Vito v. Department of Environmental Management, 89-343-A

• Citation: 589 A.2d 809
• Decision Date: 11 April 1991
• Docket Number: No. 89-343-A,89-343-A
• Parties: Carl VITO et al. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. Ralph MUCCI et al. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 809

589 A.2d 809

Carl VITO et al. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT.

Ralph MUCCI et al. v. DEPARTMENT OF ENVIRONMENTAL MANAGEMENT.

No. 89-343-Appeal.

Supreme Court of Rhode Island.

April 11, 1991.

John B. Webster, Michael A. Kelly and Patricia Rocha, Adler, Pollock & Sheehan, Inc., Providence, for plaintiffs.

Stephen H. Burke, D.E.M., for defendant.

OPINION

SHEA, Justice.

This matter comes before the Supreme Court on the Department of Environmental Management's appeal from an order of the Superior Court requiring it to schedule and conduct a freshwater-wetlands public hearing within ninety days of a denied applicant's request for one. We affirm.

An understanding of the administrative procedures of the Department of Environmental Management (DEM) will help to clarify the issue before us. The Rhode Island Freshwater Wetlands Act (Wetlands Act), G.L.1956 (1987 Reenactment) § 2-1-18 through § 2-1-27, gives the director of DEM responsibility for identifying, protecting, and regulating development within Rhode Island's freshwater wetlands. Section 2-1-20.1 empowers the director to promulgate rules and regulations (Regulations) to carry out the purposes of the Wetlands Act. Section 2-1-22, as amended by P.L.1988, ch. 415, § 1 provides that a property owner may request DEM to make a preliminary determination of whether the Wetlands Act applies to a proposed land use. This initial determination is made by DEM's Division of Groundwater and Freshwater Wetlands (Wetlands Division). ¹

If the Wetlands Division determines that the Wetlands Act applies because the proposed land use would significantly alter freshwater wetlands, the applicant is notified that the proposed land use may not proceed unless the applicant requests and receives a DEM permit to alter freshwater wetlands (permit). An applicant's request for a permit is reviewed by the Wetlands Division, with public notice and opportunity for comment.

If it is determined that an applicant's proposed land use would require alterations of freshwater wetlands that are inconsistent with the purposes of the Wetlands Act, the application for a permit is denied. The DEM Regulation 5.04 provides that a denied applicant, who has not previously had a public hearing pursuant to § 2-1-22(b), may, within ten days of receipt of the denial, request a public hearing during which the denied applicant may attempt to demonstrate that the Wetlands Division's decision to deny the permit was incorrect. The final DEM decision following this public hearing is reviewable on appeal by the Superior Court pursuant to G.L.1956 (1988 Reenactment) § 42-35-15 of the Rhode Island Administrative Procedures Act (APA).

The matter before us arose as a result of DEM's administrative delay in scheduling and conducting freshwater-wetlands public hearings upon request by two groups of denied applicants.

On or about September 11, 1987, Ralph Mucci and Robert Poland, who own real estate situated in Foster, filed a request for a preliminary determination of whether the Wetlands Act was applicable to their proposed construction of a gravel driveway designed to gain access to two proposed residences. The Wetlands Division determined that because the proposed construction would significantly alter freshwater wetlands, a permit would be required. Thereafter, on January 25, 1988, Mucci and Poland filed a formal permit application with the Wetlands Division. The Wetlands Division denied their permit application on November 3, 1988, finding that the proposed construction altered freshwater wetlands in a manner inconsistent with the purpose of the Wetlands Act. Thereafter, on November 14, 1988, Mucci and Poland requested a freshwater-wetlands public hearing on their denied application.

Carl Vito and Richard Dufault, whose purchase of real estate situated in Cumberland from James and Louis Turner was conditioned upon the approval of DEM for anticipated construction, followed a course substantially similar to that of Mucci and Poland. On March 1, 1988, Vito and Dufault filed a request with the Wetlands Division for a preliminary determination of whether the Wetlands Act was applicable to their proposed construction of two single family residences on the real estate. The Wetlands Division determined that because the proposed construction would significantly alter freshwater wetlands, a permit would be required. Thereafter, on June 30, 1988, Vito and Dufault filed a formal permit application with the Wetlands Division. The Wetlands Division denied their permit application on December 15, 1988, finding that the proposed construction altered freshwater wetlands in a manner inconsistent with the purposes of the Wetlands Act. Thereafter, on December 27, 1988, Vito and Dufault requested a freshwater-wetlands public hearing on the denied application.

On January 25, 1989, Mucci and Poland filed a petition for a writ of mandamus and a complaint for injunctive and declaratory relief and damages, requesting that the Superior Court order DEM to schedule and conduct a freshwater-wetlands public hearing on their denied permit application. Similarly, on February 6, 1989, Vito, Dufault, and the Turners filed a petition and complaint, requesting that the Superior Court order DEM to schedule and conduct a freshwater-wetlands public hearing on their denied permit application.

The petitions of the two groups were consolidated. The Superior Court heard argument on June 9, 1989, and held evidentiary hearings on June 16, 1989, and June 19, 1989. At the evidentiary hearings, the trial justice heard testimony from Stephen G. Morin (Morin), chief of the Wetlands Division, and other DEM officials concerning DEM's administrative procedures for holding a freshwater-wetlands public hearing upon a denied applicant's request for one. Morin testified that when a freshwater-wetlands-public hearing request is made by a denied applicant, the applicant's name is placed at the bottom of a list maintained by the Wetlands Division. A hearing officer is designated by the director to hold a freshwater-wetlands public hearing when the denied applicant's name is eventually reached according to chronological order. Prehearing conferences are sometimes conducted to promote settlement by the parties prior to a freshwater-wetlands public hearing. Absent settlement, a freshwater-wetlands public hearing is scheduled and conducted, for which DEM provides a hearing officer and at which the Wetlands Division is represented by counsel from DEM's Office of Legal Services.

The DEM witnesses candidly testified to the administrative delay in scheduling and conducting public hearings in general and freshwater-wetlands public hearings in particular. At the time of the evidentiary hearings in June 1989, approximately thirty-five denied applicants were waiting for freshwater-wetlands public hearings, one since 1985, according to DEM records. The DEM also admitted that neither of the Mucci/Poland or Vito/Dufault freshwater-wetlands public hearings had been scheduled as of the time of the evidentiary hearings. Thus Mucci and Poland had been waiting approximately seven months and Vito and Dufault approximately six months for freshwater-wetlands public hearings since their requests for one. The DEM's administrative delay in scheduling and conducting freshwater-wetlands public hearings was explained in part by the difficulty in locating hearing sites, problems on the part of DEM's legal counsel in finding the time to act either as the hearing officer or as counsel to the Wetlands Division, and revised plans being submitted by denied applicants as settlement offers, which require review by the staff of the Wetlands Division.

The DEM witnesses testified to the remedial steps taken to reduce the administrative delay in scheduling and conducting freshwater-wetlands public hearings. Part-time outside counsel had been retained to act as hearing officers specifically for freshwater-wetlands public hearings. The Wetlands Division also instituted changes in the divisionwide hearing process to increase the number of disputes settled or reached within eight-week rotation periods. Finally the Wetlands Division reorganized its permit-application process and the permit application itself to streamline the division's decision-making process.

Relying upon the evidence, the trial justice found that all freshwater-wetlands public hearings must be scheduled and conducted within a reasonable time after a denied applicant's request for one, which the trial justice determined to be ninety days. The trial justice entered a June 21, 1989 order requiring DEM to submit a freshwater-wetlands public hearing schedule that would eliminate the backlog of denied applicants and, within six months, allow DEM to schedule and conduct all freshwater-wetlands public hearings within ninety days of denied applicants' request for one. The trial justice deferred ruling on the consolidated petitions for a writ of mandamus until July 21, 1989, at which time he indicated he would make a determination whether DEM was successfully working toward implementing his order to reduce the administrative delay in scheduling and conducting freshwater-wetlands public hearings. However, the trial justice indicated that he thought it would be inequitable for the petitioners to receive their freshwater-wetlands public hearings before the other denied applicants ahead of them on the Wetlands Division's waiting list.

On July 18, 1989, the trial court stayed its June 21, 1989 order to allow DEM to prosecute this appeal, which was filed with this court on June 30, 1989. However, on September 28, 1989, this court vacated the stay of the June 21, 1989 order and agreed to expedite review of this matter. To that end, on November 29, 1989, after conference pursuant to Supreme Court Rule 16(h), this court assigned the case for full briefing and argument on a single issue agreed upon by the parties: whether the trial...