Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

A recent Massachusetts Supreme Judicial Court decision on waterfront property rights dramatically illustrates the different approaches taken by the high courts of Rhode Island and Massachusetts in weighing the interests of public and private property rights at the waterfront.

In Massachusetts the scales are tipped decisively in favor of public rights while in Rhode Island the scales are more evenly balanced, at least where filled tidal land is at issue.

Filled Tidal Land

Filled tidal land is land created by the placement of fill below mean high tide. Much of this filling is historic, before the advent of modern day regulation of the shoreline. For example, in Rhode Island such filling proliferated in the 18^th and 19^th century, and even earlier. Much of downtown Providence and areas along Narragansett Bay and the Providence River are filled tidal land, as are areas along the waterfront on Acquidnick Island, particularly in Newport.

And the filling of Back Bay, the home of Fenway Park, was completed in the late 19^th century.

The Arno Case

In Arno v. Commonwealth, the plaintiff Joseph Arno, the owner of filled tidal land in Nantucket, sought to uphold two lower court rulings, one from the Land Court and one from the Superior Court, that found that despite the arguments of the Commonwealth, certain of Arno’s land was not encumbered with requirements allowing certain public rights on the land under the Waterways Act, by virtue of its having been filled tidal land.

The procedural history of the case is complicated, as are the facts, given disagreement over what high water line was at issue and disagreement over the impact of the Attorney General’s involvement in the case in 1922 on behalf of the Commonwealth. (For help in sorting this out, see the excellent brief submitted on behalf of Mr. Arno by Gordon M. Orloff, Esq. and Gareth I. Orsmond of Rackemann, Sawyer & Brewster, P.C.)

The lower courts found that the process of registering the land under the Registration Act demonstrated that no conditions subsequent were imposed on the filled tidal land under the Waterways Act. The high court disagreed, holding that only the legislature, and not the attorney general or the land court,  could release any restrictions under the public trust doctrine which benefited the public, and the legislature had not done so.

The Public Trust Doctrine

The public trust doctrine differs from state to state but generally imposes restrictions on land below mean high tide for the benefit of the public, in Rhode Island for the purposes of fisheries, commerce and navigation and in Massachusetts for public purposes including  navigation, fishing, and fowling.

In Massachusetts these restrictions for the benefit of the public have generally been found to apply to filled tidal land, as the Arno case demonstrated.

And the restrictions were not minor in nature. For example, under the license that Arno required to develop these filled tidal lands, most of the proposed facility’s ground floor was required to be a “facility of public accommodation” with public restrooms, and public easements allowing passage for any lawful public purpose. That would certainly be considered an intrusive infringement on “private property” rights.

The Rhode Island Experience

Rhode Island has chosen another course. While the State of Rhode Island argued in a 1995 case that only the legislature can extinguish public trust rights in filled tidal land, and must do so by a deed or an equivalent action, the Rhode Island Supreme Court rejected this approach. Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995). (See my blog postings of July 3, 2010 and July 24, 2010 below for further discussions on the Rhode Island experience.)

The Rhode Island Supreme Court rejected this approach because it recognized that historically there had been a great deal of filling along the coast, and that much of this was for the benefit of commerce and navigation, such as piers, warehouses, factories, etc. It recognized that this was done in good faith by riparian landowners, exercising clearly-recognized riparian rights, it was often done at considerable expense, and it was often a type of “private” public works projects”, as they were building infrastructure to support commerce.

But the Rhode Island Supreme Court also looked to judicial precedent and found decisions in the 19^th century supporting the view that when land is created by placing fill below mean high tide, the public trust rights are extinguished in the filled land but the public rights remain in the “new” shoreline. See for example  Allen v. Allen, 32 R.I. 166 (1895).  In other words, the public did not lose its rights to the shoreline, but these rights were necessarily moved seaward.

In essence, the Rhode Island Supreme Court, both in the 19^th century and in the 20^th century, was balancing private property riparian rights with public trust rights. In doing so, Rhode Island's high court brought more certainty to property rights. 

The Essence of Property Law

And as my real property law professor bellowed in opening his lecture in my first law school class on the first day of law school: 

                      “Property law loves certainty. Property law loves certainty.”

As my professor went on to explain, private property ownership is central to our free enterprise system, and it is absolutely essential  that property owners and prospective purchasers know and understand precisely what rights they have and do not have with regard to their property.

One would think Mr. Arno is no exception. After all, he bought land whose title was registered in the Land Court in 1922, after the involvement of the Attorney General on behalf of the Commonwealth. He certainly thought his land was free of the significant encumbrances urged by the Department of Environmental Protection for the benefit of the public, and two lower courts took the same view.

So much for certainty!

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Last month the U.S. Supreme Court spoke in an important waterfront property rights case, and whenever that happens, Rhode Island, being the Ocean State, had better listen. See Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al.

At issue in that case was whether a taking of waterfront property rights had occurred, and whether such a taking could occur by court order as opposed to legislative fiat. The Court did agree that no taking had occurred, but the Court couldn’t agree on much else, with a plurality opinion dueling with two concurring opinions on the judicial takings issue.

I will focus on the waterfront property rights issue, and suggest that you read the excellent positing on Dean Patty Salkin’s Law of the Land blog (June 23, 2010) for a thoughtful discussion of this interesting, and as yet inconclusive, judicial takings issue.

(For those not familiar with littoral and riparian rights jargon, reviewing my immediately prior posting on “Riparian Rights in Little Rhody and Beyond” may be helpful, as I define some of the terminology used by the Supreme Court in its opinion.)

What was at Issue in Florida?

In Florida, as in Rhode Island, the State owns all land below mean high tide, meaning the submerged ocean bottom as well as the land exposed at low tide. This leaves to the waterfront property owner all land above mean high tide.

(In Rhode Island, mean high tide is “the arithmetic average of high-water heights observed over an 18.6-year Metonic cycle” and “is the line that is formed by the intersection of the tidal plane of mean high tide with the shore”. State v. Ibbison,  448 A. 2d 728, 730 (R.I. 1982). A Metonic cycle is the period which begins and ends when a new moon occurs on the same day of the year as it did at the beginning of the last cycle. Id.)

At issue in the Florida case was a statute which allowed municipalities to petition the state to renourish beaches eroded by wave, and presumably wind, action. If the state agreed to renourish the beach, it would establish an “erosion line” which for the purpose of the case at issue was determined to be the mean high tide line. The state would them place fill seaward of this line, thereby creating new land. 

Under Florida’s view, the newly created land was owned by the State.

Concerns of Waterfront Property Owners

It does not take an overactive imagination to guess the reaction of the “former” Florida waterfront property owners. It probably went something like this. 

“I bought waterfront property, I enjoyed waterfront property, I paid taxes on waterfront property, and now I no longer have waterfront property because of the State’s actions. Instead, I have property abutting dry land owned by the State. I think my property rights have been taken, and no one has paid me for them. Isn’t that unconstitutional?”

Good question.

No Taking

The answer, according to the U.S. Supreme court is “No”. In essence, the Court said, your facts are right but your conclusion is wrong.

Property owners argued they were denied two property rights attendant to waterfront ownership status—to receive accretions to their property (i.e. additions of land occurring over time) and to have their property contact the water.

Not so fast, said the Supreme Court. The Court found that waterfront property owners did not trump the rights of the State to create land by placing fill below (i.e. seaward) of mean high tide, and the Court pointed to the doctrine of avulsion under Florida law, where the sudden creation of additional land at the shore (as opposed to the long term creation of such additional land by accretion) did not change the waterfront property owner’s property line. 

In other words, land which may be created by a storm dumping sand and rocks below mean high tide is land owned by the state; the property owner’s boundary does not change.

In its review of Florida law, the Supreme Court found no exception to this rule when the state itself created the avulsion by adding fill below mean high tide. That is, a sudden change in the mean high tide by artificial means (i.e. placing fill below the high tide line) has the same result as a sudden change in the line resulting from natural means (i.e. a storm), and the waterfront property owner is the loser, so to speak, in each instance.

Applicability to Rhode Island

Because  the State also owns all property below mean high tide in Rhode Island, one may be tempted to argue that the same result of "no taking"  would apply in Rhode Island.

While I have not considered this issue in any depth, I would raise some cautions to this conclusion.

First,  Rhode Island has well-settled historic case law, recently confirmed, that a waterfront property owner who extends his property seaward by placing fill below mean high tide owns title to that property in fee simple, provided such filling was done with express or implied state approval or with state acquiescence. Allen v. Allen, 32 A. 166 (R.I. 1895); Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995). These cases of course refer to historic filling prior to the creation of Rhode Island’s Coastal Resources Management Council.

This case law could be used to argue that unlike in Florida, in Rhode Island an artificial avulsion does in fact extend the private property line seaward. 

The counter to this may be that this occurs only in the historic cases, prior to the current coastal resources management statutes and regulations, when it is the landowner filling for the purpose of extending his shoreline, as historically this was done for purposes of creating wharves and docks, facilitating commerce, and for establishing other businesses and residences.

The property owner may make a counter-argument that whether or not the property line moves depends on (i) who is filling below mean high tide and (ii) why is the fill being placed below mean high tide. And perhaps where this argument leads is that to the extent it is the State doing the filling, there must be compelling reasons to find that a waterfront property owner no longer has waterfront property as a result of the filling, giving the Rhode Island Supreme Court’s historic sensitivity to balancing the rights of waterfront property owners with the rights of the public and the State.

Such an approach would be entirely consistent with Rhode Island’s historic Public Trust Doctrine case law, although the impact of Rhode Island’s Coastal Resources Management Program remains to be seen.

However, if no one draws a line in the sand, we may never have to address the issue!

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Rhode Island is the Ocean State, and if anyone doubts the interest of Rhode Islanders in waterfront property rights, perhaps getting caught in this Holiday weekend’s beach traffic will convince them otherwise.

Rhode Island’s Public Trust Doctrine

I learned firsthand the intense interest of Rhode Islanders in access to the shore when some years back I brought a major Public Trust Doctrine case to the Rhode Island Supreme Court, asking the Court to decide the ownership rights of land created by the placing of fill below mean high water at the shoreline. Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995).

At issue in that case was title to millions of dollars of filled tidal land, which is land created by the placing of fill below mean high water to extend out the shoreline into the bay or ocean. The State claimed ownership to this land under Rhode Island’s Public Trust Doctrine based on a then-recent court decision, Hall v. Nascimento, 594 A. 2d 874 (R.I. 1991), which found, in dealing with one small cottage property, that since the State owned all land below mean high tide under the Public Trust Doctrine, land created by the placing of fill below mean high tide was also owned by the State.

Under the Public Trust Doctrine, the State owns all land below the high water mark in a proprietary capacity for the benefit of the public, to preserve the pubic rights of fishery, commerce and navigation in such waters. Nugent ex rel. Collins v. Vallone, 161 A. 2d 802, 805 (R.I. 1960).

The decision in Hall raised concern throughout the State, as over our history Rhode Island waterfront property owners had created thousands of new acres of waterfront land by filling below mean high tide throughout the State. This was done to create wharves, docks, land for business operations and residences. 

After Hall, the State claimed it owned all this land, on which private property owners had been paying taxes for years, and, adding salt to the wounds, the State wanted to charge the “former owners” a license fee to continue to use and occupy the land they thought they owned.

In the Greater Providence Chamber of Commerce case, which I brought on behalf of the Chamber, Narragansett Electric Company, Providence Gas Company, and the Rhode Island School of Design, the Court cleared title to this filled land in favor of the private property owners against claims by the State of State ownership. In doing so, the Court established a test to clear title to hundreds of millions of dollars of other filled tidal land throughout Rhode Island.

That experience, and subsequent experience dealing with waterfront property rights and disputes, convinced me how important waterfront property rights are here in Rhode Island, whether to beach goers or property owners.

Understanding the Terminology

Accordingly, I will be spending several postings in this blog to discuss a  United States Supreme Court case issued last month which addressed waterfront property rights in Florida, and to discuss its impact on Rhode Island waterfront property rights. That decision implicated the Public Trust Doctrine and an alleged state taking of waterfront property rights without paying just compensation, and it raised the intriguing question of whether or not there could be a “judicial” taking of private property rights (i.e. a taking by a court decision as opposed to by legislative or regulatory activity). Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al.

In this first article, I wanted to set the stage for that discussion by addressing some of the terminology of waterfront property rights, as it is somewhat arcane, and it is a necessary precursor to understanding  the issues raised  in the Florida case, as well as the issues we face here in Rhode Island which may arise not just from State actions but from natural forces.

Riparian versus Littoral Rights

In the first instance, let me “clarify” my headline in this blog. Riparian rights customarily refers to rights pertaining to rivers and streams, and littoral rights refers to property rights pertaining to ocean waters. However, since the Rhode Island Supreme Court has used the terms interchangeably, I do so here as well. (And there is some basis for their doing so, as in Rhode Island we have tidal, brackish rivers, we have freshwater marshes and we have saltwater marshes.)

Accretion and Alluvion

Accretion is the addition of sand, sediment or other unconsolidated deposits (known as alluvion or alluvium) to waterfront land, which occurs gradually and imperceptivity over time.

Reliction

Reliction is when land which was once submerged becomes dry land by the waters receding.

Avulsion

Avulsion is the process of a sudden and perceptible change in the boundary of waterfront land, either through the addition of land that expands the size of the parcel or through formerly upland property being submerged, diminishing the size of the upland parcel.

Erosion

Erosion is the natural and generally gradual process of reduction of the shoreline by weathering and transporting of solids by the actions of wind, water, ice, etc.

As a generalization, when there has been a sudden and perceptible change in the shoreline, as by avulsion or reliction, the property boundary does not change, but remains as before (i.e. the mean high water mark, if in Rhode Island). When there has been a slow or gradual change in the shoreline, as by accretion or erosion, as a generalization the property line does change, with the landowner either losing property (erosion) or acquiring more property (accretion).

These concepts will be discussed in more detail in the next posting when examining the Supreme Court’s decision in the Beach Renourishment case.

But for now, it is time for me to head to that shoreline, and hopefully avoid the worst of the beach traffic!

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With near double digit national unemployment, the collapse of the housing market throughout the country, and soaring state deficits, you might think that State government would be too busy to worry about you and your laundry.

Well, think again.

Last month Maryland  passed “Right to Dry” legislation, preventing condominium, cooperatives and homeowner associations from prohibiting homeowners from installing clotheslines on their property. In doing so, it joined a handful of states that have in some way addressed this issue.

Yes, clotheslines. Remember them? They were everywhere before the advent of dryers.

And here in Rhode Island, Right to Dry legislation was introduced in the General Assembly but did not come to a vote before the Legislature adjourned for the year. Right to Dry legislation was also introduced in neighboring Connecticut but I understand it too died in the legislature.

The so-called “Right to Dry Movement” is proposing legislation in the various states that would prohibit municipal government, homeowner’s associations, condominium and cooperative associations, deed restrictions and covenants running with the land from preventing outdoor drying of clothes through the use of clotheslines or drying racks. For websites supporting Right to Dry, see www.laundrylist.org and www.right2dry.org.

Florida’s Right to Dry statute, FSA Section 163.04, serves as the basis of the model legislation advocated by Project Laundry List. The Florida statute prohibits municipal governments and various homeowner associations from prohibiting the installation of solar collectors, clotheslines or other energy devises based on renewable resources.

The Maryland statute is more limited than Florida, pertaining only to clotheslines and only to single family property, meaning less than five dwelling units, and it allows for reasonable restrictions to be placed on the clotheslines.

A few other states have joined the laundry wars. For a thumbnail summary of legislative enactments as of last summer, see my good friend Dwight Merriam’s News Brief in Zoning Practice. (Scroll down as the article starts on the lower right.)

Many who support Right to Dry legislation do so for reasons pertaining to energy efficiency and promotion of renewable energy, and many are concerned about curbing greenhouse gas emissions, and therefore arguably reducing their adverse impact on climate change.

(I am not qualified to wade into the debate on greenhouse gas emissions and its asserted causal link to climate change, but I would note two thoughtful articles for readers interested, after the “Climategate” hubbub, in whether there is in fact a scientific “consensus” on this issue. Please see conservative columnist John O’Sullivan’s article and Jay Richard’s article in the American Enterprise Institute Journal.)

Many who oppose Right to Dry legislation do so because it is feared the open air drying of laundry could have a negative aesthetic impact on the property and thereby reduce property values. Someone’s El Grande boxer shorts blowing in the breeze may not exactly dress up the neighborhood, so to speak.

In commenting on the proposed Rhode Island Right to Dry legislation in an op-ed piece in the Providence Business News, I noted that my primary concern with this type of legislation is that it abrogates private property rights.

For example, several of these statutes flatly tell property owners what they must allow on THEIR property. And this is despite the fact that buyers in shared ownership communities, such as condominiums, are almost always given notice prior to their purchase of the restrictions governing their new home. If those restrictions are so onerous or so offensive, do not buy the property, or buy the property and seek to convince your co-owners that the restrictions should be changed.

But should a minority of property owners really be running to the legislature to try to get lawmakers to effectively abrogate rules and regulations enacted or preserved by a majority of property owners to protect their property interests?  Did majority rule and private property rights fall off the Constitutional bus somewhere?

One view may be that “Right to Dry” legislation is “Wrong to Try” and should have a “Right to Die” in the legislatures where it is pending.

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In preparing to give a seminar on environmental issues in real estate and business transactions at the upcoming Rhode Island Bar Association Annual Meeting, I decided I had to address EPA’s rule establishing what constitutes all appropriate inquiries (AAI) for property acquisitions, given its importance in claiming defenses to liability under the federal Superfund statute.

In doing so, I knew I would have to spend almost as much time discussing why simply following the rule may not result in adequate inquiries for many types of transactions.

Importance of the Rule

The final rule promulgated by the EPA became effective November 1, 2006, 40 CFR Part 312, and established standards for what constitutes a satisfactory investigation of real estate prior to its purchase for purposes of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C 9601 et seq., also known as the Federal Superfund Law.

The importance of the All Appropriate Inquiries Rule (AAI Rule) is that it allows a property owner to qualify for certain defenses under CERCLA, such as the innocent landowner defense and the contiguous property owner defense, as well as to qualify to be a bona fide prospective purchaser (BFP). In the first two instances, if the investigation shows no contamination, the prospective purchaser can acquire the property and qualify to assert the defenses as to contaminants covered by CERCLA if subsequently discovered. Similarly, it allows a prospective purchaser to qualify as a BFP to acquire contaminated property under the statute.

Following the AAI Rule is also required if one seeks to use brownfields grant funds to address contamination on a site.

What the Rule Requires

The Rule establishes a number of requirements, including

•      Qualifications (education and experience) for those conducting the investigation
•       Requirements for federal, state, local and tribal records review
•       Visual inspection of the property
•       Interviews with owners, operators, and occupants
•      Review historical sources of information
•      Search for environmental clean-up liens
•      Assessment of purchase price to fair market value if property not contaminated
•      Identification of missing data gaps

 Under the AAI Rule the inquiries must be conducted within one year of acquisition, and certain information must be refreshed or updated after 180 days.

The standards for inquiry are met by two site assessment protocols adopted by the American Society of Testing and Materials, ASTM E1527-05 and E2247-08 (for forestland and rural property).

Limits of AAI

So should a purchaser simply rely on doing an approved AAI site assessment in acquiring property, secure in the knowledge that it is learning everything it needs for a thorough environmental due diligence inquiry.

The answer is “No”!

The reason is that the AAI requirements do not include a number of inquiries that a prudent purchaser may  want to make. These include but are not limited to matters pertaining to

•      Asbestos
•      Wetlands
•      Lead
•      PCBs
•      Mold and indoor air quality
•      Radon
•      Health and Safety
•      Indian artifacts and cultural resources

An environmental site assessment should be tailored to the specific transaction and the information a purchaser needs to discover about a property. This will take into consideration a number of factors, including whether an ongoing business operation is being purchased, whether the deal is a stock acquisition or an asset acquisition, whether the site is known to be environmentally-impacted, whether construction is anticipated on the site, etc.

The Bottom Line

Depending on your circumstances and your need for CERCLA defenses, you certainly may want to include the AAI considerations, but it may well not be the most APPROPRIATE inquiry nor ALL the inquiry you need to make.

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Some time ago I was walking a development project with the chief surveyor for a large engineering company, showing him the unit boundaries I wanted established for a client’s proposed land only condominium project.

After about a half hour of pointing out boundary and overhang issues to him and discussing the location of common elements, he asked: “So what’s a land only condominium anyway?”

And this was a surveyor and engineering firm that had done extensive condominiums projects!

I have had similar questions from lawyers, even experienced real estate lawyers.

The land only condominium is indeed neglected.

Defined

It is not surprising, as the Rhode Island Condominium Act makes little mention of land only condominiums, beyond their definition. R.I.Gen.Laws 34-36.1-1.03(17)

“Land only units shall mean units designated as land only units on the plats and plans which units may be comprised entirely or partially of unimproved real property and the air space above the real property. The boundaries of a land only unit are to be described pursuant to Section 34-36.1-2.05(a)(5). Land only units may, but need not, contains a physical structure. The declaration may provide for the conversion of land only units to other types of units and/or common elements provided the conversion shall be effective only upon the recording of an amendment to the declaration which amendment will include new plats and plans identifying any portion of the land only unit converted to another type of unit and/or common element.”

Essential Attributes

There you see the essential attributes of a land only unit:

•      It need not contain a physical structure, but it may
•      It may subsequently be converted to a conventional condominium or common elements
•      The air space above the land is included in the unit

Land only units are also mentioned in the section of the Condominium Act addressing the creation of condominiums, R.I. Gen. Laws 34-36.1-2.01( which will be discussed in more detail below) and they are mentioned sporadically elsewhere in the Act.

For all its obscurity, it is a powerful and versatile tool for real estate development.

Consider two representative projects where I have found land only units extremely useful.

Representative Project—Mill Site

A client purchased a large mill site it wanted to develop, but was unsure it had the interest in developing the entire project. The site consisted of numerous buildings, some connected but most stand-alone structures, and some open space for new building construction. The client was looking for a way to have the flexibility to develop the site in part and perhaps sell off the site in part for development. However, the local land use regulations prohibited subdivision of the property.

A land only condominium was the solution. 

First, under Rhode Island law a condominium is not a subdivision. McConnell v. Wilson, 543 A.2d 249 (RI 1988)

Secondly, each building and buildable parcel was designated as a land only unit. Unlike a conventional condominium, which cannot be declared until the buildings are substantially complete, the land only unit can be declared as it stands, and buildings either later constructed on the unit or rehabilitated on the unit become part of the unit. ) R.I. Gen Laws 34-36.1-2.01(b)  The owner could develop three or four units and sell off the remainder of the  units to other developers for development.

Representative Project—High Rise Urban Development

A client was interested in buying an unimproved parcel in a downtown condominium project and constructing a high rise office building. However, the condominium was designed as a conventional condominium, meaning the client could not “buy” the condominium until after it constructed the building and it was substantially complete. That’s a risky situation to structure, particularly given the vagaries of conventional financing for such an expensive project. Complicating the issue was the fact the condominium was a leasehold condominium—meaning it was subject to a long-term ground lease.

Again, the solution was restructuring the condominium regime to have the portion being purchased by my client  be a land only condominium, which can coexist in the same condominium regime with a conventional condominium. R.I. Gen Laws 34-36.1-2.01(b)

Under the new structure, financing was provided and the project successfully completed, with the client having ownership of the condominium pad site from day one.

A Little Respect Please

So, the next time you hear someone reference a land only condominium, please treat it with a little respect!

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In the best of times, it’s hard to find anyone saying anything good about cesspools.

And this is hardly the best of times for cesspools.

Not Much Good To Say

The Rhode Island General Assembly passed legislation in 2007, R.I. Gen. Laws 23-19.15 -1 et seq., ordering the phase out of thousands of cesspools, finding:

•  cesspools are substandard and inadequate for sewage treatment and disposal
•  many cesspools contribute directly to groundwater and surface water contamination
•  wastewater disposed from cesspools contains bacteria, viruses, and other pollutants

Ouch!

Targets

The legislation targets the following cesspools for oblivion:

•         cesspools which have failed
•         cesspools on property where a sewer stub is available
•         cesspools within 200 feet of a public drinking water well or surface water supply
•         cesspools within 200 feet of the inland edge of a shoreline feature bordering tidal water

While no one knows how many cesspools have failed, it has been estimated that of the over 50,000 cesspools in Rhode Island,  approximately 4,000 are estimated to be in the State’s coastal zone.

It is safe to say that this is an issue that will affect a good number of Rhode Islanders.

Phase Out Schedule

The current legislation provides the following schedule for removal of targeted cesspools:

•        failed cesspools-- within one year of discovery or sooner if  an imminent health hazard
•        cesspools on property with a sewer stub-- within one year of sale of the property
•        cesspools within 200 feet of tidal coastal features or a water supply -- January 1, 2013.

These deadlines can be extended for up to five years for undue hardship.

The Department of Environmental Management has promulgated draft regulations to begin the phase out of targeted cesspools, which will go for public hearing on May 27, 2010. (See in particular Rule 53)

Costly Consequences

The consequences of being required to abandon a cesspool are not inconsequential.

Perhaps the best scenario is where a sewer tie in is readily available. That may be relatively cost-effective.

However, if  sewers are not available,  the property owner must install a conventional individual sewage disposal system, the cost of which could run from $10,000 to $15,000. However, if the property is located in a sensitive environmental area, high tech denitrification systems may be required, and that could cost from $20,000 to $30,000.

Recognizing Hardships

The legislation authorized the Department to grant limited waivers, up to five years from statutory deadlines, if the homeowner demonstrates “undue hardship”. The draft regulations define undue hardship as

“having an annual income of less than or equal to eighty percent (80%) of the appropriate household size area median income determined by federal Housing and Urban Development standards for the community within which the cesspool is located.”

While people often think of waterfront property as where the wealthy live, in Rhode Island there are also a lot of people of average means who live within 200 feet of tidal water in cottages and modest homes, many of which may be serviced by cesspools.  

Many of these people may be unable to afford the cost of upgrading to new systems if sewers are not available. And while there are loan programs, these are not available in all communities or in all areas of those communities where the loan programs may exist.

Having talked with the top DEM professional responsible for administering the cesspool phase out program, I am confident the Department recognizes that cost of replacement may be an issue and that it is sensitive to the burden the legislation may impose.

Depending on the experience in implementing the program, it is possible that the definition of undue hardship may have to be revisted by the Department or that the General Assembly may have to reconsider the deadlines it has imposed  by statute. This may be particularly so where systems at issue have not failed.

While there may be few goods things to say about cesspools, there will be far fewer good things to say about politicians who try to force homeowners to close cesspools they can't afford to replace.

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The Cape Wind project to construct 130 wind turbines in Nantucket Sound was recently approved by U.S. Secretary of the Interior Salazar over the objections of two Native American Indian tribes, which claimed the project would disrupt spiritual rituals as well as ancestral grounds.

People of the First Light

The Mashpee Wampanoag of Cape Cod and the Wampanoag  of Gay Head (Aquinnah)  explained that “Wampanoag” means “People of the First Light” and the turbines would adversely impact their ability “to continue their ceremonies in a way that ancestors have done for thousands of years”, including their sunrise ceremony.

It was reported that the historic preservation officer for the Aquinnah Wampanoag of Martha’s Vineyard said in a letter to federal officials that the view of the project site in Nantucket Sound “is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the seasons”. (See news report)

The tribes have also expressed strong concern that the area of Nantucket Sound where the project will be located, known as Horseshoe Shoal, may contain ancestral artifacts and remains that will be disturbed or destroyed by the construction of the project.

A Question of View

One may be forgiven, however, for wondering whether this is perhaps more about political expediency than religious and cultural rituals.

For example, supporters of Cape Wind have noted that the land of the Aquinnah Wampanoag is on the western part of Martha’s Vineyard in the area known as Gay Head (pictured above), and does not have direct views of Nantucket Sound.

Also, an attorney who was a former member of the Tribal Council of the Aquinnah Tribe, and whose father and grandfather were life-long tribal medicine men, sent a letter to Secretary Salazar, stating:

“I am stating to you with complete honesty and knowledge that I never participated in, witnessed, or even heard of a sacred spot on the horizon that is relevant to any Aquinnah Wampanoag culture, history or ceremony. Nor did I see, or hear, either my father or grandfather conduct such ceremony. I do know that offerings to the Creator are made at ‘first light’, but first light is a period of time not a place. The notion that locating wind turbines in Nantucket Sound will impose on, impact or harm any cultural tradition is just plain false.”

The writer acknowledged in his letter that he worked for a law firm that represented the developer of Cape Wind but said that “my employer has not influenced my decision to write this letter in any manner whatsoever”.

The letter included a petition reported to dispute the claimed cultural value of the Cape Wind site to the Aquinnah tribe, which was signed by eight members of the tribe, including a former chairman of the tribe who originally opposed the project but now supports it. (See Letter) (See News Report)

Protecting Artifacts and Remains

As for the claims that construction of the project will disturb ancestral artifacts and remains, Department of Interior approval came only after detailed studies finding that such disturbance was unlikely, and the approval carries significant restrictions to guard against this. These measures include

•  requiring a “Chance Finds Clause” in the federal lease to the developer, halting operations in the event of an unanticipated archeological find and allowing the tribes to participate in analyzing the finds
• requiring additional and detailed marine archaeological surveys and other protective measures in the project area
• requiring geotechnical coring and analyses to aid in the identification of intact landforms that might contain archaeological materials 

My Way or the Highway

The tribes have refused millions of dollars offered to mitigate any impact the project may have on the tribes, and are continuing their opposition.

According to Secretary Salazar, from the tribes’ perspective, “there are no acceptable mitigation measures for the impacts to their traditional cultural properties”. In other words, build it somewhere else.

When Everyone Has Rights

In land use and environmental permitting, when everyone has rights, no one has rights. 

The Department of the Interior’s decision effectively recognizes this.

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The Director of the Rhode Island Department of Environmental Management has statutory authority to review the decisions of DEM Administrative Adjudication hearing officers pertaining to violations or licenses. (See R.I.Gen. Laws 42-17.7-6.) 

Significant Review Authority

By statute, the Director “may in his or her discretion adopt, modify or reject such findings of fact and/or conclusions of law” by doing so in writing setting forth the rationale for the action.

That is significant authority, as the Director can not only accept or reject the hearing officer’s decision, but the Director may also modify it.

Empowering Hearing Officers

But legislation has been introduced in the House and Senate to remove this power from the Director. (See pending legislation.) This would appear to empower hearing officers, making them  the final decision maker at the Department level, subject to court review.

The legislation on its face gives no hint on the rationale for this change. And it is perhaps too early in the session to know if there is serious support for this pending legislation.

One may wonder if the Rhode Island Supreme Court’s decision in the Champlin’s Marina case influenced this proposed legislation. (Champlin’s Realty Associates v. Michael Tikoian et al.) 

In that decision, the Court limited the ability of administrative hearing decisions to be made on anything but evidence presented at a hearing and subject to cross-examination. As the Court said, quoting from its prior decision in Arnold v. Libel:

 “no litigious facts should reach the decision maker off the record in an administrative hearing” and if the decision maker “intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal”, he or she must notify the parties so that they may “contest any such evidence” and “cross-examine any people consulted”.

The Long Arm of the Champlin’s Decision

Perhaps the Champlin’s decision had nothing to do with the pending legislation, but it seems clear that the Champlin’s decision would in any event impose some restrictions on the Director in reviewing hearing officer decisions.

Of course, by statute, the Director “shall have no communication, directly or indirectly, with a hearing officer relating to any issue of fact or of law on any matter then pending before said hearing officer”. (R.I.Gen.Laws 42-17.7-7)

The Champlin’s decision would appear to go further and say that any decision by the Director in reviewing a hearing officer’s decision must be based solely on the record of the hearing. Depending on the complexity of the matter and the length of the hearing, that could be a good bit of review and reading time.

And if the Director wanted to base his decision on anything outside the record, it would seem the Director would have to notify the parties and give them an opportunity to challenge any such evidence. That, of course, could result in more time-consuming review.

Who knows—perhaps a busy director would not find the proposed legislation so objectionable!

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