Harris v. Town of Lincoln

• Decision Date: 20 December 1995
• Docket Number: No. 94-25-A,94-25-A
• Citation: 668 A.2d 321
• Parties: Steven HARRIS et al. v. TOWN OF LINCOLN, et al. ppeal.
• Court: Rhode Island Supreme Court

Page 321

668 A.2d 321

Steven HARRIS et al. v. TOWN OF LINCOLN, et al.

No. 94-25-Appeal.

Supreme Court of Rhode Island.

Dec. 20, 1995.

Jonathan Oster, Lincoln, for plaintiff.

James P. Marusak, Denise M. Lombardo, Providence, for defendant.

OPINION

LEDERBERG, Justice.

This case arose as a result of the construction by the town of Lincoln (town) of a sewer-processing facility on town-owned property next to the residence of the plaintiffs, Steven Harris and Denise Harris. The plaintiffs brought suit in the Superior Court where a trial justice found in favor of the plaintiffs and granted relief. In response, the defendants (the town; Claudette Paine, the Finance Director of the Town of Lincoln, and Burton Stallwood, alias) have appealed to the Supreme Court the order of the Superior Court granting compensatory damages and declaratory and injunctive relief to the plaintiffs and have also appealed subsequent orders that denied modification or suspension of the prescribed relief and mandated compliance with the original injunction. For the reasons stated below, we affirm in part and modify in part the orders of the trial justice. The facts and procedural history relevant to our holding are as follows.

Facts and Procedural History

In 1979 plaintiffs purchased residential property at 31 Maria Street in Lincoln, Rhode Island (plaintiffs' property). In June 1987 plaintiffs sought and were granted approval by the Zoning Board of the Town of Lincoln to build an addition to their home. At that time, plaintiffs attempted to purchase a lot owned by defendants, adjacent to plaintiffs' property, but were told that the lot was not for sale and would only be used for access to the Blackstone Canal.

On February 15, 1988, however, the town, as part of a townwide sewer project, began construction of a sewer pumping station on that adjacent lot. The sewer pumping station consisted of a covered wet well measuring four feet by six feet and a dry well measuring six feet by six feet along a centrifugal pump, according to Donald D'Anjou (D'Anjou), a supervisor for the town's sewer department, who testified at trial. The station operates by trapping solid waste on a grate that is raked and washed down twice per week. When the sewage in the wet well reaches a certain level, the pump turns on and the effluent is pumped to a treatment plant. Effluent remains in the wet well, however, when the station is not pumping. A fan circulates air into the building that encloses the two wells while vents circulate air that is released into the atmosphere.

Although plaintiffs complained to the town regarding the proximity of the pumping station to their home soon after construction began, the pumping station was, nevertheless, constructed twenty-six feet from plaintiffs' property line. On February 8, 1989, plaintiffs brought the instant action to claim damages and to enjoin defendants from operating the pumping station. Mr. Harris testified that since the pumping station began operating in 1989, he has heard the station's generator "hundreds of times." The plaintiffs testified that during the generator's operation, they felt vibrations, heard noise, and smelled odors. Mr. Harris likened the generator's noise inside his home to "a mack diesel truck right next to your door." According to plaintiffs' testimony, operation of the generator created diesel fumes, and the pumping station itself emitted sewage odors. Mr. Harris testified that the fumes and smells were present "[a]ll the time" but that they were at their worst in the summer months.

As a consequence of the pumping station's emission of noises, odors, and vibrations, plaintiffs claimed that the use and enjoyment of their property had been disrupted. The plaintiffs testified that they spent less time outside on their property, could not use their pool or have cookouts during the summer, and were no longer able to entertain in their backyard. The plaintiffs' testimony was buttressed by the testimony of their babysitter as well as several friends and neighbors who testified that they had experienced such noises, vibrations, and odors when visiting plaintiffs' home. A licensed real estate broker, Jo-Anne Siminski, testified that her analysis revealed a devaluation of plaintiffs' property of approximately $50,000--a decline in value from $225,000 to $174,900.

The defendants made an offer of proof that unavailable neighbors of plaintiffs would testify that noise from the generator was infrequent with no vibrations or odor. In addition, D'Anjou and the town's director of public works, Robert Schultz, both testified that they had never experienced noise, odor, or vibrations on plaintiffs' property. The plaintiffs and defendants presented conflicting expert testimony in regard to medical problems mainly sinus infections, that Mr. Harris allegedly suffered as a result of the town's nearby operation of the pumping station.

The defendant also called a consulting engineer, Russell F. Geisser (Geisser), who testified that he had conducted noise, vibration, and air testing at locations in and around the pumping station and plaintiffs' home and found that when the pump was running, the noise level was "fairly low"--less than sixty decibels. When the generator was running, however, Geisser testified that the noise level outside plaintiffs' home was seventy-three decibels, which he equated with the noise made by a vacuum cleaner. Inside plaintiffs' home, operation of the generator resulted in a noise level of sixty-seven decibels, a level Geisser likened to the sound from a passing car. Geisser also testified that the results of vibration tests and chemical analyses of the air were negative. At the time these tests were conducted, the generator was not enclosed. Subsequent to the tests, but before trial, a wooden enclosure was constructed over the generator, although no measurements were made to ascertain the effect, if any, of the covering.

Richard Chiodini (Chiodini), the project engineer and designer of the pumping station, testified that a low spot in the drainage basin necessitated a pumping station in the area in order to remove sewage. According to Chiodini, the pumping station had to be located within 300 feet of the low point. Other locations within the 300-foot radius would require either the purchase of an easement or the exercise of the town's power of eminent domain. Chiodini also testified that the town's choice of location for the pumping station was constrained by the presence of a protected wetland on the Maria Street lot, and he stated that the pumping station "was relocated a maximum distance from the property line as possible, without infringing upon the wetland."

On August 4, 1993, the trial justice issued a written decision in which she concluded that plaintiffs had sustained their burden of proving that the location and operation of the sewage pumping station created a private nuisance that unreasonably interfered with the use and enjoyment of their property. The trial justice accepted the testimony of plaintiffs and their witnesses and rejected the testimony of defendants' witnesses in respect to the existence of odor and noise. The trial justice further found that the operation of the pumping station amounted to a constructive taking of plaintiffs' property.

The trial justice enjoined the town from operating the pumping station and ordered it to relocate the station or to develop plans for a suitable alternative to the Maria Street site. In addition, the trial justice awarded plaintiffs $400 per month until the nuisance was abated as compensation for the value of the property taken by the town and for interference with plaintiffs' use and enjoyment of their home. On August 10, 1993, the trial justice issued an order consistent with her decision, and defendants appealed on August 18, 1993.

On October 13, 1993, defendants moved to modify and reconsider the order that required the town to move the pumping station to another site. The defendants submitted several plans that would move the station to another site, although they argued that it was not economically feasible to relocate the station completely.

Hearings were held on October 15, November 19, and December 16, 1993, to review the plans submitted by the town. The defendants asked the trial justice to view the site, but she stated that she doubted taking a view would be necessary. The alternative plans would (1) modify the station in situ at a cost of $22,280, (2) relocate the station to another area on the lot 113 feet from plaintiffs' house at a cost of $37,730, (3) relocate the system to other lots within the neighborhood 125 feet from the nearest residence at a cost of either $328,000 or $572,000, and (4) move the system to another site 230 feet from the nearest residence outside the neighborhood at a cost of $403,000. Laszlo Siegmund, a civil engineer, testified that plans 1 or 2 "would alleviate all the problems," but he could not state that there would be no noise from the generator.

At the conclusion of the hearings on December 16, 1993, the trial justice declined to select one of defendants' plans. Instead, she directed defendants to develop a solution that would locate the pumping station no closer than 150 feet from any existing home in the neighborhood. On January 14, 1994, the trial justice entered an order denying defendants' motion to modify. The defendants appealed, and the trial justice granted defendants' motion to consolidate the appeals.

On appeal, we consider the following issues raised by defendants: (1) whether the trial justice properly concluded that the town had created a private nuisance, (2) whether the trial justice properly found that operation of the pumping station constituted a constructive taking of plaintiffs' property, (3) whether the trial justice properly granted $400 per month in monetary damages, and (4) whether the trial justice erred in denying defendants' motion to...