2006-02-02 / Front Page

Judge bans town officials from commenting on DEM wetlands application

By Dotti Farrington

Newport Superior Court Associate Justice Stephen Nugent has ordered that Jamestown officials are banned from commenting on a wetlands application currently before the state Department of Environmental Management.

He made the ruling after a brief hearing in December on the claim of David Thurston of Saunderstown that the town failed to notify him of its agendas of meetings at which his application was discussed.

The ruling represents the loss of a significant round in the town’s on-going fight to protect wetlands from overdevelopment. The Thurston property in question is a parcel on Seaside Drive, northeast of Frigate Street, in the Jamestown Shores, a short distance from a town-owned beach. Thurston has asked for major variances involving wetlands as part of his plan to build a twobedroom house on the lot.

State Senate Majority Leader Teresa Paiva Weed (D-Jamestown, Newport) and state Representative Bruce Long (RJamestown, Middletown), House deputy minority whip, were among many who wrote to ask the DEM to deny the application. After Nugent’s ruling, they wrote to the DEM asking that it deny Thurston’s application because “by all appearances, this application runs contrary to public policy.” They noted that “protecting wetlands is a high priority for the state.” The town also wrote to the DEM, saying it disapproved of Thurston’s application.

Town silent

Rep. Long reported the court action at the Town Council’s Jan. 23 meeting. He said the court action nullified town opposition. The council did not comment on Long’s report. The Thurston case was handled by Associate Town Solicitor Lauriston Parks, whose office said he was out of town until mid-week and not available for comment.

Explanations wanted

Charlotte Zarlengo, president of the Jamestown Shores Association, told the council that she was shocked and angry about the court ruling. She said it was a major setback in the efforts to protect the town’s environmentally sensitive wetlands.

She saw the court status of the town as a reflection on “seriously inadequate action and insufficient representation by the town solicitor.” She told the council she wants to know who is responsible for the town’s errors and failures, and she wants to find ways to repair the damage.

“This is a serious environmental disaster that needs to be rectified,” she said.

Legislative efforts

Paiva-Weed and Long have been working in recent months on the issues of protecting wetlands and of preventing well-water contamination from overdevelopment of fragile lands. They are seeking to provide protection not only for Jamestown, but also for threatened residential properties throughout the state. Much of their work has been spurred by the increasing threats being seen in development at the Jamestown Shores.

The legislators told the DEM that the Thurston application indicates that it “would destroy wetland values and increase flooding in an area where polluted wells, flooded septic systems and inadequate water supplies already are present. Approval of the application would be inconsistent with our efforts to address cumulative impacts of development.”

Long added, in his letter to the DEM, that the Thurston lot “has a documented history of wetlands and water table denials and violations.”

Nugent’s decision rested on the use of the word “disapprove” by the town. The judge’s ruling accepted the argument of Thurston’s lawyers that the term had a specific meaning within state law and accordingly required that the property owner be notified of deliberations by the Town Council on the matter as such deliberations related to the DEM application.

Court action

Nugent’s ruling was a partial summary judgment as requested by Thurston because he did not receive notice of discussion of his DEM wetlands application at two meetings last February. At that time, the council agreed to “object to” the application, and assigned its legal staff to make grammatical changes only and send the statement of opposition to the DEM.

The letter signed by Kenneth Littman, council president at the time, specified that the council “disapproved” the application.

In the court documents, Parks claimed an interchangeability of the words “object,” “oppose” and “disapprove,” based on simple dictionary definitions. Thurston’s lawyers, Joseph DeAngelis and Kendra Beaver of Providence, argued that under specific Rhode Island law pertaining to such matters as the wetland applications, the word “disapprove” carries a much more legalistic meaning, “one that is specific in the field of environmental law.” On that basis, the applicant is entitled to formal notification of deliberations, the lawyers said. Parks countered that the DEM itself previously chose to interchange the terms “oppose” or “object” and “disapprove” as illustrated in a North Kingstown case in which Parks was representing that town.

Thurston’s lawyers contended that Park’s argument about the definitions was “pure but admittedly creative chicanery. . . and muddles the issue. (Parks) argues sophistically.” They also called the town’s action a “flagrant, selfserving attempt to cover” the action of whoever did change the word. The lawyers said the DEM denied their client’s wetland application in August solely on the basis of the Littman letter that specified town disapproval. They said the application would have been approved if it were not for the Littman letter. The court record does not say whether Littman or Parks or someone else was responsible for the change of the word.

According to the letter, the wetland changes requested by Thurston would “reduce and displace wildlife productivity and diversity and suitability, and affect and modify water quality, function and flow.”

The court record noted that the current Town Council reviewed the situation at two executive sessions held in October. Thurston said he did not receive formal notice of those meetings, but was told of the second meeting by his attorney, who said it was being held for consideration of a potential settlement. Thurston attended that session.

Thurston’s court presentation included his claims that his wetland application would not change the natural character of the land, and would not injure the rights of others.

All parties — including the DEM, the town and Thurston — involved in the court action agreed ahead of time to abide by whatever the judge ruled. Parks signed off to acknowledge receipt of the written ruling, and at that time, he asked about Thurston’s intent to claim attorney fees, according to court documents.

The ruling provides that Jamestown’s disapproval was null and had no effect on further DEM consideration. The DEM is to continue to review the application and not consider anything Jamestown might say. The town of Jamestown cannot object, attempt to influence, or interfere with Thurston’s application, and Thurston can ask for attorney fees in the matter. Thurston, who bought the 8,500-square-foot lot for $24,000 some years ago, had claimed he was entitled to fair market value of $500,000 or more if the Jamestown position was not declared null and void by the court. He asked that the court reverse the DEM denial and award him compensatory and punitive damages.

Also presented

The court record includes a letter by attorney Arlene Violet on behalf of the Zarlengos and Jamestown Shores Association.

She wrote that about 50 percent of the wetland on the Thurston property, about 3,500 square feet, would be altered. She said the wetlands were within 250 feet of the Jamestown Shores Beach, used for swimming, fishing, and shellfishing. She said Thurston wanted to put the septic system 12 feet from the swamp where 50 feet is required by the state and 150 feet is required by the town. Basically the lot is unbuildable, Violet said. “Water from the land already flows onto the (abutting) Zarlengo property. It is an undersized lot, already with illegal alterations to the topography and with several cease and desist orders. It makes a mockery of regulations,” she wrote.

The DEM told Thurston that a new application has to be filed, according to the court record.

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