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McCabe v. Town of Charlestown

Superior Court of Rhode Island

May 23, 2014


Washington County Superior Court, Kristin E. Rodgers

For Plaintiff: Paul J. McCabe, pro se

For Defendant: Wyatt A. Brochu, Esq.



This matter is before the Court on Paul J. McCabe's (McCabe) de novo appeal from a decision of the Town of Charlestown (Charlestown or the Town) Municipal Court. The issue presented to this Court is whether McCabe violated Town Ordinance §§ 210-8.1(I)(9)(c) and 210-7(C)(1) in failing to replace or repair a failed cesspool on his property located at 12 Allen's Cove Road in the Town.

Jurisdiction is pursuant to G.L. 1956 § 45-2-32.



Charlestown is a rural coastal community nestled in the southern part of Rhode Island. The Town is home to three salt ponds, Ninigret, Green Hill and Quonochontaug, as well as beaches along the Atlantic Ocean. Residents of the Town access potable water through private and public wells, therefore relying wholly on groundwater for drinking water. Additionally, Town residents rely entirely on septic systems or individual subsurface disposal systems (ISDS) for treating wastewater. Thus, the Town is one of several communities in this State which is particularly sensitive to the need to protect surface and ground waters from contamination.

In 1987, the General Assembly recognized and addressed the precarious situation that some communities, including Charlestown, face in maintaining and balancing their delicate ecosystems by enacting the Rhode Island Septic System Maintenance Act of 1987 (the Act), codified at §§ 45-24.5-1, et seq. Specifically, the General Assembly found:

"Recreational and drinking supply waters are the least tolerant of waste water contamination and, therefore, require rigorous protection. ISDS will continue, for the near term, to be the primary means of waste water treatment in many areas of the state where public and private water supplies and recreational waters exist. Therefore, to help avoid both contamination of state waters and the associated risks to the public health, and to help preserve the natural ecosystems, waste water disposal systems must be properly maintained to prevent their malfunction and/or failure." Sec. 45-24.5-2.

The Act thereby authorized municipalities to "adopt ordinances creating waste water management districts" and mandated that such "waste water management district ordinance programs shall be designed to operate as both an alternative to municipal sewer systems and as a method to protect surface and ground waters from contamination." Sec. 45-24.5-3. The Act also authorized municipalities adopting such ordinances to impose fines for noncompliance, not to exceed $500 per violation, with each day of a continuing violation constituting a separate and distinct violation. Sec. 45-24.5-4(9). The Rhode Island Department of Environmental Management (RIDEM) retains all its existing authority under the Act, thereby rendering concurrent jurisdiction over ISDS issues in municipalities that have adopted wastewater management district ordinance programs. Sec. 45-24.5-5.

In accordance with the Act, the Town created its Wastewater Management Commission and, inter alia, enacted a series of ordinances, including Ordinance § 210-8.1(I)(9)(c), that would safeguard the Town's surface and ground water by phasing out cesspools and replacing them with an approved onsite wastewater treatment system (OWTS). Initially, the Town mandated removal of all cesspools in the Town and replacement with OWTS by May 10, 2009. As a result of the economic hardships experienced by many Rhode Islanders and Town residents following our nation's economic downturn, the Town extended the phase-out date for all cesspools first to May 10, 2011, and eventually to May 10, 2012.

The most current iteration of Ordinance § 210-8.1(I)(9)(c) reads, in pertinent part:

"(c) All cesspools in the Town of Charlestown shall be removed and replaced with an ISDS suitable for the Wastewater Management District by the following dates in accordance with each zone based on proximity to critical resources [ ]:
"[2] May 2012 - Zone 2 - Cesspools located within the CRMC Salt Pond Region Special Area Management Plan (SAMP)/RIDEM Salt Pond Critical Resource Area (CRA) and defined by CRMC as Lands Developed Beyond Carrying Capacity [ ]." Id. (as amended by Ord. No. 311 (March 9, 2009) and Ord. No. 330 (Nov. 8, 2010).

As an additional safeguard in protecting the Town's surface and ground water, the Town enacted Ordinance § 210-7(C)(1), which provides that "[t]he owner [of a malfunctioning individual sewage disposal system (ISDS)] shall be given sixty (60) days to contact the DEM and apply for a permit to repair or replace the system . . . "

Intentional failure to comply with a written notice of a violation of any provision within Ordinance § 210 can result in fines up to $500 per day. Ord. § 210-11(C).



Having reviewed the evidence presented by both parties, the Court makes the following findings of fact.

McCabe owns residential property located at 12 Allen's Cove Road, designated as Charlestown Assessor's Plat Map 9, Lot 216 (the Property). At all relevant times, the Property has been and continues to be serviced by a cesspool. It is undisputed that the Property is located within Zone 2 of the present cesspool phase-out plan in the Town, and therefore the cesspool thereon was required to be replaced with an approved OWTS by May 2012. Ord. § 210-8.1(I)(9)(c)(2).

Since 2006, McCabe has received numerous letters from the Town identifying his obligations related to the cesspool phase-out program, which then required replacement by May 10, 2009, and annual pumping and inspection until replaced. A notice identifying these requirements was sent to all cesspool owners on July 1, 2006. See Ex. 2. On June 10, 2008, the Town issued a ...

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