Cullen v. Town Council of Town of Lincoln, No. 2001-212-M.P.

• Court: Rhode Island Supreme Court
• Writing for the Court: Williams
• Citation: 893 A.2d 239
• Parties: John J. CULLEN et al. v. TOWN COUNCIL OF the TOWN OF LINCOLN.
• Docket Number: No. 2001-212-M.P.
• Decision Date: 15 March 2006

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893 A.2d 239 John J. CULLEN et al.
v.
TOWN COUNCIL OF the TOWN OF LINCOLN. No. 2001-212-M.P. Supreme Court of Rhode Island. March 15, 2006.

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Stephen H. Burke, Esq., for Petitioners.

Anthony DeSisto, Esq., Providence, for Respondent.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Chief Justice WILLIAMS, for the Court.

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

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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.

I Facts and Travel

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.

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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:

"1. The subject application to connect to the town sewer system is before the Town Council pursuant to Chapter 270 of the Public Laws of 1985, and Section 19-32 of the Code of the Town of Lincoln.

"2. The applicant has received Master Plan approval to subdivide the property known as the Whipple Cullen Farm.

"3. Among other things, the applicant was required to have an approved plan to tie into the town sewer system in order to obtain preliminary approval for the subdivision of the Whipple Cullen Farm.

"4. The applicant's proposal to tie into the Lower River Road Pump Station was rejected by the town's then-DPW Director.

"5. The applicant appealed that decision to the Sewer Appeal Board, pursuant to Section 19-32 of the Lincoln Town Code. The Sewer Appeals [sic] Board recommended that the Town Council accept the proposed tie-in, with conditions, and the applicant accepted said conditions.

"6. The Lincoln Town Council held a hearing on the matter on February 20, 2001, and denied the applicant's request to connect the Whipple Cullen Farm subdivision to the town's sewer system through the Lower River Road Pump Station.

"7. The matter is now before the Town Council on remand from the Rhode Island Supreme Court with instructions to make findings of fact and conclusions of law, to be forwarded to the Supreme Court on or before September 12, 2004.

"8. The Lower River Road Pumping Station exists but is in an undesirable location.

"9. The Lower River Road Pumping Station, and the equipment contained

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therein, is reaching its point of obsolescence or replacement.

"10. That at this point in time, no flow test has been done or inflow/infiltration test has been done, and therefore, the Town Council has no way of knowing at this point in time either the current or future operating capacity.

"11. That the applicant, to date, has not applied to DEM to see whether or not an application would be approved.

"12. Due to the initial poor design of the pump station and the proximity of the Blackstone River to the Pump Station, any spillage would be an environmental disaster.

"13. The recommendations of the Sewer Appeals [sic] Board do not go far enough, and that at this point in time, the Town Council concludes that there should be a complete replacement of the pump station.

"14. Based upon the above, the proposed sewer connection of the Whipple Cullen Farm to the Lower River Road Pump Station would jeopardize the health, safety and welfare of the community.

* * *

"The Town Council also adopted the following conclusions of law:

"1. The applicant has the burden of proving a sewer connection, as presented, would be in the best interest of the health, safety and welfare of the town.

"2. The applicant has failed to meet that burden, based upon the lack of information relative to a flow test.

"3. The Town Council cannot be certain, at this point in time, that the Lower River Road Pumping Station has the ability to handle the sewerage [sic] that may flow through there if the application were to be approved.

"4. The applicant has provided no proof that there are really no other feasible ways to connect to the sewer system."

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.

II Analysis

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.

A Standard of Review

"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

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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...