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J.M. Mills, Inc. v. Murphy

ELR Citation: 6 ELR 20455
Nos. No. 73-301, 352 A.2d 661/8 ERC 1753/116 R.I. 54, (R.I., 02/26/1976)

The Rhode Island Supreme Court affirms a lower court decision rejecting challenges of improper legislative delegation, denial of equal protection, and taking without compensation to the Rhode Island Fresh Water Wetlands Act provisions requiring state agency and municipal approval of wetlands alterations. Before reaching the merits, the court determines that the law to be considered on appeal is that which exists at the time of appeal, not at the time of the lower judgment. As to the delegation question, the court holds that the protective purposes and limited geographical scope of the Wetlands Act provide agency determinations, which must be made "in the best public interest," with sufficiently precise standards. Furthermore, municipal council consideration of wetlands applications are guided by the same standard. Neither of these delegations deprives landowners of substantive or procedural due process, since landowners are entitled to notice, hearing, and judicial review. Nor does the Act deny equal protection to freshwater wetlands owners, who must initiate permit proceedings, since any differences in the Coastal Wetlands Act permit procedures, which are initiated by the state, are justified by greater development pressures, more extensive state ownership of coastal wetlands, and need for uniform state action in a highly interdependent area. As tothe takings claim, the court holds the permit provision constitutional on its face, since it reserves to the courts the question of whether it is unconstitutional as applied. Furthermore, an alternative procedure, whereby the landowner can be compensated for the wetland's value qua wetland through a de novo judicial determination that the proposed aheration will not essentially change the land's character, while enacted as a gratuitous offer of the state that does not replace judicial review of the takings aspect of the agency's permit decision, does provide further protection from possible takings by arbitrary state action.

A dissent argues that the legislative history of the Act shows that municipalities were given unfettered discretion to approve or reject freshwater wetlands permit applications. This discretion is unconstitutional, since their consideration is of a judicial nature requiring adherence to rudimentary due process protections. In addition, the dissent notes that while preserving wetlands is commendable, the alternative compensation arrangement must not distract attention from the possibility that its operation may take a landowners' remaining land through decreased property values.

Counsel for Plaintiffs
Dominic F. Cresto
111 Westminster
Providence RI 02903
(401) 861-6100

Counsel for Defendant
J. Peter Douerty Special Asst. Attorney General
411 Providence County Courthouse
Providence RI 02903
(401) 831-6850

Kelleher, J., dissents in part and concurs in part.