Cullen v. Town Council of Town of Lincoln
Decision Date | 15 March 2006 |
Docket Number | No. 2001-212-M.P.,2001-212-M.P. |
Citation | 893 A.2d 239 |
Parties | John J. CULLEN et al. v. TOWN COUNCIL OF the TOWN OF LINCOLN. |
Court | Rhode Island Supreme Court |
Stephen H. Burke, Esq., for Petitioners.
Anthony DeSisto, Esq., Providence, for Respondent.
Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.
This rather irritable bout1 finds itself pumped back up to this Court upon a petition for further review following an initial remand in Cullen v. Town Council of Lincoln, 850 A.2d 900 (R.I.2004) (Cullen I), to the respondent, Town Council of the Town of Lincoln (council), for adequate findings of fact and conclusions of law. The initial writ concerned the council's denial of the application of the petitioners, John J. Cullen and Roland Montigny (petitioners), to tie into the Town of Lincoln's (town) sewer system in connection with a proposed subdivision, Whipple Cullen Farm. For the reasons set forth herein, we affirm the decision of the council.
A detailed recitation of the facts of this case can be found in Cullen I, 850 A.2d at 902-03. We discuss only those pertinent factual developments since our remand in Cullen I.
Following our instructions, on August 31, 2004, the council held further hearings on petitioners' application to tie into the town's sewer system submitted pursuant to section 19-96, article II, chapter 19 of the Town of Lincoln Code of Ordinances (sewer ordinance). The proposed sewer route at issue would empty the subdivision's effluent into the Lower River Road pumping station (pump station), which is precariously poised approximately twenty feet from the banks of the Blackstone River.
As anticipated in Cullen I, 850 A.2d at 905, a significant source of contention at the remand hearing was petitioners' persistent failure to apply to the Department of Environmental Management (DEM) for approval of three alternate sewer routes that would require traversing state-protected wetlands; each of these three alternate routes would be powered simply by gravity, thereby eliminating the need for a pump station connection. Richard Cohen (Cohen), the subdivision engineer, testified on behalf of petitioners that an application to DEM for permission to construct any of the three alternate routes almost certainly would be denied since the pump station route was a viable alternative that did not involve the potentially catastrophic disruption of a protected habitat. In Cohen's opinion, seeking approval from DEM in this instance would be futile. Expert Joseph P. McCue (McCue), the senior wetland biologist at Natural Resource Services, supported Cohen's assessment. The town, however, countered with the testimony of Larry Smith (Smith), the town's engineer, who maintained that it would not have been useless for petitioners to apply to DEM. Notably, the council chairman expressed frustration with petitioners' futility evidence, claiming that anything short of direct evidence from DEM of what DEM would do with regard to petitioners' applications was simply opinion, hearsay, and unhelpful.
The other issue discussed at length at the remand hearing was whether the pump station could handle the increased sewage flow that inevitably would accompany petitioners' subdivision. The council insisted that additional dwellings—coupled with the age, technological shortcomings and unfortunate location of the pump station—could only exacerbate the environmental and health fallout that would result from an accidental discharge. The petitioners attempted to rebut the council's protests with testimony that their subdivision would not increase the likelihood of a discharge. Cohen stated that the pump station would be operating only at a maximum 71 percent of its design capacity should it be called upon to serve the subdivision. In any event, Cohen insisted, the various upgrades to the pump station which petitioners had agreed to undertake would render the station safer and more fit to handle any increase in effluent flow.
Not assuaged, the town presented its own contrary evidence. Smith affirmed that, according to "Murphy's Law" and despite any upgrades to the station, any increased sewage flow would likely result in a more dire environmental and health situation in the event of a discharge. He stated that the station's approaching obsolescence was potentially problematic, its screw pump technology would require additional maintenance, and its proximity to the Blackstone River was a threat to the health, safety and welfare of the Lincoln community. Smith testified that these existing issues would only be exacerbated by the addition of petitioners' subdivision. Furthermore, Smith intimated that, without any empirical data, it was inappropriate for the council to honestly entertain petitioners' tie-in request.2
Upon the conclusion of testimony at the hearing, the council adopted certain findings of fact and conclusions of law in accordance with our Cullen I directive, and voted unanimously to deny petitioners' tie-in request. On September 13, 2004, the council submitted to this Court the following:
The council's written submission repeated its oral denial of petitioners' tie-in proposal with the qualification that it was to be "without prejudice, pending further information to be supplied to the [council] regarding a flow test, an inflow/infiltration test, and determination by [DEM] regarding approval for alternative routes for a sewer connection."
On October 12, 2004, petitioners filed a petition for further review in this Court, pursuant to our retention of jurisdiction in Cullen I, 850 A.2d at 906-07.
The dispositive issues presented in this case are as follows: (1) whether the council rightly placed upon petitioners the burden of proving that their proposal was in the best interests of the health, safety and welfare of the community; and (2) whether it was appropriate for the council to require petitioners to prove the nonexistence of other feasible sewerage routes. Because petitioners' several other arguments essentially rely upon our resolution of these issues, they will be discussed where appropriate.
"When reviewing a case before this Court on a writ of certiorari, we `scour the record to discern whether any legally competent evidence supports the lower tribunal's decision and whether the decision-maker committed any reversible errors of law in the matter under review.'"3 Cullen I, 850 A.2d at 903 (quoting Kent County Water Authority v. State (Department of Health), 723 A.2d 1132, 1134 (R.I.1999)). "`If legally competent evidence exists to support that determination, we will affirm it unless one or more errors of law have so infected the validity of the proceedings as to warrant reversal.'" I...
To continue reading
Request your trial-
Kedy v. A.W. Chesterton Co.
...it unless one or more errors of law have so infected the validity of the proceedings as to warrant reversal.'" Cullen v. Town Council of Lincoln, 893 A.2d 239, 244 (R.I. 2006) (quoting Cullen v. Town Council of Lincoln, 850 A.2d 900, 903 A. The Doctrine of Forum Non Conveniens We granted ce......
-
New Castle Realty Co. v. Dreczko
...made detailed personal observations of drainage problems on record). The Rhode Island Supreme Court held in Cullen v. Town Council of Town of Lincoln, 893 A.2d 239, 248 (R.I. 2006) that DEM is the proper agency vested with exclusive power to determine issues concerning the preservation and ......
-
The New Castle Realty Co. v. Dreczko
...Carter Corp. v. Zoning Bd. of Review of Town of Lincoln, 98 R.I. 270, 201 A.2d 153 (1964). In reconciling the holdings of Goldstein and Cullen, the Rhode Supreme Court found that DEM standards, in the granting of a special use permit, may not be consistent with the standards of the local to......
-
Pres. Soc'y of Newport Cnty. v. City Council of Newport, 2014–191–M.P.
...decision and whether the decision-maker committed any reversible errors of law in the matter under review." Cullen v. Town Council of Lincoln, 893 A.2d 239, 243–44 (R.I. 2006) (internal quotation marks omitted). "If legally competent evidence exists to support that determination, we will af......