421 PINE STREET REALTY, LLC. Plaintiff/Appellant,
PROVIDENCE WATER SUPPLY BOARD AND THE RHODE ISLAND PUBLIC UTILITIES COMMISSION Defendants/Appellees.
County Superior Court
Plaintiff: John M. Verdecchia, Esq.
Defendant: Leo J. Wold, Esq. Michael R. McElroy, Esq. Leah J.
the Court is the Plaintiff-Appellant's-421 Pine Street
Realty, LLC. (Pine Street Realty), a single-member entity
managed by John Verdecchia (Verdecchia) (collectively,
Appellant)-administrative appeal request to reverse and
vacate Report and Order No. 21401 (Order) issued by the
Division of Public Utilities and Carriers (Division)
dismissing the September 5, 2013 complaint filed by
Verdecchia. Order at 17. The Division concluded the
"Providence Water [Supply Board] is not barred from the
provisions of [G.L. 1956] § 46-13-22 from requiring the
installation of back-flow prevention devices on all
of the water service connections to its distribution system,
" including Verdecchia's six-unit property located
at 421 Pine Street in Providence (the Property). Id.
at 14. Defendants-Appellees-Providence Water Supply Board
(PWSB or Providence Water) and the Rhode Island Public
Utilities Commission (Commission) (collectively,
Appellees)-separately object to the within administrative
appeal. Jurisdiction is pursuant to G.L. 1956 §
2008, Verdecchia received a written notification from the
PWSB regarding PWSB's Cross-Connection Control Program
that, among other directives, mandates the installation of a
backflow preventer valve on the Property. Verdecchia
contacted the PWSB and was further informed by the PWSB that
the Property was required to purchase and hire a plumber to
install a backflow preventer device at the Property.
Following the installation of a backflow preventer device at
the Property, Verdecchia would also be required to inspect
and generate a report of the backflow preventer valve
the next several years,  Verdecchia received a series of written
notices from the PWSB that mandated "immediate"
participation in the Cross-Connection Control Program that
"requires the installation of reduced-pressure-zone
types of devices in commercial and industrial settings"
for "[m]ulti-family housing consisting of (4) four or
more dwelling units . . . ." See
Appellees' Ex. 25. In a letter dated July 13, 2011, PWSB
issued a notice to Verdecchia and directed him to install a
reduced-pressure-zone (RPZ) backflow preventer within
forty-five days of the notice. Id. On October 4,
2011, PWSB issued another notice to Verdecchia and directed
him to install a RPZ backflow preventer on the Property and
provided him with thirty days to comply with the notice.
Id. On November 28, 2011, PWSB sent another notice
to Verdecchia directing him to install a RPZ backflow device
on the Property and provided him with ten days to comply with
the notice. Id. Verdecchia failed to comply with all
of the aforementioned notices sent by the PWSB.
October 4, 2012, PWSB issued a "Notice of Violation and
Order of Penalty" to Verdecchia informing him that
"421 Pine Street is in violation of the 'Public
Drinking Water Protection' Act, Chapter 46-13-22 of the
Rhode Island General Laws as amended, and the Rules and
Regulations of the Providence Water Supply Board Cross
Connection Program." See id. Specified in this
notice was a directive by the PWSB to allow Verdecchia until
October 18, 2012 to install the required backflow device at
the Property or face "appropriate action up to
AND including termination of water service" at
the Property. Id. After receiving the October 4,
2012 Notice of Violation, Verdecchia requested an exemption
for the Property's participation in PWSB's
Cross-Connection Control Program. Following Verdecchia's
exemption request for the Property, in a letter dated
February 28, 2013, the PWSB denied Verdecchia's exemption
request and further mandated that he comply with §
46-13-22 and PWSB's rules and regulations for backflow
protection. See Appellees' Ex. 26.
six months after Verdecchia's exemption request was
denied, in a letter dated September 5, 2013, Verdecchia filed
a complaint to the Division appealing the notices he had
received from the PWSB. See Appellees' Ex.
10. Specifically, Verdecchia appealed to the
Division and argued that the Legislature repealed §
46-13-22 that afforded the PWSB the right to require the
installation of a backflow device on the Property. In
addition, Verdecchia argued the PWSB did not possess legal
authority to require him to install the device as PWSB
January 7, 2014, the Division conducted a duly noticed
hearing on the Appellant's complaint pursuant to the
Administrative Procedures Act of §§ 42-35-1, et
seq. and the Division's authority under G.L. 1956
§§ 39-4-3 and 39-4-10. During the hearing, PWSB
presented two witnesses: Mr. Peter McLaughlin (McLaughlin)
and Mr. Jeffrey Lykins (Lykins). McLaughlin is a
"[m]anager and engineer in customer service" for
the PWSB. See Appellees' Ex. 3; Tr. at 67:2-5,
Jan. 7, 2014. During McLaughlin's testimony, he explained
the dynamics of a "cross-connection" and the
importance of a backflow preventer as this device relates to
a commercial property and identified the Property as
"commercial." McLaughlin also testified that the
PWSB's recent policy requires properties with four units
or more to have backflow devices. Also, during his testimony,
McLaughlin supported several of PWSBs exhibits, including
Exhibit 13 (Section 608.1 of the commercial plumbing code,
which requires the installation of backflow preventers on all
commercial properties), and Exhibit 14, which included
several notices, the first of which he expressed was sent on
July 13, 2011 and the final notice, which was sent in October
2012 to the Appellant, regarding the backflow
responsibilities of the Property. McLaughlin's testimony
is based on his years of managing PWSB's cross-connection
control program and his belief that the Property was required
to have a backflow preventer.
the Director for the Department of Inspections and Standards
for the City of Providence and a local and national
registered architect for over thirty years, expressed that
one and two-family buildings are residential and three or
more family buildings are commercial buildings. During his
testimony, Lykins further explained that although a building
may seem residential inside, the building may be required to
meet commercial standards, which calls for a backflow
prevention device pursuant to the plumbing code. Based on his
professional opinion, Lykins concluded that a backflow device
is required for the six-unit Property.
daylong hearing, the Division issued Order No. 21401 on May
5, 2014 denying and dismissing the Appellant's complaint.
The Division found "abundant evidence on the
record" to conclude that Providence Water is not barred
from the provisions of § 46-13-22 from requiring the
installation of backflow prevention devices on all the water
service connections to its distribution system. Order at 14.
Furthermore, the Division was "unable to accept
[Verdecchia's] argument that . . . § 46-13-22
prohibits Providence Water from requiring the installation of
a back-flow prevention device on his six-unit residential
property by virtue of the property's residential
nature." Id. at 15. The Division also found
that "an assessment of the 'commercial' vs.
'residential' nature of the property is essentially
unimportant" and "only relevant in terms of
separating the so-called 'high hazard' properties for
immediate enforcement." Id. at 15-16. However,
the Division referred the issue of whether PWSB's
cost-shift to the property owners constitutes an illegal tax
or a constitutional violation to the Courts, which
exclusively possess the authority to address such inquiries.
Id. at 17.
7, 2014, following the Division's issuance of Order No.
21401, the Appellant filed a motion to stay the effect of
Order No. 21401 with the Division. On July 17, 2014, the
Division issued Order No. 21511, which denied the
Appellant's motion for stay. On July 17, 2014, Appellant
filed an administrative appeal for Order No. 21511 in
Superior Court. On April 20, 2015, Appellant's motion for
stay was heard and denied. Thereafter, on April 20, 2015,
Appellant petitioned the Rhode Island Supreme Court for writ
of certiorari and filed a Motion for Stay. Following
Appellant's unsuccessful Motion for Stay, Appellant
withdrew his petition, in part, because the denial of the
Motion for Stay rendered the request for certiorari moot.
appeals Order No. 21401 on grounds that the decision of the
hearing officer should be reversed as it was clearly
erroneous, against the weight of the evidence presented, and
in violation of law. The Appellant makes two main
contentions. First, the Appellant argues against the
requirement of § 46-13-22(b) to install a backflow valve
device, because he believes the Property is exempt based on
the Legislature amending § 46-13-22(b) which removes the
requirement that cross-connection control devices be
installed at residential service connections. Second, the
Appellant argues that the action of PWSB in only requiring
those owners of properties of four units or more to install
backflow prevention devices at their own expense constitutes
an illegal tax and violation of the Equal Protection Clause
under both the Rhode Island and Federal Constitutions.
response, Appellees argue that the Appellant's appeal
should be dismissed on substantive and procedural grounds.
The Appellees argue that § 46-13-22(b) mandates that
PWSB's cross-connection control policy is legal and does
not violate the Rhode Island Constitution. Specifically,
Appellees argue the substantive evidence on the record
supports the Division's finding that the Property is a
commercial property and that section 9.4(a) of the Rhode
Island Department of Health's (the DOH) Rules and
Regulations Pertaining to Public Drinking Water requires the
PWSB to enforce the policy against the Appellant. Appellees
further argue that, even if the Property is residential,
§ 46-13-22(b) does not preempt the cross-connection
control policy. Specifically, Appellees argue that §
46-13-22(b) authorizes the DOH to require the installation of
cross-connection control devices at residential properties;
section 9.4(a) of the DOH's Rule and Regulations mandates
that water utilities such as PWSB require that customers
install cross-connection control devices at preexisting
residential properties such as the Property; and that section
9.4(a) is not ultra vires of § 46-13-22.
Additionally, Appellees argue the cross-connection control
policy does not violate either the Rhode Island or the
Federal Constitution. Specifically, the Appellees argue the
cross-connection control policy does not constitute an
unlawful tax; it does not violate the Equal Protection
Clause; and PWSB has applied it fairly and rationally.
Finally, the Appellees argue procedurally that the
Appellant's appeal should be dismissed because the appeal
was not properly filed, nor does the Appellant name the
Superior Court's appellate review of a final
administrative decision is governed by the Administrative
Procedures Act. Sec. 42-35-15; Iselin v. Ret. Bd. of
Emps.' Ret. Sys. of R.I., 943 A.2d 1045, 1048 (R.I.
2008) (citing Rossi v. Emps.' Ret. Sys. of R.I.,
895 A.2d 106, 109 (R.I. 2006)). Section 42-35-15(g)
delineates the applicable standard of review for
administrative appeals to this Court:
"(g) The court shall not substitute its judgment for
that of the agency as to the weight of the evidence on
questions of fact. The court may affirm the decision of the
agency or remand the case for further proceedings, or it may
reverse or modify the decision if substantial rights of the
appellant have been prejudiced ...