CRMC hails RI Court decision on Westerly property owner as win for wetlands

July 5, 2005, WAKEFIELD — The Rhode Island Coastal Resources Management Council is calling a decision from the Washington County Superior Court, dismissing a case by a Westerly property owner trying to develop 18 acres of salt marsh for 19 years, a victory for the public and the continued protection of wetlands.

The suit was a “takings” claim in which the landowner, Anthony Palazzolo, sought $3.1 million in compensation from the state. Palazzolo’s assertion fell under the Fifth Amendment of the United States Constitution, which states “…nor shall private property be taken for a public purpose without payment of just compensation.” Palazzolo argued that he was entitled to compensation for the alleged taking of property (the majority of which is salt marsh) adjacent to Winnapaug Pond. His contention that the land below the mean high water mark was his was overruled; the court determined that under the Public Trust Doctrine, title to the land is held by the state and as dictated by the state (CRMC), is unsuitable for development.

Palazzolo had planned to develop the marsh into a 74-lot subdivision, but according to the court and CRMC, a proper application for the work was never filed. In the ruling, the property owner apparently conceded that applicable zoning regulations would prohibit the 74-lot proposal. Palazzolo, however, based his compensatory claim on two alternate premises. He claimed that he should be compensated based on a full build-out of the site (a 50-lot subdivision). He also argued that if he was prohibited from developing half of his property because it lies below the mean high water mark, compensation should be based on his engineer’s proposed 17-lot development.

In the 32-page decision, Superior Court Judge Edwin Gale dismissed the case, stating, “[t]he 18 acres of land (74 lots) at issue are almost all near pond elevation and much of the site is subject to daily tidal inundation.” Some of the lots, according to the court decision, are actually underwater. “This Court…finds that the evidence is to the effect that not only has there never been a subdivision near Winnapaug Pond which rivals the scope of that proposed by Palazzolo, but none exists anywhere on the Rhode Island shore.”

In his decision, Gale states that the effects of increased nitrogen from the proposed development of the marsh would “almost certainly result in an ecological disaster to the pond. Both water quality and wildlife habitat would be substantially harmed.” The judge added that the proposed high density subdivision is also unsuitable for the environment of the salt marsh.

Palazzolo had made a number of claims regarding the survey of the property, questioned which year’s mean high water mark should be used, and claimed that because the pond is subject to periodic closing of its breachway, that it is not a true tidal pond, and therefore is not subject to the Public Trust Doctrine. The court found that the Winnapaug Pond is tidal, and that the survey was accurate and established a mean high water mark as of 1986, proving that almost exactly 50 percent of Palazzolo’s property is below mean high water. Therefore, the court ruled that it is subject to the Public Trust Doctrine.

The Public Trust Doctrine provides states with the legal authority to hold title to all land below the high water mark in a proprietary capacity for the public benefit. Judge Gale highlighted the benefits of such land held in trust by the state.

“Lands under tide waters are incapable of cultivation or improvement in the manner of lands above high water mark,” the decision stated. “They are of great value to the public for the purposes of commerce, navigation and fishery. Their improvement by individuals, when permitted, is incidental or subordinate to the public use and right.”

The court also found that, ”[it] is all too obvious that government need not compensate a property owner each and every time it enacts regulations which are designed to promote the health, safety and welfare of the people.”

CRMC Chairman Michael M. Tikoian commented on the decision and applauded the court ruling and the work of Michael Rubin of the Rhode Island Office of the Attorney General.

“The CRMC praises the Superior Court’s decision that denial of a Westerly property owner’s application to fill 18 acres of valuable salt marsh did not constitute a taking of his property which required compensation,” he said. “This validates the Council’s prohibition of wholesale filling of coastal wetlands and demonstrates that the Council, throughout this application process, has made the appropriate decisions and considered all of the appropriate factors. While the CRMC tries to balance a property owner’s rights to build with the impacts to the coastal environment, this demonstrates that, in some instances, the property owners try to go too far.”

Brian A. Goldman, legal counsel for the Council, added, “After fighting this proposal all the way up to the United States Supreme Court, the CRMC feels vindicated by the Superior Court’s decision in favor of the CRMC. We have always felt this proposal was unrealistic and would result in major damage to Rhode Island’s coastal environment, and we are gratified that the Superior Court agreed with our position.”