Stephen G. Fagan, et al. v. James Miller, et al.

STATE OF RHODE ISLAND
NEWPORT, SC. SUPERIOR COURT
(FILED: March 21, 2024)
STEPHEN G. FAGAN, CHRISTINE S. :
FAGAN, SUSAN COHEN CWEIKA, :
CRAIG W. SCHMIDT, ANNE R. :
SCHMIDT, ROBERT R. NOVICK, and :
ALYSON F. NOVICK :
:
Appellants, :
v. : C.A. No. NC-2021-0031
:
JAMES MILLER, CHRISTOPHER :
SOUZA, ERIC KIRTON, THOMAS :
SILVEIRA, and THOMAS HEANEY, in :
their official capacities as Members of the :
ZONING BOARD OF REVIEW OF THE :
TOWN OF MIDDLETOWN; and :
EUGENE GOLDSTEIN :
:
Appellees. :
DECISION
LANPHEAR, J. Before this Court for decision is Appellants’ appeal from a January 13, 2021
decision of the Middletown Zoning Board of Review.
The Middletown Planning Board (Planning Board) considered and rejected Eugene S.
Goldstein’s (Mr. Goldstein) application for preliminary and final plan approval for a proposed
eight lot major subdivision. Mr. Goldstein appealed to the Middletown Zoning Board of Review
which sat as the Planning Board of Appeals (Zoning Board). The Zoning Board reversed the
Planning Board.1
The matter was then appealed to this Court by abutting and adjacent property owners who
1 As background, there are three stages of review for land development and subdivisions: (1)
“master plan”; (2) “preliminary plan”; and (3) “final plan.” See G.L. 1956 § 45-23-39(a).

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seek reversal of the Zoning Board decision and thereby denial of the plans.
Jurisdiction is pursuant to G.L. 1956 § 45-23-71.
I
Facts and Travel
Mr. Goldstein is the owner of approximately 9.19 vacant acres of real property located
0.3 miles to the east of the intersection of Prospect Avenue and Aquidneck Avenue (the
Property).2 See Zoning Board Hr’g Tr. 6:8-11, Dec. 3, 2020 (Zoning Board Tr.). With desires to
develop an eight-lot subdivision on the Property, Mr. Goldstein submitted a proposal for such to
the Planning Board in 2016, which approved the master plan in February 2017. See id. at 6:8-14,
20-24. However, members raised concerns about the quantity of well water which would be
available after the construction of the subdivision, as residents in that area rely on well water. See
id. at 9:6-17.
To combat concerns, Mr. Goldstein worked with engineers and made changes to his
proposal to satisfy the town engineer’s feedback. See id. at 10:3-14. On October 9, 2019, the
Planning Board considered Mr. Goldstein’s joint preliminary and final plan. See generally
Planning Board Hr’g Tr., Oct. 9, 2019 (Planning Board Tr.). There, engineer Lynn Small stated,
“the stormwater system for this project will result in an improvement,” and engineer Paul
Aldinger opined, “based on a reasonable degree of scientific certainty . . . that developing the
eight bedrock wells is not likely to cause any negative impacts on the nearby wells because the
demand is real low[.]” Id. at 21:16-18; 59:1-4.
2 The property is further identified as Assessor’s Plat 121NW, Lot 66-A.

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Thereafter, neighbors abutting the Property (neighbors)3 raised their concerns with the
well water. One neighbor stated, “we do have well issues. My direct neighbor abutting me . . .
had to dig deeper. . . . The McCarthys across the street from them, their well went dry this year.
My neighbor two doors down, their well went dry this summer.” Id. at 97:17-23. Another
expressed concern with the “quality” and “longevity of [his] well” once the eight new houses are
built because they will take from the same water supply. Id. at 99:12-13. Another neighbor
stated, “we noticed a change in our water, the quality of our water. We had it tested and suddenly
there was calcium in the water[.]” Id. at 101:15-17.
On October 18, 2019, the Planning Board released its written decision (Planning
Decision) denying Mr. Goldstein’s proposal, reasoning that “the application as presented would
not allow the Board to make the required finding that there will be no significant negative
environmental impacts from the proposed development as shown on the final plan, with all
required conditions for approval.” (Planning Decision 2.) On November 10, 2019, Mr. Goldstein
appealed the Planning Decision to the Zoning Board, asserting “prejudicial procedural error,
clear error and the decision lacks support by the weight of the evidence in the record.” Notice of
Appeal; see also Applicant’s Mem. in Supp. of Appeal.
In consideration of the appeal, the Zoning Board held a hearing on December 3, 2020.
Mr. Goldstein argued that the only competent evidence before the Planning Board was from the
two experts and that the neighbors’ testimony was speculative; Appellants insisted that the
neighbors’ testimony was reliable given their firsthand knowledge of the wells; and the Planning
Board contended that the expert testimony was based on speculation. (Zoning Board Tr. at 23-
3 Neighbors who testified include: Appellants Stephen G. Fagan and Christine S. Fagan; Jane
Beezer, who lives across from the Property; Kevin McCarthy, who lives at Prospect Avenue;
and, Barbara Arrieta, an abutter to the Property. See generally PB Tr. 91:12-114:2.

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27, 42-44, 54-56.)
On January 13, 2021, the Zoning Board issued its decision reversing the Planning
Decision. See generally Zoning Board Decision (Board Decision). The Zoning Board explained:
“While the conclusions of [expert witnesses] differed in several
respects, they both testified that in their opinion, there would be no
significant negative environmental impacts from the installation of
the proposed wells. There was no contrary expert testimony in the
record. Said expert testimony outweighed the lay testimony of
abutting property owners regarding the condition of their existing
wells.” (Board Decision 2.)
Appellants, abutters to the Property, appealed the Board Decision to this Court on two grounds:
(1) that the Planning Decision was supported by competent or substantial evidence and (2) that
the Zoning Board substituted its own judgment for that of the Planning Board, in violation of
§ 45-23-70. See Appellants’ Mem. in Supp. of Appeal (Appellants’ Mem.) 6, 11. This Court
agrees.
II
Standard of Review
Section 45-23-71(a) grants the Superior Court jurisdiction to review decisions from a
zoning board of review, sitting as a board of appeals. Review is governed by § 45-23-71(d):
“The court shall not substitute its judgment for that of the planning
board as to the weight of the evidence on questions of fact. The
court may affirm the decision of the board of appeal or remand the
case for further proceedings, or may reverse or modify the decision
if substantial rights of the appellant have been prejudiced because
of findings, inferences, conclusions, or decisions that are:
“(1) In violation of constitutional, statutory, ordinance, or planning
board regulations provisions;
“(2) In excess of the authority granted to the planning board by
statute or ordinance;
“(3) Made upon unlawful procedure;

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“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence of the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.” Section 45-23-
71(d).
The Court must “‘examine the entire record to determine whether ‘substantial’ evidence exists to
support the board’s findings.’” Mill Realty Associates v. Crowe, 841 A.2d 668, 672 (R.I. 2004)
(quoting DeStefano v. Zoning Board of Review of City of Warwick, 122 R.I. 241, 245, 405 A.2d
1167, 1170 (1979)). Substantial evidence is “more than a scintilla but less than a
preponderance.” Mill Realty Associates, 841 A.2d at 672 (internal quotation omitted).
Section 45-23-70(a) provides that “[t]he board of appeal [the Zoning Board] shall not
reverse a decision of the planning board or administrative officer except on a finding of
prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the
record.” Section 45-23-70(a).4 In reviewing an appeal from a decision of a board of appeal,
“[t]he Superior Court gives deference to the findings of fact of the local planning board.” West v.
McDonald, 18 A.3d 526, 531 (R.I. 2011). “[T]he Superior Court does not consider the
credibility of witnesses, weigh the evidence, or make its own findings of fact.” Munroe v. Town
of East Greenwich, 733 A.2d 703, 705 (R.I. 1999). “[I]ts review is confined to a search of the
record to ascertain whether the board’s decision rests upon competent evidence or is affected by
an error of law.” Id. (internal citations omitted).
4 Section 45-23-70 was repealed by P.L. 2023, ch. 308, § 3 and P.L. 2023, ch. 309, § 3, effective
January 1, 2024. However, the appropriate standard for an appeal is “the law in effect at the time
when the applicant . . . submitted its application for a permit to the zoning board[,]” absent a
“clear expression of retroactive application.” East Bay Community Development Corporation v.
Zoning Board of Review of Town of Barrington, 901 A.2d 1136, 1144 (R.I. 2006). Hence, § 45-
23-70 is applicable.

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III
Analysis
On appeal, Appellants assert that the Planning Decision is supported by substantial
evidence, whereas Mr. Goldstein maintains that the Planning Decision was not supported by
such. See Appellants’ Mem. 6-11; Appellee’s Mem. in Opp’n to Appeal (Appellee’s Opp’n) 5-7.
As summarized above, the Planning Board heard testimony from both experts and neighbors (lay
witnesses).
Our Supreme Court “intended to restrict the reliance on lay witness testimony to . . .
limited circumstance[s].” RBSE Properties, LLC v. Zoning Board of Review of Town of Lincoln,
No. CA PC 05-2591, 2006 WL 572817, at *8 (R.I. Super. Mar. 7, 2006). For example, it will
not give probative force to lay testimony as to issues regarding the effect of a proposed use on
property values or traffic conditions. See Smith v. Zoning Board of Review of City of Warwick,
103 R.I. 328, 334, 237 A.2d 551, 554 (1968); see also Baker v. Zoning Board of Review of City
of Providence, 102 R.I. 134, 135, 228 A.2d 859, 860-61 (1967) (“This bare statement [that action
by the board ‘would increase property values’] given without other supporting evidence or any
qualification in the record as to the expertise of this witness represents a conclusion completely
lacking in any probative force[.]”); Richardson v. Zoning Board of Review of City of Warwick,
101 R.I. 194, 201, 221 A.2d 460, 465 (1966) (“The petitioner’s bare assertion that she felt the
proposed use would depreciate her property is a lay judgment unsupported by any factual data or
background and is not competent evidence[.]”).
Appellees insist that this Court follow the rationale from Polleys v. Ferrazzano, No. PC-
02-5759, 2005 WL 900305, at *1 (R.I. Super. Apr. 18, 2005). In Polleys, the appellee proposed
to build a twenty-two-residence subdivision on a site that had wetlands and protected areas. Id.

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Various individuals testified at the planning board hearings as to the proposal. Id. at *3. An
engineer for the appellee expressed that the proposal “would not contribute in any significant
way to the degradation of the pavement.” Id. A few other experts expressed conclusions in favor
of the proposal, opining that the “new wells for the development would not cause neighbors’
wells to dry or suffer saltwater infiltration.” Id. at *4. A resident, whom the planning board
accepted as an expert due to almost twenty years of experience as a civil engineer, expressed
concerns about the proposal’s traffic impacts. Id. at *3. Notably, she expressed that “she did not
analyze anything that the applicant had actually proposed building.” Id. Another resident,
accepted as an expert in hydrogeology,5 testified that she found errors in the other engineer’s
analyses; however, she too conceded “that she had not done any analysis of the direction flow of
the groundwater herself.” Id. at *5. The planning board voted to deny the preliminary plan. Id.
The zoning board reversed, reasoning that the planning board’s decision was “against the
overwhelming weight of the evidence[.]” Id. at *6.
On appeal to the Superior Court, the Polleys claimed that the zoning board exceeded its
authority by substituting its judgment for that of the planning board. Id. The Court concluded
that “[t]he testimony cited by the plaintiffs did not relate to facts, but instead to the
unsubstantiated concerns of the plaintiffs. . . . It is quite clear that the objectors have not directly
observed the effects of this yet-to-be built subdivision.” Id. at *12. The Court further reasoned,
“[i]t is equally clear that the Planning Board erroneously relied on lay opinions on matters
properly addressed by experts.” Id. Moreover, the Court distinguished Polleys from Restivo v.
Lynch, 707 A.2d 663 (R.I. 1998), explaining that “[i]n contrast, the lay testimony in Restivo
5 See Merriam-Webster Dictionary (defining hydrogeology as “a branch of geology concerned
with the occurrence, use, and functions of surface water and groundwater”).

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consisted of objectors’ statements that they had observed the property to be developed, and that it
did not drain well.” Id. (citing Restivo, 707 A.2d at 671).
In Restivo, the petitioner submitted a proposal for a subdivision to the city planning
board. Restivo, 707 A.2d at 664.6 The planning board had concerns about the subdivision’s
impact on the drainage system for the surrounding properties; therefore, it recommended that the
petitioner hire an engineer to address those concerns. Id. at 665. The petitioner did so and
submitted a revised proposal; the planning board voted to recommend approval subject to
various conditions. Id. At the city council hearing, experts opined that “this project will not
make—should not make the drainage situation worse.” Id. at 670 (emphasis in original). Some
council members also testified based on personal observations, explaining they “traveled to the
area of the proposed subdivision on an occasion two days after a rainfall” and could see that the
land was still wet. Id. at 667. Other council members testified as to their “personal knowledge
that the area of the proposed subdivision was a high-density water area and that neighbors in the
area had experienced flooded basements[.]” Id. Another council member was familiar with the
problems in the area, including flooded cellars causing basement floor tiles to be lifted, rugs to
be curled, and furniture to be destroyed. Id. Neighboring homeowners also testified as to
6 The Court notes that a different appeals procedure existed in March 1995 when the petitioner in
Restivo v. Lynch, 707 A.2d 663 (R.I. 1998), submitted a proposal to the city planning board. In
Restivo, the petitioner properly petitioned pursuant to G.L. 1956 § 45-23-19 (1991 Reenactment),
which stated:
“The town council of any town or the city council of any city may
act as the plan commission, and, in that event, no board of review
need be appointed, and appeals from the decisions of the council
acting in the capacity of plan commission shall lie directly to the
superior court for the county in which the land is situated. . . .”
Section 45-23-19 (1991 Reenactment).
Effective December 31, 1995, § 45-23-19 was repealed. See P.L. 1994. ch. 92 § 2. Today,
zoning boards of review hear appeals. See § 45-23-57. Thus, while the appeals procedure in
Restivo differs from the procedures in place today, the Court nevertheless relies on Restivo for
the factual analysis applied by our Supreme Court.

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“chronic problems with basement flooding and poor drainage in [their] back yard.” Id. at 668.
The city council, however, denied the petition. Id. at 665.
On appeal, the petitioner argued the denial was “arbitrary, capricious, and characterized
by an abuse or a clearly unwarranted exercise of discretion[.]” Id. The Superior Court affirmed
that “there was competent evidence upon which the council rested its decision.” Id. It explained
that “council members may rely on their own expertise to the same degree and under the same
conditions as can members of a zoning board.” Id. at 667. Thereafter, the petitioner, relying on
the same claims as before the Superior Court, appealed to the Supreme Court. Id. at 666.
The Supreme Court held that the evidence in the record justified denial of the proposal,
relying on the fact that several council members and homeowners testified as to their personal
observations at the council hearing. Id. at 668. It emphasized that “there is no talismanic
significance to expert testimony[,] [i]t may be accepted or rejected by the trier of fact, . . .
particularly when there is persuasive lay testimony on the actual observed effects of prior
residential construction.” Id. at 671. The Supreme Court concluded that the “lay testimony [was]
competent in respect to the presence of water in one’s basement and such lay testimony
describing physical facts and conditions does constitute evidence from which the planning board
could fairly draw inferences.” Id.
This Court finds that Restivo controls in the case at bar. The neighbors’ testimony
concerning water supply was much more akin to witnesses describing the presence of water in
their basement, as opposed to analyzing traffic data or property values. See id.; Smith, 103 R.I. at
334, 237 A.2d at 554; Baker, 102 R.I. at 135, 228 A.2d at 860-61. The neighbors relied upon
their own observations and experiences with the well water and disclosed those observations.
Indeed, like the residents in Polleys, the neighbors here have yet to directly observe the impact of

10
the eight-lot subdivision on their well water. Polleys, 2005 WL 900305, at *12. However, the
neighbors testified that the current supply of well water cannot meet the residents’ demands.
Thus, it was not an error to conclude that the record lacked significant evidence that the well
water would not meet the water demands for an additional eight residences. It was appropriate
for the Planning Board to infer that future water supply would not meet additional demand. The
neighbors testified as to current conditions of the well; they were not speculative as to the impact
of the proposal, rather they testified on personal experiences and observations as to the current
well water.
Ironically, Engineer Aldinger limited his conclusions because he did not drill a test well
on the Property. See generally PB Tr.; see also Appellants’ Mem. 6-8. Before the Planning
Board, Engineer Aldinger testified that much of his research was based on assumptions and
general data. See PB Tr. at 40:4-5 (“we’re assuming the maximum daily demand would be 460
gallons per day”); id. at 43:7-8 (“[w]e assumed that [the average precipitation] was pretty similar
to the climatological station in Kingston”); id. at 44:8-9 (“the average annual run off in
Middletown is assumed to be approximately the same as”); id. at 56:7-8 (“we’re assuming that
35% of the precip [sic] actually gets recharged”) (emphasis added for all). The other engineers
made similar conclusions.
In reviewing the record, this Court concludes that the lay testimony relied upon
personally observed events. Thus, the trier of fact, the Planning Board, was welcome to accept
or reject the expert’s testimony to the contrary. See Restivo, 707 A.2d at 671. The Planning
Board heard the testimony firsthand and could assess witness credibility. See Mendonsa v.
Corey, 495 A.2d 257, 263 (R.I. 1985) (explaining that the body that “had before it the individual
witnesses and had the opportunity to judge their credibility, was in a better position . . . to resolve

11
the conflict”). The Planning Board concluded that the proposal should be denied, in accordance
with the neighbors’ testimony regarding the quantity of water in the wells. This Court concludes
that such testimony was sufficient to support its denial of the proposal.
There is a real and important role for neighbors and other witnesses to be heard at the
Planning Board hearing. The statutes invite their participation and testimony at the public
hearing. Where, as in the case at bar, they testify concerning actual occurrences and known
facts, their testimony can be vital in apprising a local board in finding facts and drawing
inferences. Their participation is neither a sham nor a façade. It may be vital to allow the local
board to perform its fact-finding function.
The Board Decision displayed a clear substitution of factfinding and credibility
determinations which was the Planning Board’s prerogative. See § 45-23-70(a). At the Zoning
Board hearing, members explicitly stated that they credited the experts’ findings over the
neighbors’ testimony. See Zoning Board Tr. at 92:12-13 (“I’m going to go with the expert
witnesses in this case”); Zoning Board Tr. at 92:20-22 (“the expert witness was competent. I’m
going to vote in favor of the appeal”); Zoning Board Tr. at 93:6-9 (“I believe that the experts
should know what’s going on . . . . I believe the expert testimony was valid”). Moreover, the
Board Decision highlighted this conclusion, stating, “expert testimony outweighed the lay
testimony of abutting property owners regarding the condition of their existing wells.” (Board
Decision 2) (emphasis added). Accordingly, the Court concludes that the Zoning Board
substituted its judgment for that of the Planning Board when it gave greater weight to the expert
testimony. See Pawtucket Transfer Operations, LLC v. City of Pawtucket, 944 A.2d 855, 859
(R.I. 2008); § 45-23-70(a).

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IV
Conclusion
For the foregoing reasons, this Court reverses the Board Decision, thereby affirming the
Planning Decision and denying Mr. Goldstein’s applications. Counsel shall submit an
appropriate order for entry. Any requests for attorneys’ fees shall be submitted to this Court
within fifteen days.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: Stephen G. Fagan, et al. v. James Miller, et al.
CASE NO: NC-2021-0031
COURT: Newport County Superior Court
DATE DECISION FILED: March 21, 2024
JUSTICE/MAGISTRATE: Lanphear, J.
ATTORNEYS:
For Plaintiff: J. Russell Jackson, Esq.
For Defendant: David P. Martland, Esq.
Peter B. Regan, Esq.