TOWN SOLICITOR S OFFICE

Transcription

1 TOWN SOLICITOR S OFFICE M E M O R A N D U M TO: FROM: Members of the Town Council Michelle A. Buck, Esq. DATE: August 21, 2012 RE: Misquamicut Sewer District I have been asked to render an opinion as to whether the Sewer District was expanded to include the Misquamicut Fire District (MFD). In formulating my opinion, I have reviewed the following: Cases: Udo Schwarz and Jane Schwarz v. The Town of Westerly, et al. (Superior Ct. ; WC88-647) o Complaint for Declaratory Judgment w/ attached Exhibits A-G o Plaintiff s Motion for Summary Judgment o Plaintiff s Memorandum in Support of Motion for Summary Judgment o Memorandum in Opposition to Motion for Summary Judgment (submitted by the Town by its solicitor at the time, Justice Goldberg) o Order Westerly Residents for Thoughtful Development, Inc., et al. v. Joseph Brancato, et al. (RI Supreme Court November 15, 1989) (The Schwarz case was retrieved from the Superior Court archives. The decision in Westerly Residents was published and available on-line.) 1

2 Town Council Minutes: August 25, 1986 September 22, 1986 November 10, 1986 (also the Transcript attached to Memo in Opposition) May 10, 1993 (and as transcribed from tape) May 3, 1993 (and as transcribed from tape) Letters and Memorandum: Letter from Joseph Turo to Arthur F. Leiper, P.E. Town Engineer dated September 1, 1987 Letter dated November 20, 1985 from Schwarz (petition) Memo to Anthony Chiaradio, Jr. (DPW) from Arthur Leiper, P.E. dated September 4, 1987 Letter from DEM dated May 6, 1993 to Richard D. Comolli, Town Council President Interoffice Correspondence dated May 7, 1993 to Town Manager Joseph Pellegrino form Anthony F. Chiaradio., Jr. In addition, I have reviewed the sewer maps on file in the Clerk s office and in the Engineering Department. I have had conversations with the Engineering Department, who provided much information, and with Donna Giordano, who conducted an extensive search for records on the Misquamicut Sewer district, including listening to and transcribing the tapes of the May 3, 1993 Town Council workshop and May 10, 1993 Meeting. I have reviewed the Town s Sewer Ordinance, Chapter 206, the Town s Comprehensive Plan, The Town s Wastewater Facilities Plan of November 1998, including the revisions dated April 29, 1999 and the Ordinance passed on December 13, 1999 adopting the same, and a prior Sewer Ordinance, Chapter 822, dated June 22, Chapter 206 SEWERS states as follows: Discussion ARTICLE II Expansion, Extension and Maintenance of System Extensions within locus authorized by Department of Public Works. The Department of Public Works shall authorized sewer main extensions within those portions of the Town as delineated in the shaded portions of that certain map of the sewer district, Town of Westerly, dated April 11, 1988, and on file with the Town Clerk and referred to as the locus, and in which the developer or owner bears all costs and 2

3 expenses of such sewer extension, including all construction costs for extending the sewer main and the necessary lateral lines. The owner or developer shall indemnify the Town from any loss or damage that may directly or indirectly be occasioned by the installation of such extension. Any extension proposal, which would result in any cost to the Town shall require approval of the Town Council after public hearing. The Department of Public Works shall have the control, management and care of construction, maintenance, and operation the system of sewers and any of the public streets and highways within the locus, subject to such rules and regulations as the Town Council may from time to time by ordinance prescribe Extensions outside locus authorized by Town Council. Extension of the sewer system outside of the locus described in shall be authorized solely by the Town Council after public hearing. The Town Council shall provide such terms and conditions under which any person not within the locus may enter and connect with such sewer system. On or about November 20, 1985, Udo and Jane Schwarz petitioned the Town Council for a right of entry into the existing Town sewage system at the junction of Winnapaug and Airport Roads in order to provide a sewage system for the development of a hotel and restaurant on property they owned on Atlantic Avenue Plat 165, Lots 279, 280 and 28. The line was to run westerly to Winnapaug Road and then northerly up Winnapaug, and across Shore Road, to the juncture of Winnapaug and Airport Road. The petition was advertised for public hearing on August 25, 1986 and heard on September 22, The minutes of the meeting indicate that the Petition was not an ordinance proposal, but a request to tie into the existing sewer facility at Schwarz own expense. It was envisioned that the Town would eventually acquire the system. Therefore, Schwarz would build according to specifications required by the Town in preparation for the same. The Council reserved decision on the Petition until November 10, At the meeting, only 4 of 7 councilors voted on the petition. The Town Solicitor, John Levanti, objected to the decision being made by only 4 councilors and opined that the decision was premature because of the lack of information from all agencies required to review the plan. Further, he cautioned the Council that Misquamicut was not in the sewer district. The Motion made by Councilor Comolli was as follows: That the Council approve the extension of sewers into the Misquamicut area subject to approvals of all proper authorities Town and State who will ensure that the project proceeds correctly. The Motion passed 3 to 1. Nearly two years later, by letter dated October 13, 1988, then Town Manager, Timothy King, informed Mr. Schwarz that the vote taken at the meeting in November of 1986 was insufficient to give preliminary approval to the proposed sewerage extension because four favorable votes were required by Town Council rules. 3

4 The validity of that vote was the subject of the Schwarz case. The Court found that there were two conflicting rules in reference to what constituted a valid vote. The Charter, however, trumped the Council rules, so, the 3 to 1 vote was sufficient to approve the petition. Schwarz never moved forward with construction. In 1989, the Rhode Island Supreme Court decided another case which shed some light on the Town s authority when it came to regulating and expanding sewers, although it did not involve Misquamicut. Westerly Residents for Thoughtful Development, Inc., et al. v. Joseph Brancato et al., held that Westerly s power to expand and maintain the sewer system is inherent in its home rule charter. This decision overturned the Superior Court s order which had enjoined the Town from expanding its sewer district in Westerly. The Misquamicut issue resurfaced in 1993, when John Strafach, now the owner of Paddy s, proposed to connect to the Town s sewer system. In a letter to Town Council President Richard Comolli, dated May 6, 1993, DEM acknowledged that the terms of the Order of Approval for Mr. Strafach concerned his property only, but that DEM had agreed to allow concurrent installation of a 6-inch line with certain restrictions. The primary restriction is that expansion of the sewer system to Misquamicut area must be identified as necessary in a Wastewater Facilities Plan (WWFP), as agreed to by the Town. The correspondence noted that the issue regarding whether the Town had voted to extend the district, or whether or not to issue Mr. Strafach the permits for installation, were local issues. An Interoffice Correspondence dated May 7, 1993 contains the following statement from Anthony F. Chiaradio, Jr, the Director of Public Works, In accordance with the Town Council request, the Public Works Department is recommending that the Misquamicut Fire District be included in the sewer district and that the 4 inch and 6 inch force mains and the 12 inch gravity main section be installed. He acknowledges the letter from DEM and states that the 4 inch line is for Mr. Strafach s property and the 6 inch line is for future use, subject to approval of DEM and the Town s Wastewater facilities plan. At the Town Council Meeting of May 10, 1993 the Council, under New Business, Misquamicut Sewer Lines Strafach, voted 4 to 3 to Ratify and Confirm a 5 to 2 consensus that the Misquamicut Fire District is in the Sewer District. The consensus was taken at the Council s workshop on May 3, It was at, or around this time period that the sewer map was amended to include the MFD, ostensibly as a result of the May 10, 1993 vote. On December 13, 1999, five and one-half years later, the Council passed an Ordinance adopting the Wastewater Facilities Plan and the Response to Comments after public hearing thereon. Comment No. 5 states, It should also be noted that the Town has been aware of water quality concerns stemming from Misquamicut for quite some time and Misquamicut was incorporated into the Town s sewer District in

5 The 1988 reference is most likely associated with the Schwarz case. In my research, I found that it was a commonly held misconception that the Schwarz case placed Misquamicut in the sewer district. (For that reason, I requested the case be brought from the Superior Court archives so that I could review it.) The Town s Comprehensive Plan, adopted February 8, 2010, after public hearing and comment, also identifies Misquamicut as being in the Sewer District. In Section on page 35, it states, There are areas within the Westerly sewer District to which sewer service has not been extended; these include the Misquamicut residential area, Mount Moriah/Springbrook, Apache Drive/Ledward Avenue, and Avondale/Winnapaug Road. Conclusion It is obvious that there are conflicting opinions and materials regarding the inclusion, or not, of Misquamicut in the sewer system. It is evident, however, that the same was contemplated and recommended by past Councils and administrations, through the authorization of the private expansion to Schwarz and Strafach. Further, it is certain that the Council has the authority to expand the sewer district, pursuant to Westerly Residents for Thoughtful Development. An expansion of the sewer district, historically, and under the Town s current ordinance, however, requires a Public hearing. Public hearings were held on the private extensions as noted above, and on the Comprehensive Plan, and the Wastewater Facilities Plan; but a public hearing on the sole issue of expansion of the sewer district into Misquamicut was never held. Therefore, in order to extinguish any doubt, and to solidify the validity of the process, I am recommending that the Council allow me to draft an Ordinance to expand the sewer district to include the Misquamicut area. The Ordinance will have to be advertised for a Public hearing. 5