Gardner v. Town of Charlestown Zoning Board of Review And Raymond Dreczko, 121820 RISUP, WC-2019-0327

Docket Nº:WC-2019-0327
Opinion Judge:TAFT-CARTER, J.
Party Name:BRUCE GARDNER and the CHARLES A. SWEET REVOCABLE TRUST, Plaintiffs, v. TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW and RAYMOND DRECZKO, MICHAEL CHAMBERS, CLIFFORD VANOVER, JOANN STOLLE, and JOHN LOVOY, in their capacity as Members of the Charlestown Zoning Board of Review, Defendants.
Attorney:For Plaintiff: Joseph DeAngelis, Esq.; Joshua S. Parks, Esq.; Robert E. Craven, Jr., Esq. For Defendant: Wyatt A. Brochu, Esq.
Case Date:December 18, 2020
Court:Superior Court of Rhode Island

BRUCE GARDNER and the CHARLES A. SWEET REVOCABLE TRUST, Plaintiffs,

v.

TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW and RAYMOND DRECZKO, MICHAEL CHAMBERS, CLIFFORD VANOVER, JOANN STOLLE, and JOHN LOVOY, in their capacity as Members of the Charlestown Zoning Board of Review, Defendants.

No. WC-2019-0327

Superior Court of Rhode Island, Washington

December 18, 2020

For Plaintiff: Joseph DeAngelis, Esq.; Joshua S. Parks, Esq.; Robert E. Craven, Jr., Esq.

For Defendant: Wyatt A. Brochu, Esq.

DECISION

TAFT-CARTER, J.

Before this Court is the appeal of Bruce Gardner and the Charles A. Sweet Revocable Trust (collectively, Appellants), of a decision of the Town of Charlestown Zoning Board of Review (the Board) dated and recorded on May 31, 2019, denying their request for a Special Use Permit to install an Onsite Wastewater Treatment System in the special flood hazard area and within 100 feet of wetlands. Jurisdiction is pursuant to G.L. 1956 § 45-23-69.

I

Facts and Travel

Appellants are the owners of a vacant parcel of land located on Sea Lea Avenue, Charlestown Rhode Island. The property located in a R-20 zoning district is a nonconforming lot of record. It is identified by the Charlestown Tax Assessor as Lot 387 on Assessors Map 9. On November 16, 2018, Bruce Gardner, on behalf of Appellants, as the property owners, filed an application requesting a Special Use Permit (SUP) pursuant to the Town of Charlestown Zoning Ordinance. (Application at 1.) The application sought permission pursuant to Article XIII, Chapter 218-78 of the Charlestown Zoning Ordinance for approval to construct and install an Onsite Wastewater Treatment System (OWTS). The Applicant proposed the construction of a two-bedroom single family residence that would be serviced by the OWTS. The OWTS was to be comprised of a composting toilet for black water and an ADVANTAX AX 20 system with a bottomless sand filter for gray water.

Prior History of the Sea Lea Property

On September 25, 2007, the Appellants applied to DEM for installation of a proposed ISDS on the Sea Lea property, seeking four variances from the DEM Rules and Regulations. See AAD Decision at 1-2 (Apr. 13, 2010). The DEM Office of Water Resources (OWR) issued a Notice of Denial on March 7, 2008, stating that "the Department determined that this project, as proposed, to be not in the best public interest as stated in S.D. 20.02." Id. at 1-2.

In response to Applicants' Motion for Statement of Grounds for Denial, OWR stated that "in spite of mitigating measures including proposed use of composting toilet, a separate advanced treatment ISDS for gray water and a system for recharge of groundwater using roof runoff, the Applicants did not meet the standard for approval of the variance application." Id. at 2. The OWR stated that, "ISDS regulations require setbacks of 150 feet, 100 feet and 10 feet respectively to coastal pond, private well and property line" and that "the design only affords 40 feet, 71 feet and 2 feet from these features." Id. The OWR also noted "the already degraded nature of Green Hill Pond and the risk of pollution of shallow wells." Id.

The Plaintiffs appealed from the Notice of Denial. An administrative hearing was held on August 24, August 25, and September 14, 2009, before the DEM Administrative Adjudication Division (AAD), at which several witnesses were presented by Plaintiffs, including Dr. Daniel Urish, an expert in the area of hydrogeology (AAD Decision at 4); Joseph W. Frisella, an expert in professional engineering, installation, and design of ISDS systems including advanced systems and soil evaluation (AAD Decision at 7); and Mohamed Freij, principal sanitary engineer at DEM, who made the decision and recommendation that led to the denial of those applications by OWR (AAD Decision at 12). The DEM then recalled Mr. Freij as its sole witness, who was qualified as an expert in the area of professional engineering and land surveying. Id. at 14; Bruce Gardner v. W. Michael Sullivan, No. PC-2010-3979, 2014 WL 1397059, at *2 (R.I. Super. Apr. 7, 2014) (Matos, J.).

The AAD issued its Decision and Order on April 13, 2010, finding that Plaintiffs had "met their burden of proof by clear and convincing evidence that the proposed plan will not constitute a threat to public and private health, safety and welfare[, ]" and that "OWR ha[d] not presented evidence to rebut the proof presented by the Applicants." (AAD Decision at 27.) The AAD hearing officer therefore found that OWR had improperly denied the application, and the hearing officer recommended that the application for the variances be granted. Id. However, the Director of DEM, pursuant to § 42-17.7-6, upheld the original denial. See Consent Agreement, AAD No. 08-007/ISA at B.6 (Nov. 28, 2016); Gardner v. Sullivan, 2014 WL 1397059, at *6.

The Plaintiffs appealed to Superior Court from DEM's denial of its ISDS application. See generally Gardner v. Sullivan, 2014 WL 1397059. The Court, in a written decision dated April 7, 2014, found that the Director of DEM had not adequately stated his rationale for rejecting the recommendation of the DEM Hearing Officer and, therefore, the Director's decision was in violation of constitutional and statutory provisions and otherwise affected by error of law. Id. at *9, *11. The Court remanded the case to the Director to make adequate findings of fact to support the conclusions of law as to whether Plaintiffs had met their burden of proof by clear and convincing evidence that the proposed plan would not constitute a threat to public or private health, safety, or welfare. Id., at *10, *11.

In lieu of further consideration and action by the Director, on November 28, 2016, Plaintiffs and DEM entered into a Consent Agreement pursuant to G.L. 1956 § 42-17.1-2 for the purpose of resolving Plaintiffs' appeal. See Consent Agreement, AAD No. 08-007/ISA at B.8 (Nov. 28, 2016). The Consent Agreement granted the variance to the Applicant and required the Applicant to upgrade an existing septic system in the area. (Tr. 6:6-13, Dec. 18, 2018 (Tr. I) (According to Attorney DeAngelis, "The consent agreement was based upon a process at D.E.M. which allows Applicants to come up with a neutral nitrate overload by not only their system but by participating in the repair of an existing system. An existing system in the Town of Charlestown owned by Mr. Michael Smith at 166 Ram Island Road was updated to new standards."); Consent Agreement at C.4. (b)-(d).) On December 21, 2016, Plaintiffs' newly resubmitted DEM application was approved under the terms of the Consent Agreement. See Pls.' Appl. OWTS Construction Permit (received Oct. 11, 2016).

Thereafter, the present application was filed seeking permission to install an OWTS in a special flood hazard area within 100 feet of wetlands. It is the denial of this petition, heard by the Board on December 18, 2018, February 19, 2019, March 19, 2019, and May 21, 2019, that is the subject of this appeal.

The December 18, 2018 Hearing

On December 18, 2018, Carolyn "C.J." Doyle (Ms. Doyle), a licensed professional civil engineer, was qualified as an expert in her profession. (Tr. I at 8.) Ms. Doyle testified on behalf of the Plaintiffs. She testified that a composting toilet would be installed to address the issues relating to black water at the Sea Lea property.1 Id. at 9-10. A gray water2 system would also be installed with a 1500-gallon septic tank and an AX 20 ADVANTAX unit for additional treatment, as well as a U.V. disinfection unit in the pump chamber, which would then discharge through a bottomless sand filter. Id. at 10. Additionally, she explained that the new upgraded denitrification system installed at the Ram Island Road property would discharge less than 19 milligrams per liter of nitrates, helping to offset the additional nitrates introduced by the new proposed septic system at the Sea Lea property. Id. at 11.

Ms. Doyle further testified that she believed all the requirements and public health, safety, and welfare concerns had been met. Id. at 13 (stating "[i]t's way in excess of what you would typically do for a denitrification type of system" and "I cannot think of anything else that you could add to further treat the waste or minimize any potential impact"). Ms. Doyle stated that it was her opinion, based on "the level of tr0eatment, the placement of the items on the site and the groundwater flow direction as determined by Dr. Urish," that granting the SUP would pose no threat to the drinking water supply in the Town of Charlestown. Id. at 14. However, on cross-examination, Ms. Doyle admitted that, while Dr. Urish's report indicated that "the groundwater flow direction is typically towards the coastal pond," the surface water could go in either direction because it "will follow the contours." Id. at 16. Ms. Doyle also admitted that she could not "stand here and tell you how much the drawdown will be," when asked about the potential effect of adding another shallow well less than ten feet from the neighbor's well. Id. at 20.

Board members Joseph Quadrato (Mr. Quadrato) and Cliff Vanover (Mr. Vanover) questioned Ms. Doyle about the design and square footage of the proposed house, stating that these facts were necessary for the Board. Id. at 23-25. Plaintiffs offered no definite building design. Id. at 25, 52:15-20 ("[F]rankly and candidly this parcel of real estate is on the market at present. The design of the house . . . should be left up to the potential purchaser in terms of where they want their toilet.").

Next, Nathan Godfrey (Mr. Godfrey) of Newport Appraisal Group, LLC testified on behalf of the Plaintiffs' application. He was also qualified as an expert witness. Id. at 26-27. Mr. Godfrey testified that, after...

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