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Milardo v. Coastal Resources Management Council of R.I.

Citation: 12 ELR 20133
No. No. 79-245-M.P., 434 A.2d 266/(R.I., 09/01/1981)

The court upholds the constitutionality of the State of Rhode Island's denial of plaintiff's application for a sewage disposal system permit for a waterfront residence. Initially, it rejects plaintiff's claim that the denial of the permit is an uncompensated taking of his property in violation of the United States and Rhode Island Constitutions. Since the basis for the permit denial was that plaintiff's system would discharge pollutants into state waters, the court finds the state's action to be an exercise of its police power to protect public health and safety rather than a form of property regulation. The court upholds the denial on this basis and does not address plaintiff's inverse condemnation claim. The court also holds that the statute establishing the state's Coastal Resources Management Council does not create an unconstitutional delegation of legislative power. In view of the necessity of agency expertise in the area, the legislature's clear statement of public policy and its careful delineation of the council's jurisdiction satisfy the applicable legal standard. Finally, the court holds that while plaintiff's obligation to obtain approval for his sewage disposal system from both the council and the state's Department of Health may present difficulties, the legislature's creation of such a scheme was neither in excess of its authority nor a violation of plaintiff's rights.

Counsel for Plaintiff
Thomas S. Hogan, Donald J. Packer
Hogan & Hogan
5th Floor, 32 Westiminster St., Providence RI 02903
(401) 421-3990

Counsel for Defendant
Dennis H. Esposito
Goldman & Biafore
72 S. Main St., Providence RI 02903
(401) 274-1300