Carvalho v. Town of Lincoln, PC 00-5899

CourtSuperior Court of Rhode Island
Writing for the CourtSAVAGE, J.
Docket NumberPC 01-1136,PC 00-5899
Decision Date23 January 2013




Nos. PC 00-5899, PC 01-1136

Superior Court of Rhode Island

January 23, 2013



In the remaining claims in these consolidated actions, Plaintiff Eddy Carvalho contends that the Town of Lincoln and various public officials deprived him of his right to develop a subdivision on his property in violation of his rights to substantive due process, procedural due process, and equal protection as secured by the Fifth and Fourteenth Amendments to the United States Constitution, thereby entitling him to damages under 42 U.S.C. § 1983. For the reasons set forth in this Decision, this Court denies and dismisses Plaintiffs § 1983 claims.


This case arises out of a lengthy and complex land development dispute between Mr. Carvalho and the Defendants.[1] The saga began over seventeen years ago, on April 4, 1995, when Mr. Carvalho filed an application with the Planning Board for development of a subdivision to be called "Forest Park Estates." At that time, Mr. Carvalho owned thirty-six unimproved acres of land shown on Assessor's Plat 20 Lot 15, zoned as RS-20, [2] and located on Breakneck Hill Road in Lincoln, Rhode Island ("Property"). See 00-5899 Compl. ¶¶ 2-3. About half of the Property, roughly eighteen acres, contained wetlands. (Trial Tr. 27-28, Dec. 2, 2010.) Mr. Carvalho obtained pre-application approval from the Planning Board on May 10, 1995 for a twenty lot subdivision.[3] (Board Minutes, 5/10/1995, Joint Ex. 1.)

At the time the Planning Board approved Mr. Carvalho's pre-application, the 1986 Subdivision Ordinance of the Town of Lincoln was in effect ("Old Regulations"). See 00-5899 Compl. ¶ 5. Subsequently, the Town adopted new Planning and Subdivision Regulations which became effective on December 28, 1995 ("New Regulations"). See 2001 W.L. 1097788 at *1. The New Regulations introduced several significant new requirements: namely, that a developer (1) have infrastructure and roads in place prior to recording his or her plat; (2) not post a bond prior to recording the plat; (3) use below ground utilities; and (4) use granite curbing.[4] See "Lincoln Subdivision Design Standards Comparison, " Joint Ex. 9.

On June 11, 1996, Mr. Carvalho took the next step in the planning process by submitting his Master Plan to the Planning Board for approval.[5] (Letter from Crossman Engineering to Lucinda Hannus, June 11, 1996, Pl.'s Ex. 8.) Shortly thereafter, in a letter dated June 24, 1996, Donald D'Anjou, the Supervisor for the Lincoln Sewer Department, a division of the Lincoln Department of Public Works ("D.P.W."), informed Mr. Carvalho's engineer that the Town had rejected Mr. Carvalho's planned sanitary sewer system for the proposed subdivision. (Letter from Donald D'Anjou, June 24, 1996, Joint Ex. 3.) Several months later, on September 25, 1996, Mr. Carvalho appeared before the Planning Board for a hearing on his Master Plan. At that hearing, the Planning Board indicated that approval of Mr. Carvalho's proposed sewer system was a matter for the D.P.W. to decide and that the Planning Board would follow the D.P.W.'s recommendation. (Board Minutes, 9/25/1996, Joint Ex. 1.) At the Planning Board's next two regular monthly meetings in December 1996 and January 1997, it voted to continue consideration of Plaintiffs Master Plan to a later date. (Board Minutes, 12/18/1996 and 1/22/1997, Joint Ex. 1.)

When the Planning Board next met on February 26, 1997, it discussed whether the Old or New Regulations should apply to Mr. Carvalho's proposed subdivision. (Board Minutes, 2/26/1997, Joint Ex. 1.) Mr. Carvalho's counsel at the time, Andrew Teitz, argued to the Planning Board that Mr. Carvalho should be allowed to proceed under the Old Regulations because he had expended substantial resources in reliance on the Board's approval of his pre-application. Id The Planning Board, however, rejected Mr. Teitz's suggestion and voted that Mr. Carvalho's proposal must proceed under the New Regulations. Id Mr. Carvalho appealed the Planning Board's decision to the Lincoln Zoning Board, sitting as the Planning Board of Appeals ("Zoning Board"). (Lincoln Def's Post-Trial Mem. 4). In May 1997, the Zoning Board reversed the Planning Board's decision and determined that Mr. Carvalho's proposed subdvision should proceed under the Old Regulations.[6] (Tr. 27, Dec. 1, 2010.)

On November 19, 1997, Mr. Carvalho returned to the Planning Board for the next stage of the planning process: approval of his Preliminary Plan.[7] (Board Minutes, 11/19/1997, Joint Ex. 1.) At that hearing, the Planning Board reiterated that approval of Mr. Carvalho's proposed sewer system was subject to the recommendation of the D.P.W.[8] Id Additionally, Planning Board member George Weavill informed Mr. Teitz that the Department of Transportation ("D.O.T.") had plans to pave Breakneck Hill Road sometime in the near future.[9] Id

On January 28, 1998, when the Planning Board next considered Mr. Carvalho's application, Mr. Teitz informed the Planning Board that it was obligated under the Old Regulations to return to Mr. Carvalho a stamped copy of his plan, indicating any conditions imposed or modifications required, within forty-five days of receipt, and that as of that date, fifty-six days had elapsed without return of the stamped copy of the plan.[10] Id Mr. Teitz also stressed to the Planning Board that time was of the essence because Mr. Carvalho had a permit from the Department of Environmental Management ("D.E.M.") for the proposed subdivision that was set to expire on June 1, 1998. Id

At the Planning Board's next two hearings in February and March of 1998, the Board heard extensive discussion about Mr. Carvalho's proposed sewer system, including presentations from several experts. (Board Minutes, 2/25/1998 and 3/25/1998, Joint Ex. 1.) Mr. Carvalho wanted to install a so-called "grinder pump system, " while the D.P.W. recommended a conventional "gravity" sewer system connected to a Town pumping station. Id Grinder pumps are essentially individual septic systems installed on the property of each house. (Tr. 10, Dec. 2, 2010.) A low pressure grinder pump system allegedly would have saved Mr. Carvalho approximately $182, 500, as compared to a conventional gravity system. See Crossman Engineering Inc. Cost Analysis, June 26, 1996, Joint Ex. 4. One of Mr. Carvalho's experts, Keith Dobie, opined that a low pressure grinder pump system is particularly appropriate for environmentally sensitive areas, such as wetlands, and only requires maintenance about once every ten years. (Board Minutes, 2/25/1998, Joint Ex. 1.) Additionally, Mr. Carvalho's engineer, Steven Cabral, expressed his opinion that a conventional gravity system with a pumping station would be more of a burden to the Town than Mr. Carvalho's proposed sewer system. (Board Minutes, 3/25/1998, Joint Ex. 1.) Finally, Anthony Silva, the Superintendent of Water Pollution Control for the Town of Bristol, informed the Planning Board that there are approximately forty low pressure pumps operating in Bristol, with minimal problems, and that in his opinion, such pumps provide service comparable to that provided by the Town of Lincoln's sewer system. (Board Minutes, 3/25/1998, Joint Ex. 1.) Robert Schultz, the Director of the D.P.W., acknowledged that the D.P.W. has allowed grinder pumps in certain circumstances but expressed D.P.W.'s preference for requiring Mr. Carvalho to tie-in to the Town's sewer system. He informed the Planning Board that the D.P.W. had made a commitment to provide the Town of Lincoln with high quality town-wide sewer service and, to that end, had made a significant investment in the current sewer system. (Board Minutes, 2/25/1998, Joint Ex. 1.) He disagreed with the assertion that grinder pumps would provide the same level of service. Id

At the February hearing, Mr. Cabral reminded the Planning Board that Mr. Carvalho's permits from the D.O.T. were set to expire in June; at the March hearing, Mr. Teitz reiterated that time was of the essence because the D.O.T. planned to pave Breakneck Hill Road that coming summer.[11] (Board Minutes, 2/25/1998 and 3/25/1998, Joint Ex. 1.) Mr. Teitz indicated that once the D.O.T. completed the paving, it would be cost prohibitive for Mr. Carvalho to dig up the road, install the sewer line, and repave the road. (Tr. 46, 49-50, Dec. 2, 2010.)

Approximately one month later, in a letter dated April 7, 1998, Mr. Schultz informed the Planning Board that the D.P.W. was recommending against approval of the planned sewer system for Mr. Carvalho's proposed subdivision. (Letter from Robert Schultz, April 7, 1998, Joint Ex. 7 at 2.) Specifically, Mr. Schulz expressed his concern that the additional flow from Mr. Carvalho's proposed development would overburden the Town's pumping station at nearby Butterfly Estates, and thus, if Mr. Carvalho wanted to tie in the sewer system for his proposed subdivision at that location, the Butterfly Estates station would need to be substantially upgraded. See id at 2. Mr. Schultz also reiterated that the Town had expended considerable resources to provide a high quality gravity sewer system to service 98.5% of its citizens and thus would only allow the type of pumps that Mr. Carvalho proposed in extraordinary circumstances. Id.

At the Planning Board's hearing on April 22, 1998, the Board indicated that it was in receipt of Mr. Schultz's recommendation. (Board Minutes, 4/22/1998, Joint Ex. 1.) Mr. Teitz then informed the Planning Board that he had never received a copy of Mr. Schultz's recommendation. Id At that meeting, the Planning Board noted that there were three major issues that needed to be resolved prior to holding a public hearing[12] on Mr. Carvalho's application: (1) the sewer system; (2) open space dedication; and (3) storm drainage. [13] Id

Shortly after the April 22,...

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