Milardo v. Coastal Resources Management Council of Rhode Island

• Court: Rhode Island Supreme Court
• Writing for the Court: WEISBERGER
• Citation: Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266 (R.I. 1981)
• Decision Date: 01 September 1981
• Docket Number: No. 79-245-M,79-245-M
• Parties: 12 Envtl. L. Rep. 20,133 Sebastian MILARDO v. COASTAL RESOURCES MANAGEMENT COUNCIL OF RHODE ISLAND et al. P.

Page 266

434 A.2d 266

12 Envtl. L. Rep. 20,133

Sebastian MILARDO v. COASTAL RESOURCES MANAGEMENT COUNCIL OF RHODE ISLAND et al.

No. 79-245-M.P.

Supreme Court of Rhode Island.

Sept. 1, 1981.

Hogan & Hogan, Thomas S. Hogan, Donald J. Packer, Providence, for plaintiff.

Dennis H. Esposito, Providence, for defendants.

OPINION

WEISBERGER, Justice.

The plaintiff, Sebastian Milardo, owns a piece of property abutting Winnapaug Pond in Westerly, Rhode Island. Having decided to develop the property for construction of a summer home, the plaintiff sought a variance from the Rhode Island Department of Health regulations regarding sewage disposal. In essence, the plaintiff proposed to minimize the introduction of waste materials into the surrounding marsh ecosystem by installing an Individual Sewage Disposal System (ISDS). The ISDS had been specifically designed for the property by Joseph Frisella, a civil engineer.

The plaintiff's application to the Department of Health resulted in conditional approval on April 17, 1975. The conditions imposed included, inter alia, the following:

"h. A copy of this approval must be submitted to the Coastal Resources Board for (its) concurrence.

"i. The continued use of such system as aforesaid shall not contaminate any drinking water supply or tributary thereto; shall not pollute or cause high nutrient levels in any body of water; shall not interfere with the public use and enjoyment of any recreational resource; shall not create a public or private nuisance; shall not be a danger to the public health."

Thereafter, plaintiff appeared before a subcommittee of defendant, the Coastal Resources Management Council (the council) in Westerly, Rhode Island on August 26, 1975. This subcommittee reported to the full council at its regular meeting on October 12, 1976, in Providence, recommending that the application be denied. The full council received the record of the August 1975 subcommittee meeting. In addition, the full council heard evidence and questioned witnesses.

The full council initially rendered a decision to the effect that because the approval of the Health Department was not final, the matter was not properly before the council. Subsequently, however, the council issued a final decision denying plaintiff's petition on substantive grounds. On the basis of testimony at the October 1976 hearing, the council concluded, inter alia, that installation of plaintiff's ISDS in this barrier-beach region would result in the "introduction of nitrogens, nitrants, and phosphates into the marsh in significant amounts." In addition, the council found a significant probability of damage to the hydrology and biology of the barrier wetland. Accordingly, the council refused to concur with the Department of Health's conditional approval, and plaintiff's application was denied.

The plaintiff appealed to the Superior Court, pursuant to the Administrative Procedures Act, G.L. 1956 (1977 Reenactment) § 42-35-15. The Superior Court justice denied and dismissed plaintiff's appeal and affirmed the council's decision, whereupon plaintiff sought further review by appeal to this court. Section 42-35-16, however, states that a party seeking Supreme Court review must do so by petition for certiorari. On March 20, 1980, this court, recognizing that appeal was an inappropriate procedure, entered an order directing plaintiff to appear and show cause why his appeal should not be dismissed. Milardo v. Coastal Resources Management Council, R.I., 413 A.2d 115 (1980). Following oral argument on this issue in May 1980, we concluded that the constitutional issues raised were of sufficient importance that dismissal would be inappropriate. Accordingly, on June 24, 1980, we issued an order to the effect that the appeal would be treated as a statutory petition for certiorari, which petition we granted. Milardo v. Coastal Resources Management Council, R.I., 419 A.2d 312 (1980). The writ was issued on July 3, 1980, and the case came on for argument on the merits in May 1981.

The plaintiff raises nine issues for our consideration. Essentially, however, these issues revolve around three pivotal elements: (1) the power of the state to regulate the use of his property; (2) the validity of the delegation of this power to the council; and (3) the exercise of this power by the council in the instant case.

I

The plaintiff contends that the denial of his application amounts to a "taking" of his property such that he should be compensated for his economic loss. In essence he is arguing that the public at large should bear the economic burden for this exercise of state power. See Agins v. City of Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 112 (1980). The Superior Court justice rejected this argument. The only evidence in the record concerning this issue was the testimony before the council of a local real estate appraiser, who stated that if the land was determined to be not buildable, it would have "no value whatsoever outside of beauty in the eyes of the beholder." This rather sweeping conclusion does not purport to take into account other possible uses to which the land might be put or, indeed, the possibility that a more effective sewage-disposal system might be devised.

This court has recognized that a regulation depriving an owner of all beneficial use of his property is confiscatory and requires compensation. Sundlun v. Zoning Board of Review, 50 R.I. 108, 145 A. 451 (1929). When use regulations are reasonably necessary to protect the public health and safety, however, we have considered them permissible exercises of the police power which did not require compensation. Holgate v. Zoning Board of Review, 74 R.I. 333, 60 A.2d 732 (1948); Horton v. Old Colony Bill Posting Co., 36 R.I. 507, 90 A. 822 (1914); Harrington v. Board of Aldermen, 20 R.I. 233, 38 A. 1 (1897); see Sundlun v. Zoning Board of Review, supra.

The power of the state to regulate for the protection of public health, safety, and morals, also known as the police power, is not a static concept. As advances in scientific knowledge have increased public awareness of certain harms, the power of society to guard against these newly perceived dangers must adjust accordingly. Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Commission, 11 Cal.App.3d 557, 571 89 Cal.Rptr. 897, 905 (1970). Activities that have previously been considered harmless may come to be recognized as serious threats to the public well-being. Concomitantly, new technologies may render harmless conduct that previously put public health at great risk. For this reason it is difficult to apply general principles to the regulation of property. Indeed, the Supreme Court of the United States has recently conceded its own inability

"to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648 (1978).

In recent years many courts have considered regulations that severely limit development in certain geographical areas. Cf. id. at 138, 98 S.Ct. at 2666, 57 L.Ed.2d at 657 (city may prevent alteration of privately owned historic structures). Areas that were previously considered valueless wastelands are now recognized as important ecological resources. In particular, marshlands adjacent to coastal areas and inland waterways are not recognized as vital to the economic and climatic well-being of society. In light of this fact, several courts have upheld regulations that deny developers the most beneficial economic use of their property. Candlestick Properties, Inc. v. San Francisco Bay Conservation & Development Commission, supra; Brecciaroli v. Commissioner of Environmental Protection, 168 Conn. 349, 362 A.2d 948 (1975); Lovequist v. Conservation Commission, 393 N.E.2d 858 (Mass.1979); Just v. Marinette County, 56 Wis.2d 7, 201 N.W.2d 761 (1972).

In recognition of the immense value and importance of the coastal region of this state, the General Assembly chose to guard against potential danger to the area from certain types of development. General Laws 1956 (1980 Reenactment) § 46-23-1. In this case the council found that plaintiff's ISDS would introduce nitrogens, nitrants, and phosphates in significant amounts into the marsh and that the effluent would reach the water table and flow with it. Furthermore, plaintiff's own witness testified that maintenance problems frequently cause this type of ISDS to malfunction. Thus the council's denial of plaintiff's application follows from the factual predicate that the system would produce a significant level of pollutants in an area meriting special protection.

In essence, plaintiff is asserting a right not only to use his property but also to discharge waste into the surrounding area. ¹ This is a "property right" that this court refused to recognize in Board of Purification of Waters v. Town of East Providence, 47 R.I. 431, 133 A. 812 (1926); see Harrington v. Board of Aldermen, supra. See generally Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 159 (1971); Comment, The Wetlands Statutes: Regulation or Taking? 5 Conn. L.Rev. 64, 79 (1972) (individuals have no property right to "spillover" into adjacent public resources.)

In light of both the enormous ecological importance of coastal areas, as determined by the Legislature, and the findings of the council that this ISDS would introduce pollutants into this precariously balanced environment, we believe that this denial was an exercise of the police power for protection of the public health and safety. Within the framework of this action, we cannot and do not address claims that the landowner may have based upon the theory of inverse condemnation. It has been...