Plaintiff: John F. Kenyon, Esq.
Defendant: Wyatt A. Brochu, Esq.
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.
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.)
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 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). (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. 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.
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.
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).
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.
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.
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.
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
"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
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.
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.
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
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
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.
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.)
hearing, the following colloquy took place between Board
members and Mr. Dowling regarding the proposed Hydrokinetic
"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.)
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.
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. 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.
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