published in Providence Business News (March 16, 1992)
When Dr. Richard Radcliffe and his wife Edith purchased land on the Sakonnet River in Little Compton in the spring of 1975, they began building a summer retreat for their family. What followed was a regulatory nightmare that spanned 15 years, consumed tens of thousands of dollars in legal fees, produced a court and administrative record thicker than the Manhattan telephone directory, and still has not resulted in construction of their five room bungalow.
The Radcliffes fell in love with a spectacular piece of property with a private beach in June, 1974. Before purchasing, they wanted to insure they would be able to build. It took nearly a year to clear title, obtain a building permit and a sewage system permit. Their attorney inquired of the Coastal Resources Management Council (CRMC), and the Radcliffes’ understood that CRMC did not have jurisdiction over the property.
After purchasing the property they installed a foundation, and their troubles began. The Radcliffes’ legal travails could not possibly be set forth here – it took 13 pages of their legal brief to state the Radcliffes’ comings and goings from various courts, CRMC hearings, town proceedings, and Department of Environmental Management (DEM) proceedings.
Despite issuance of a building permit, the Town Council voted the property was a public right of way open to use by town residents. CRMC ordered construction halted. The Radcliffes sued the town, settling three years later with an agreement allowing construction. The Radcliffes challenged CRMC’s jurisdiction and its order halting construction, resulting in numerous CRMC hearings. CRMC ordered the Radcliffes to remove their foundation. The Radcliffes sued. The superior court ordered CRMC to allow construction, with conditions established by CRMC. DEM suspended the sewage system permit. The Radcliffes appealed. The Attorney General’s Environmental Advocate moved to intervene before CRMC. The Radcliffes challenged this in court. CRMC halted construction of a relocated sewage system newly approved by DEM. CRMC imposed 34 conditions on further construction on the property.
By this time is was 1990, and the Radcliffes were before the Rhode Island Supreme Court on three different petitions for relief.
The Supreme Court issued its decision in January, 1991. The court found that CRMC exceeded its statutory authority by making no finding of “reasonable probability of … damage to the coastal environmental”. The court also found that CRMC did not have jurisdiction over the Radcliffes’ property and that CRMC violated state law by failing to support its order with any facts.
The court ordered CRMC to allow construction. In Mr. Justice Kelleher’s words, “the Radcliffes’ wait has been an extraordinarily and unjustifiably long wait … At this point any further delay would be intolerable”.
Although observers may disagree whether construction of a house near a salt marsh, dunes, and a waterbody is environmentally sound, there should be little disagreement that resolution of this issue should not consume the years, money, and regulatory and judicial resources expended in this action. Environmental regulation should not be the bureaucratic equivalent of the neutron bomb – leaving the land and buildings intact but wiping out the people.
The Radcliffes’ experience is extreme, but not unique, and the problem is not confined to any one regulatory agency.
The General Assembly has already created an “environmental advocate”. It may now be appropriate to institutionalize some form of “environmental liaison” to arbitrate disputes among agencies on projects with overlapping jurisdictions. Permit applicants should not be trapped in a cross fire between regulatory agencies.
Similarly, a forum to coordinate environmental permitting for projects of economic importance to the state may be appropriate, complementing a new law expediting permitting for projects of “critical economic concern”. Such a “Siting Board” now coordinates most state permitting for complex energy construction projects to prohibit one agency or municipality from blocking or delaying a major energy project.
As for the Radcliffes, their sewage system has been installed, but their home is not yet constructed, and they are still in court. They have sued CRMC for compensation, alleging a regulatory “taking” of their property. The Radcliffes are philosophical and not bitter about their experience. However, it has also left them saddened. “We feel we won, but they still beat us”, Dr. Radcliffe said. He explained they purchased the property in 1975 for the enjoyment of their eight children, then ranging in age from 5 to 15 years old. “They ruined our enjoyment of the property, which we will never be able to recover. Our kids are now adults and have left home.”
There are not only economic costs to regulatory gridlock, but human costs as well.