existing cesspool or any new septic system to be installed in compliance with the ISDS Regulations because both lots abut Green Hill Pond. See id. at 25-29.

Mr. Freij, a Principal Engineer in the OWS who had reviewed the Application and recommended that it be denied, also testified. Mr. Freij acknowledged that it would be impossible for any system to comply with the ISDS Regulations given the size of the lots. See Hearing Tr., Dec. 13, 2005, at 52. Mr. Freij explained that in his view, the Application could not be classified as an alteration because it was proposing a new house on a separate lot. See id. at 55. Mr. Freij further explained that two separate dwellings with two bedrooms each will produce more effluent than a single dwelling with four bedrooms. See id. Mr. Freij testified that because each of the requested variances reduces the minimum setbacks required by the ISDS Regulations, he believes that as a whole, the proposed system would not be as protective of public health and the environment. Mr. Freij admitted, however, that the proposed system would still improve existing conditions. See id. at 81.

Mr. MacLean testified that he wanted two independent structures on the two lots because he planned to give the two lots to his two daughters. See Hearing Tr., Dec. 13, 2005, at 112. He further testified that aside from construction, there were no uses of Lot 61 that were available to him except as parking for a car or boat. See id.

The AAD Hearing Officer issued the DEM Final Agency Decision on February 19, 2007. The Decision made twenty-nine (29) findings of fact. The Hearing Officer found that the Trust had not proven by clear and convincing evidence that the proposed system would not harm the public health and the environment, and denied the Application.

The Trust timely filed the instant appeal with this Court pursuant to G.L. § 42-35-15.

II Standard of Review

This Court "sits as an appellate court with a limited scope of review" when reviewing the decisions of an administrative agency such as the DEM. Mine Safety Appliance Co. v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). Appellate review of agency actions is governed by the Rhode Island Administrative Procedures Act, § 42-35-1 et seq. See Islein v. Retirement Bd. of Employees' Retirement System of Rhode Island, 943 A.2d 1045, 1048 (R.I. 2008) (citing Rossi v. Employees' Retirement System of Rhode Island, 895 A.2d 106, 109 (R.I. 2006)). The applicable standard of review codified at § 42-35-15(g) provides:

"(g) The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inference, conclusions or decisions are:

(1)In violation of constitutional or statutory provisions;

(2)In excess of the statutory authority of the agency;

(3)Made upon unlawful procedure;

(4)Affected by other error of law;

(5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or

(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion."

"In essence, if „competent evidence exists in the record the Superior Court is required to uphold the agency's conclusions.'" Auto Body Ass'n of Rhode Island v. State of...