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Pear Nike, LLC v. Town of Charlestown Zoning Board of Review

Superior Court of Rhode Island, Washington

November 14, 2018

THE TOWN OF CHARLESTOWN ZONING BOARD OF REVIEW, Raymond Dreczko, Jr., Michael Chambers, Clifford Vanover, Joseph Quadrato, JoAnn Stolle, Robin Quinn, Steven J. Williams, Lara Wibeto, in their official capacities only as Members of the Zoning Board of Review of the Town of Charlestown

          For Plaintiff: John F. Kenyon, Esq.

          For Defendant: Wyatt A. Brochu, Esq.


          TAFT-CARTER, J.

         Before this Court is a zoning appeal from a Decision (Decision) of the Town of Charlestown Zoning Board of Review (Board), denying an Application for a Special Use Permit filed by Arthur Frattini (Mr. Frattini), on behalf of Pear Nike, LLC (Pear Nike) (collectively, Appellants). Jurisdiction is pursuant to G.L. 1956 § 45-24-69.


         Facts and Travel

         Pear Nike owns a 5000 square foot vacant lot (Property) on the corner of Third Street and Shore Way in Charlestown, Rhode Island, otherwise known as Lot 294, Plat 9. (Application at 1.) The property is located in an R-20 zoning district within the 100 year flood hazard boundary, which is classified as Flood Zone AE13, and it lies within the Coastal Salt Pond Special Area Management Plan. Id.; Letter from Jeffrey J. Campopiano, P.E. (Mr. Campopiano) ¶, Nov. 1, 2016. The Property is situated ninety-eight feet away from Green Hill Pond and eighty feet from a drinking water well. See Comprehensive Environmental Analysis at 1. As such, the proposal required two variances from the Department of Environmental Management (DEM) in order to receive a permit to construct the proposed On-site Wastewater Treatment System [OTWS]. See id. The pond "runs along the opposite side of Shore Way, with access lots provided between the shoreline and Shore Way." Id. Pear Nike intends to "utilize one of those lots, lot 354, to provide drinking water supply to the home." Id. The Property is under the jurisdiction of a private home owners' association called the Sea Lea Colony Association. See Letter from Dave Landry, President of Sea Lea Colony Association, Nov. 13, 2010. The groundwater table on the site is twenty-four inches. (Letter from Mr. Campopiano at 1, Nov. 1, 2016.)

         On December 9, 2014, Mr. Frattini filed an Application on behalf of Pear Nike with the Board for a dimensional variance seeking relief from the front yard setback, and for a special use permit[1] seeking permission to install an OWTS in a flood zone, pursuant to Art. XIII § 218-78 of the Zoning Ordinance of the Town of Charlestown (Ordinance).[2] (Application at 1-2, Dec. 9, 2014.) Attached to the Application was a Construction Permit from DEM. See id. at 2. The OWTS proposal included installation of composting toilets. (Decision at 1, Jan. 29, 2015.) The Board approved the request for dimensional relief by a vote of four to one; however, a motion to approve the special use permit failed by a vote of three in favor and two opposed.[3] Id. at 1-2. Pear Nike appealed the denial of the special use permit, which appeal is pending in Superior Court. See Pear Nike, LLC v. Town of Charlestown Zoning Bd. of Review, WC-2015-0065.

         At one point, Board Member Chambers brought up the status of the previous appeal by asking counsel for Mr. Frattini whether he intended to pursue the outstanding appeal from the denial of the special use permit for the composting toilet. (Tr. I at 44, Oct. 18, 2016.) Counsel for Mr. Frattini indicated that if the current application were denied, Mr. Frattini would continue to pursue that other appeal in Superior Court. Id.[4]

         Meanwhile, Mr. Frattini filed the instant Application for a special use permit to install an OWTS. (Application, undated, at 1-2.) Attached to the Application was a second OWTS construction permit from DEM. Id. at 2. The Board conducted a duly noticed hearing over two days, October 18, 2016 (Tr. I), and November 15, 2016 (Tr. II).

         Mr. Frattini testified on behalf of Pear Nike. He testified that although the previously applied-for-and-denied composting toilet is "a state-of-the-art thing" and "very good for the environment[, ]" upon reflection, he figured that "possibly the composting part of it could get flooded out and that would be an environmental hazard." (Tr. I at 8.) He also speculated that "a future property owner[] may replace the toilets with conventional toilets illegally so it could actually bypass the composting toilet." Id. Accordingly, he testified that he "wanted to revise the plan with a new type of technology called Hydrokinetic" that has been "approved by DEM," and that basically its "the best system accepted by the state." Id. This new system only came on the market in the previous year. Id. at 26.

         Mr. Frattini also testified that when he applied for his first DEM permit, DEM informed him that it was not inclined towards approving new systems for properties that required a DEM variance due to the impact that such systems have on nearby Green Hill Pond. Id. at 31. Mr. Frattini offered to upgrade a system for an existing three-bedroom house owned by a third party two streets away from Pear Nike's Property in return for a DEM permit. Id. at 31-33. Mr. Frattini testified that an individual named "Mohammed[, ] who presumably was a DEM employee, informed him that because the then-proposed composting toilet was below the nitrate level, it would not be necessary for him to upgrade the other system. Id. at 32-33. He then testified that he had given his word to the homeowner, so he was "still going to fix the system because I think it's the right thing to do, and it's the right thing for the pond." Id. at 33. He later admitted that if the Board were to deny his current Application, he would be "under no obligation to fix the [other] system." Id. at 45-46.

         Expert Civil Engineer Jeffrey J. Campopiano testified in favor of the Application. He stated that the property is located "in the middle of a densely developed neighborhood[, ]" and consists of a small, grassy, flat lot, with an elevation of around six or seven feet above sea level. Id. at 13. He testified that the proposed hydrokinetic system would combine all of the waste stream from the house. Id. at 15. He then testified:

"Typically, on a regular septic tank in a conventional drain field, you will have 24 hours of detention and treatment time within a septic tank. With the treatment options and pumps and recirculation in this Hydrokinetic model, there's about seventy hours of treatment time. That's one of the reasons why they can get the wastewater clean to the numbers that were never heard of before in the industry standards." Id. at 15.

         Mr. Campopiano explained that although the industry standard for the project called for twenty milligrams of nitrogen per liter, the proposed system "has been tested and approved at ten," and that in some tests around the country, the results have seen numbers in the range of four to five. Id. Mr. Campopiano then described how the system operated, stating,

"The way it operates is it has five tanks. The tanks have pumps. It lets little bits of the waste stream into the other partially treated wastewater and that both creates denitrification and nitrifying of the chemical stream to get it to be able to be released as nitrogen gas into the environment. Basically, 90 percent. It's removed to levels of drinking water quality." Id. at 15-16.

         Mr. Campopiano stated that one of the conditions attached to the pertinent DEM construction permit requires Pear Nike to upgrade an existing OWTS located on a separate lot before the proposed OWTS can be constructed. Id. at 16-17; see also DEM Permits, dated May 10, 2013, and July 29, 2016. That separate lot contains a three-bedroom house with a conventional septic system. Id. at 17.

         Mr. Campopiano testified that based upon his calculations, an existing three-bedroom house with a conventional septic system produces approximately thirty-five to thirty-six pounds of nitrogen per year. Id. He then stated that with the installation of hydrokinetic systems on both lots, the combined nitrogen output for the existing three-bedroom house and the proposed two-bedroom house would be approximately fifteen or sixteen pounds, which basically would translate into a fifty-five percent reduction in overall pollution currently being produced by the existing house alone. Id. at 17-18.

         Mr. Campopiano then discussed the plans for the OWTS on the instant Property. Id. at 19. He testified that the Property is situated in an A12 flood zone, that the house will be elevated by thirteen feet, and that the control panel for the OWTS will be located seventeen feet off the ground. Id. at 18, 19. He testified that in the event of a massive flood requiring evacuation, upon the homeowner's return, he or she simply would "turn the switch on and the system can operate just as it did before." Id. at 20. He then stated that because "the tanks are watertight[, ]" seawater will be unable to penetrate any part of them, and that "[i]f the drain field gets wet, the drain field will dry off and it can be used again." Id. When questioned whether it would be possible for the system to be washed away by a flood, Mr. Campopiano responded: "No. The system is fully underground. Any storm water or water will basically go over the top of it and eventually dissipate and go away." Id.

         According to Mr. Campopiano's Comprehensive Environmental Analysis Report, "[t]he proposed onsite well will not gather surface waters, as it will be constructed with a steel liner, and draws groundwater from deep within the earth, likely 300' down." (Comprehensive Environmental Analysis at 10.) Chairman Dreczko raised concern about the OWTS being within seventy-five feet of an existing well. (Tr. I at 24.) Mr. Campopiano testified the well is approximately eighty feet from the OWTS, and that he recently learned at a national seminar that wells do not have to be located 100 feet from an OWTS. Id. at 24, 25. He then opined that a 100-foot rule "is arbitrary[, ]" and that considering that the pollution from the proposed system will be much lower than normal, a thirty-foot distance from the well would be sufficient. Id. at 25-26. Mr. Campopiano also testified that the only well that might be affected by the OWTS is Mr. Frattini's own well. (Tr. II at 22.)

         Mr. Dreczko later asked Mr. Frattini what type of system was being planned for the upgrade on the separate property. Id. at 25. He responded: "We haven't done any engineering on that yet." Id. at 25-26. He then stated that he would "probably use an Advantax textile filter." Id. at 26.

         The Town's wastewater manager, Matt Dowling, submitted a report to the Board on November 15, 2016, outlining ten conditions that should be implemented as part of any special use permit that the Board might grant. See Draft Special Use Permit Conditions. The conditions involved installation and testing requirements for the proposed OWTS and well, and for the OWTS upgrade on the separate lot. See id. The Applicants, through counsel, agreed to the conditions. (Tr. II at 5.)

         At the hearing, the following colloquy took place between Board members and Mr. Dowling regarding the proposed Hydrokinetic system:

"MR. DOWLING: The Hydrokinetic is a conditionally approved technology by DEM. DEM will currently allow for fifty approvals statewide. They are not at the fifty approvals yet, at this point in time. I believe there is roughly ten or so approvals statewide. Once these fifty approvals are cast out, the DEM will take a look at the analytical data from the ten systems that are required to be sampled under the program for functionality. And then at some point in time they will grant the system's full approval for statewide unlimited use.
"MR. CHAMBERS: Should this model be constructed and placed would this constitute one of the approval units?
"MR. DOWLING: Under the second bullet under the proposed conditions indicates that the installation of this system would be required to be utilized by the state as one of those ten test cases.
"MR. VANOVER: Mr. Dowling, this is an experiment?
"MR. DOWLING: They are conditionally approved. I don't think it's an experimental technology.
"MR. VANOVER: It looks like one to me, when DEM is just approving a few.
"MR. DOWLING: It's conditionally approved pending the results of the analysis." (Tr. II at 19-20.)

         Robert Phelan-the owner of the property intended for the upgrade-testified that Mr. Frattini approached him and proposed upgrading the existing system on Mr. Phelan's property. Tr. I at 57. Mr. Phelan stated that he thought that the proposal was "a no brainer for me[, ]" because his current, old system would be replaced by "a state-of-the-art system[.]" Id.

         Mr. Frattini was questioned by Board members regarding the status of a well across the street on a small piece of property owned by Mr. Frattini, which is close to Green Hill Pond. The well would service the proposed house through a waterline running underneath the road between the two properties. Board Member Vanover described the "well" as "a 2 1/2 inch PVC pipe sticking up out of the ground 3 feet and capped off[, ]" and he asked: "What kind of well is that"? (Tr. I at 34.) Mr. Frattini responded: "It's a well point which is actually driven into the water table. It's very common in sandy gravel areas." Id. Mr. Vanover then asked Mr. Frattini if he had obtained a permit for the well. Id. Mr. Frattini responded "Yes[, ]" but when pressed further, he said "[t]echnically speaking you don't need a permit for a well believe it or not." Id. at 34-35. He then admitted that he had not sought a permit from the applicable agency; namely, the Coastal Resources Management Council (CRMC). Id. at 35. He further stated: "I put the well in. I have a well completion report[, ]" and that he had "a preliminary test that shows the water is portable [sic]." Id. at 35, 36.[5] Although Mr. Frattini was not seeking relief for the well, Mr. Vanover stated that the issue went to the credibility of both Mr. Frattini and the proposal itself. Id.

         Mr. Frattini testified that the former president of the Sea Lea Colony Association had given him permission to construct a waterline by digging across the roadway, and he provided the Board with a letter from that former President. Id. at 37; Tr. II at 13; see also Dave Landry Letter, Nov. 13, 2010.) However, Board Member Quadrato expressed concern that this permission may not still be valid because it had been given six years ago by an individual who no longer was president of the Association. (Tr. II at 13-14.) Board Member Stolle expressed the same concern. See ...

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