01:00 AM EST on Friday, December 7, 2007

By Maria Armental

Journal Staff Writer

CHARLESTOWN — A Superior Court judge has overturned a Zoning Board of Review decision that had denied an application for a special use permit to install a septic system.

In a decision filed Nov. 30, Washington County Superior Court Judge O. Rogeriee Thompson said the board’s Nov. 18, 2003 decision “was affected by error of law and constituted an abuse of discretion as it impermissibly ignored the substantial evidence that had been adduced before it.”

“This court therefore finds that the Board lacks the statutory authority to so arbitrarily and capriciously predicate denial of a requested special use permit on its lay determinations regarding a [state Department of Environmental Management]-approved [individual sewage disposal system],” Thompson wrote, remanding the matter back to the board “to grant the requested special use permit,” subject to final approval from the state Coastal Resources Management Council.

The land owners, Hamilton Migel Jr. and John K. Dunn, may also be entitled to legal fees, Thompson said.

The amount is yet to be determined.

The town is expected to discuss the latest court ruling Monday, specifically whether to appeal the decision or ask the court to reconsider the issue of attorney’s fees.

Town Solicitor Robert E. Craven — who had already expressed concerns with the legal basis of the town’s case — said he will recommend asking the court to reconsider only the issue of attorney’s fees.

“I think the law is pretty clear that the basis for the [Zoning Board’s] denial is based on unsound law,” Craven said. “The judge was right.”

“If you are going to criticize or reverse in effect a state agency, DEM, that has granted an ISDS permit,” Craven said, “you have to do so on the basis of expert, scientific testimony. There was no expert testimony. There was no scientific testimony.”

The board, he said, has already “taken steps to remedy the problems,” hiring an expert to advise it in such applications.

In 2003, Migel and Dunn sought a permit to install a septic system on a 3.1-acre lot on Arnolda Round Road. They planned to build a single-family house.

The land was designated wetlands and falls in an area marked by the Federal Emergency Management Agency as flood zone A, which means it is within the 100-year flood zone but has no base flood elevations or depths determined according to the flood insurance rate map.

The town’s ordinance requires a special use permit to install an ISDS within a flood zone A. The ordinance also sets a minimum setback of 100 feet from coastal wetlands.

During testimony, Donald Jackson, a surveyor and septic system designer for the applicant, told the board the proposed system would meet the coastal council’s ’s 50-foot setback “but it is impossible to meet the ordinance’s one-hundred foot setback due to the physical layout of the property,” according to Thompson’s ruling.

Some neighbors, Thompson said, objected to the project, saying it “would damage the area’s fragile ecosystem.”

No expert testimony was presented to support that assertion, Thompson said.

Instead, she said, the board’s 3-2 denial “rested on the findings of two Board members that installation of an ISDA would pose a threat to nearby drinking water supplies.”

Moreover, Thompson said, those concerns appear to have been addressed by the DEM, which approved the proposed design on Jan. 28, 2003.

“Such approval indicates that the DEM was satisfied that construction would not be contrary to public health, the public interest, or environmental quality,” Thompson said.

An appeal on the property’s tax assessment is pending, said Margaret L. Hogan, who represents Migel and Dunn.

Hogan said the town continued to tax the property as a buildable lot after the zoning board’s denial, which essentially would have rendered the lot undevelopable.

It is the second such reversal in Charlestown.

Last year, Superior Court Judge Allen P. Rubine — who had started hearing the Migel and Dunn case — overturned the board’s refusal to grant a special-use permit to Kevin Kulak, saying the boards’ decision was “clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record.”

marmenta@projo.com