Amarant v. city of Newport, Utilities Department, Water Division, et al.

STATE OF RHODE ISLAND
PROVIDENCE, SC. SUPERIOR COURT
[FILED: July 28, 2023]
LEON AMARANT, :
Appellant, :
:
v. : C.A. No. PC-2021-02341
:
CITY OF NEWPORT, UTILITIES :
DEPARTMENT, WATER DIVISION; and :
the RHODE ISLAND DIVISION OF PUBLIC :
UTILITIES AND CARRIERS, :
Appellees. :
DECISION
CRUISE, J. Before the Court for decision is the appeal of Leon Amarant (Appellant) from the
State of Rhode Island Division of Public Utilities and Carriers’ (the PUC) March 5, 2021 Report
and Order (the Decision). Appellant timely appealed under the Administrative Procedures Act
(the APA). See Docket, PC-2021-02341. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
I
Facts and Travel
A
The Parties and Terminology
Since 1936, the City of Newport (the City) has owned and operated a water system that
services the City, the Town of Middletown, and the southern portion of the Town of Portsmouth
(the Water System). (Tab 12 – Hearing Transcript, Day 1 (July 28 Tr.) at 26-27, 54.)1 The City’s
1 Documents in the Certified Record are not marked as enumerated exhibits and will be identified
in this Decision by the tab number followed by the document’s title that is listed on the Record
page titled “Designation of Record of Administrative Proceeding.” Many of the documents in the
Certified Record are not internally paginated; however, for clarity purposes, any citation to a page

2
Department of Utilities Water Division (the NWD) maintains the records for the Water System
which includes Main Books and Register Books that date back to 1878. Id. at 26; see also Tab 9 –
Hearing Transcript, Day 4 (Sep. 3 Tr.) at 65-69.
The Main Books document the locations of water mains throughout the Water System.
(Sep 3 Tr. at 65:3-25.) Water mains are “water pipe[s], owned, operated and maintained by a water
utility, which is used for the purpose of transmission or distribution of water but [are] not water
service pipe[s].” Tab 7 City of Newport, Utilities Department, Water Division’s Exhibits (the
NWD’s Exhibits) Ex. 8 at § 1.2(J); see also Sep. 3 Tr. at 65:23-66:2. The Register Books document
the locations of service pipes throughout the Water System and each property’s connection to a
service pipe is assigned a separate register number in the Register Books. See Sep. 3 Tr. at 68:23-
69:24. Service pipes are “the connection from the water utility’s mains to the curb stop, and the
customer’s connection from the curb stop to the meter, and includes all of the pipe, fittings and
valves necessary to make the connection.” The NWD’s Exhibits Ex. 8 at § 1.2(O); see also Sep. 3
Tr. at 68:14-22. A service connection is “the point of connection of the customer’s piping with
the curb stop owned by the water utility.” The NWD’s Exhibits Ex. 8 at § 1.2(N); see also Sep. 3
Tr. at 68:7-13. A curb stop is “the company’s shutoff valve located at the service connection.”
The NWD’s Exhibits Ex. 8 at § 1.2(E).
Appellant is the owner of 25 Crescent Road (formerly 39 Crescent Road)2 in Middletown,
Rhode Island (the Property) which receives water from the Water System. (Tab 1 Division Order
number in this decision refers to the internal pagination or to the page number of the PDF document
when there is no internal pagination.
2 At the time Appellant purchased the Property, there were two cottages on the Property which
were addressed as 25 and 39 Crescent Road. See Tab 10 – Hearing Transcript, Day 3 (July 30 Tr.)
at 9:18-20. After Appellant’s remodel of the Property, there was only one building on the Property
which was given the address of 25 Crescent Road. Id.

3
– Final Order (Decision) at 1-2.) Specifically, the Property is connected to the Water System via
a pipe (the Crescent Pipe) that begins at a shutoff valve in Aquidneck Avenue (the First Shutoff
Valve) and continues under Crescent Road to a second shutoff valve that is located at the boundary
line of the Property and Crescent Road (the Second Shutoff Valve). Id. at Ex. A (map of the
Crescent Pipe). Additionally, the Crescent Pipe includes several branches that provide water to
Appellant’s neighbors residing at 41, 43, and 45 Crescent Road.3 Id.
B
The Facts Leading to Appellant’s Claims Before the PUC
On November 26, 2018, the NWD received a call that water was surfacing in front of 45
Crescent Road in Middletown, Rhode Island (the First Leak) which was causing ice to form on
Crescent Road. (Tab 11 – Hearing Transcript, Day 2 (July 29 Tr.) at 74:7-75:4.) The NWD sent
out a team to investigate the First Leak and the team determined that there was a leak somewhere
near the shutoff valve in front of 45 Crescent Road. Id. at 75:5-13; see also Decision Ex. A.
However, no one was home at 45 Crescent Road at that time, which forced the NWD to repair the
First Leak that same day because of the road hazard (the First Repair). July 29 Tr. at 75:14-76:8.
On November 29, 2018, shortly after the First Repair, the NWD received a call from the
property owner of 41 Crescent Road, Gloria Meade (Meade), and she explained that she was
hearing noises when the water was running in her home and her cottage behind her home. Id. at
76:9-21. The NWD sent a team to investigate and the team determined that there was a leak in the
shared service pipe—i.e., the Crescent Pipe—somewhere under the paved island in front of
Aquidneck Pizza, which is located between Crescent Road and Aquidneck Avenue (the Second
3 None of the property owners of 41, 43, and 45 Crescent Road intervened in the hearings before
the PUC and were not complainants in the matter before the PUC. (Decision at n.1.) Additionally,
Appellant did not represent the other property owners’ interests before the PUC. Id.

4
Leak). Id. at 76:22-77:13; see also Decision Ex. A. Shortly thereafter, the NWD sent letters to
Appellant, Meade, and Stephen Neipris (Neipris),4 explaining that it was not the NWD’s
responsibility to repair the Second Leak; instead, it was a shared responsibility between Appellant,
Meade and Neipris because, according to the NWD, the Crescent Pipe is a shared and privately
owned service pipe. July 29 Tr. at 78:4-79:8, 80:11-81:1. The Second Leak was not repaired at
this time. Id. at 79:6-14.
In early February 2019, the NWD received a report of another leak in the vicinity of the
shutoff valve abutting Meade’s property (the Third Leak) and, as a result, the NWD conducted an
investigation which determined that there were two active leaks in the Crescent Pipe at that time.
Id. at 81:2-82:23; see also Decision Ex. A. The NWD once again sent letters to Appellant, Meade
and Neipris (February Letters) explaining that the NWD was not responsible for the maintenance
and repair of the Crescent Pipe; instead, it was the responsibility of Appellant, Meade and Neipris
to repair the two leaks in the Crescent Pipe. (Decision at 4.) Shortly thereafter, Appellant, Meade
and Neipris retained an attorney to contest the ownership and responsibility for the repairs for the
Crescent Pipe. Id. Neither the Second nor Third Leak were repaired at this time. Id.
On April 9, 2019, the NWD once again sent letters to Appellant, Meade and Neipris (April
Letters) explaining that the NWD was not responsible for repairing the Second or Third Leaks. Id.
Shortly thereafter, Appellant and Neipris retained R.J. Cawley (Cawley) to repair the Second and
Third Leaks. (July 29 Tr. at 137:19-139:6.) Appellant and the NWD were onsite on May 6, 2019
when Cawley repaired the Crescent Pipe. Id. at 83:3-9, 137:25-138:7, 142:15-25. However, prior
to starting said repairs, Cawley could not locate the First Shutoff Valve, which prevented him from
being able to determine the precise location of the Second Leak. Id. at 83:10-17. In response, the
4 Stephen Neipris is the property owner of 45 Crescent Road. (July 29 Tr. at 35:16-19.)

5
NWD agreed to assume the cost of the repairs if Cawley could not determine the location of the
Second Leak, and also instructed Cawley to install a new First Shutoff Valve in Aquidneck Avenue
so that the NWD could turn the water off for Cawley to be able to continue his repairs. Id. at 84:1-
85:10.
During the excavation, Cawley found the original First Shutoff Valve and he was able to
determine the precise location of the Second Leak by turning the water on and off via the newly
installed First Shutoff Valve. Id. at 85:11-86:7. It was determined that the leak was coming from
a hole in the Crescent Pipe that was in the direction of Appellant’s Property and away from the
location of the original First Shutoff Valve. Id. at 59:11-62:10; see also Decision Ex. A. Cawley
removed the original First Shutoff Valve, gave it to Appellant, and then completed the repairs for
the Second and Third Leaks. July 29 Tr. at 142:18-143:8.
C
Proceedings Before the PUC
On August 22, 2019, after the Second and Third Leaks had been repaired, Appellant
emailed the PUC and requested an informal review to determine the rightful owner of the Crescent
Pipe. (Decision at 5.) The PUC conducted the informal review on October 24, 2019 and issued its
decision on November 8, 2019, which determined that the NWD did not own the Crescent Pipe.
Id. On November 8, 2019, Appellant requested a formal evidentiary hearing to determine
ownership and responsibility for the Crescent Pipe. Id. The evidentiary hearing was held over the
course of four days on July 28, 29, 30 and September 3 of 2020. Id. at 6.

6
1
July 28, 2020 Hearing
On the first day, the hearing officer for the PUC (the Hearing Officer) heard testimony
from Jack Kane (Kane) and Robert Schultz (Schultz). See generally July 28 Tr. Kane, the Building
Official for the Town of Middletown, testified that he issued a building permit to Appellant in
October of 2017 that allowed Appellant to tear down the existing cottages on the Property and
build a new home (the 2017 Construction). Id. at 46:3-20. Additionally, Kane explained that prior
to obtaining said building permit, Appellant had to prove that the water service to the Property had
been disconnected, which Appellant did, through a letter that explained the NWD had turned the
water off for the Property. Id. at 47:3-50:2.
Thereafter, Schultz, the Deputy Director for the NWD, explained that when the NWD shut
off the water for Appellant in October 2017, the NWD likely shut it off at the Second Shutoff
Valve which, as Schultz explained, is owned by Appellant. Id. at 53:13-16, 55:10-56:25. It was
also explained that the NWD generally owns, and is responsible for the maintenance and repair of,
the portion of the water pipes in the Water System that run from the water main to the location of
the first shutoff valve thereafter. Id. at 61:17-19. Additionally, Schultz testified that Appellant
could turn off the water to the Property at the Second Shutoff Valve without the NWD’s permission
because he is the owner of said valve. Id. at 56:10-57:4, 90:17-93:12. Schultz also determined,
based on his interpretation of the Register Books and the diagrams of the Water System, that the
First Shutoff Valve is owned by the NWD and, as such, Appellant has no authority to control the
First Shutoff Valve. Id. at 67:5-68:23.
Additionally, Schultz explained that each property serviced by the Water System, including
multiple properties that share a single service pipe—which is not an uncommon occurrence—is

7
assigned a register number that is documented in the Register Books. Id. at 57:11-22, 58:17-19,
59:15-21. The Property was assigned register number 8554 in 1943 when John Sullivan (the
Property’s owner at that time) requested an extension of the Crescent Pipe to the Property; the
Register Book also noted that Mr. Sullivan had furnished all of the materials for the extension. Id.
at 74:12-76:11. Later, the Property was assigned register number 16184 which included notations
that (1) the Crescent Pipe was a private shared service line in the Water System, (2) the Property
had a previous register number of 8554, and (3) the extension materials for the 1943 extension of
the Crescent Pipe were furnished by Mr. Sullivan. Id. at 78:7-14, 80:1-18. Schultz explained that
based on that information, he was able to conclude that the Crescent Pipe is a privately owned
service pipe within the Water System. Id. at 58:20-25, 59:22-60:6.
At the conclusion of Schultz’s testimony, the hearing was continued to July 29, 2020. Id.
at 185:9-13.
2
July 29, 2020 Hearing
On the second day, the Hearing Officer heard testimony from Andrew Mendonsa
(Mendonsa), Joseph Roque (Roque), and Appellant. See generally July 29 Tr. Mendonsa, a water
distribution foreman for the NWD, testified that he inspected the First Shutoff Valve on April 24,
2018. Id. at 6:23-7:3, 9:16-11:24. During his inspection, Mendonsa was able to determine that the
Property was not directly connected to a water main. Id. at 21:3-20. Additionally, Mendonsa
explained that was he present when Cawley was repairing the Second and Third Leaks and he
observed Cawley’s installation of the replacement First Shutoff Valve. Id. at 15:3-24. However,
Mendonsa did not know or personally observe where the Second Leak was coming from during
that time. Id. at 24:4-11.

8
Next, Roque, the Supervisor of Distribution and Collection for the NWD, testified that he
was the one who sent out the team to make the First Repair. Id. at 34:2-8, 35:8-36:22, 50:10-12.
Additionally, Roque explained that he believed that the shutoff valve involved in the First Repair
was privately owned based on his review of the Register Books and Main Books; but, he authorized
the NWD’s repair of the First Leak anyways because of the road hazard that was forming. Id. at
37:18-38-22, 75:1-76:8. Roque also explained that he was the one who sent the February and
April Letters that informed Appellant, Meade and Neipris there were two active leaks in the
Crescent Pipe that they were responsible for repairing. Id. at 63:15-67:7.
Lastly, the Hearing Officer heard from Appellant who testified that there were originally
two small cottages on the Property when he purchased it, which were both serviced by a single
waterline. Id. at 116:12-119:4. After purchasing the Property, Appellant explained that he obtained
a building permit for the 2017 Construction; as part of that process, he had to provide proof to
Kane that the water to the Property had been turned off. Id. at 119:25-121:25. Appellant attested
that he believed the NWD had turned the water off at the Second Shutoff Valve for the 2017
Construction. Id. at 122:1-7.
Thereafter, Appellant explained that upon receipt of the February Letter, he did not make
any repairs to the Crescent Pipe at that time because he was going to dispute ownership of the
Crescent Pipe. Id. at 134:1-136:4. Appellant further explained that it was not until after he received
the April Letter, which threatened to terminate Appellant’s water service, that Appellant and
Neipris agreed to retain Cawley to repair the Second and Third leaks in the Crescent Pipe. Id. at
136:23-138:2. Appellant testified that the costs of the repairs were approximately $5,000 and that
he and Neipris split the cost evenly. Id. at 138:8-139:6.

9
After completing the direct examination of Appellant, the hearing was continued to July
30, 2020. Id. at 179:4-11.
3
July 30, 2020 Hearing
On the third day of hearing, the Hearing Officer heard the continued testimony of Appellant
and heard from Dean Prendergast (Prendergast). See generally Tab 10 – Hearing Transcript, Day
3 (July 30 Tr.). On cross-examination, Appellant further explained that he became aware that the
Property received water via the Crescent Pipe during the 2017 Construction and that the Crescent
Pipe also provided water to his neighbors, Meade and Neipris. Id. at 28:9-21. Thereafter, Appellant
attested that it was not until after he received April Letter, and the repairs to the First and Second
Leaks had been completed, that Appellant formally contested ownership of the Crescent Pipe. Id.
at 62:1-70:9.
Next, Prendergast, the project manager for the construction company that performed the
2017 Construction, explained that his company removed the water line that ran from the Second
Shutoff Valve, under the Property, and into Appellant’s home during the 2017 Construction. Id. at
92:24-94:6. Additionally, Prendergast testified that after the 2017 Construction was completed,
he installed a new water service line leading into Appellant’s home which he connected to the
Second Shutoff Valve. Id. at 96:19-97:9. Furthermore, Prendergast explained that neither himself,
nor anyone from his company, turned on the water for the Property once the 2017 Construction
was completed. Id. at 98:10-99:2.
At the end of the July 30th hearing, it was clear to the Hearing Officer that additional
evidence was needed, so the Hearing Officer adjourned the hearing to a future date to be
determined by agreement of the parties. Id. at 101:6-16.

10
4
September 3, 2020 Hearing
On the final day of hearing, the Hearing Officer heard from Marc Thayer (Thayer) and
Julia Forgue (Forgue). See generally Sep. 3 Tr. Thayer, a senior land surveyor, testified that he
had performed a land survey of the Property for Appellant. Id. at 32:22-34:2. During his survey
of the Property, Thayer was able to determine the location of the Second Shutoff Valve through
GPS technology. Id. at 42:7-43:17. It was Thayer’s opinion that the Second Shutoff Valve was
not on the Property; instead, the Second Shutoff Valve was in the public right-of-way in Crescent
Road directly in front of the Property. Id. at 48:8-15.
Next, Forgue, the Director of Utilities for the City, explained the history of the creation
and scope of the Water System including that the NWD maintains the records for the Water
System, which includes the Main Books and Register Books. Id. at 62:6-69:3. Furthermore,
Forgue clarified that the Register Books also document the shutoff valves that are owned by the
NWD. Id. at 103:22-104:2. It was also explained that, based on Forgue’s examination of the Main
Books, the water main in Aquidneck Avenue is owned by the NWD because the Main Books did
not include any records of the Crescent Pipe, and the Main Books do not include any records of
service pipes. Id. at 66:14-67:23, 74:12-75:19, 107:6-17. However, the Register Books include
records for the First Shutoff Valve, which is typical for NWD owned shutoff valves throughout
the Water System. Id. at 105:19-106:24. Forgue therefore concluded that the Crescent Pipe is not
owned by the NWD; instead, the Crescent Pipe is a privately owned service pipe. Id. at 73:19-
74:11, 77:20-80:24.
Additionally, Forgue explained that the Property was assigned register number 8554 and
included a reference to register number 7194. Id. at 116:17-117:9. Furthermore, the register

11
number for the Property included notations that the pipe for said extension was furnished by the
Property’s owner at the time of the extension and it was privately paid for because it was
documented in the Register Books, which was typical practice at the time of the extension. Id. at
117:15-120:15. At the conclusion of the September 3, 2020 hearing, the parties waived closing
arguments and the Hearing Officer permitted the parties to submit post-hearing briefs within sixty
days. Id. at 132:25-33:15.
D
The Decision
The Hearing Officer issued the Decision on March 5, 2021. See generally Decision. In the
Decision, the Hearing Officer indicated that the parties had agreed that the PUC’s Rules
Prescribing Standards for Water Utilities, codified at 815-RICR-40-00-0 (the Standards), govern
the outcome of the Appellant’s complaint before the PUC. (Decision at 7.) The Hearing Officer
explained that, under the Standards, a service connection is “the point of connection of the
customer’s piping with the curb stop owned by the water utility” and a curb stop is “the company’s
shutoff valve located at the service connection.” Id. Additionally, a service pipe is “the connection
from the water utility’s mains to the curb stop, and the customer’s connection from the curb stop
to the meter, and includes all of the pipe, fittings and valves necessary to make the connections.”
Id. In addition, the Hearing Officer determined that under the Standards and Rhode Island law,
the duty to repair is “allocated between customer and utility based on the location of the Service
Connection.” Id. at 7-8.
In response to Appellant’s claim for reimbursement, the Hearing Officer explained that
pursuant to G.L. 1956 § 39-4-10, Appellant must make a prima facie showing that “(i) a leak has
occurred, (ii) the leak has not been caused by the conduct of the complainant, (iii) the leak is

12
located on the utility’s side of the Service Connection, and (iv) evidence as to the funds expended
by the complainant to repair the leak.” Id. at 8. The Hearing Officer determined that the sole issue
before him was the location of the service connection, i.e., whether NWD’s ownership of the
Crescent Pipe begins at the First Shutoff Valve or at the Second Shutoff Valve. Id. at 8-9. The
Hearing Officer analyzed ownership of the Crescent Pipe under the four theories Appellant
advanced in his post-hearing memorandum: (1) past and existing regulatory frameworks, (2) the
doctrine of Dedication by Plat, (3) the 1948 installation of the Purgatory Road Main, and (4) the
NWD’s purported dominion and control over the Crescent Pipe and the Second Shutoff Valve. Id.
at 9.
1
Past and Existing Regulatory Frameworks Analysis
When analyzing the past and existing regulatory frameworks of the NWD’s regulations,
the Hearing Officer applied the plain meaning rule of statutory construction to determine the
location of the service connection. Id. at 9-10. Specifically, the Hearing Officer determined that
the NWD’s Regulations do not support a finding that the NWD is responsible for the maintenance
and repair of the Crescent Pipe and the Second Shutoff Valve because the Regulations do not
delineate any kind of ownership for the service pipes or shut off valves. Id. at 10-12. Furthermore,
the Hearing Officer applied our Supreme Court’s “incidents of ownership” standard and
determined that the NWD was not responsible for the maintenance and repair of the Crescent Pipe.
Id. at 12.
Consequently, the Hearing Officer determined that the service connection is located at the
point where the Crescent Pipe meets the First Shutoff Valve. Id. at 20. In support, the Hearing
Officer explained that “the Service connection is ‘the point of connection’ where ‘customer piping’

13
(i.e., the Crescent Pipe) joins ‘the curb stop owned by the utility’ or ‘company’s shutoff valve[.]’”
Id. Accordingly, the Hearing Officer determined that the NWD did not bear responsibility for
repairing the Second and Third Leaks because they were located on the customer’s side of the
Service Connection. Id. at 21-23.
2
Dedication by Plat Analysis
Next, the Hearing Officer rejected Appellant’s argument that the NWD must be responsible
for the Crescent Pipe because Crescent Road is a public road because “the character of the roadway
does not ipso facto determine the legal ownership of any particular facility that lies along or under
the roadway.” Id. at 23-25. Additionally, the Hearing Officer explained that “the existence of
customer owned water service lines under public roads is not an unusual occurrence in Rhode
Island or in other jurisdictions where mains are not located directly in front of customers’ homes.”
Id. at 25.
3
The Purgatory Road Main
Next, the Hearing Officer rejected Appellant’s argument that the NWD’s 1933 rule, which
required an easement before installing a water main under privately owned roads, supports that the
Crescent Pipe is owned by the NWD because there is no evidence of an easement for the Purgatory
Road main and therefore, Crescent Road must have been a public road at the time the Purgatory
Main was installed. Id. at 27. Furthermore, the Hearing Officer explained that (1) the character of
Crescent Road—whether public or private—“does not ipso facto determine the character of the
underlying facilities[,]” (2) the language of the NWD’s 1933 rule and absence of an easement shed
light on the character of Crescent Road in 1948, not in 1921 or 1943 when the extensions of the

14
Crescent Pipe were completed, and (3) there “could be a myriad of reasons why” the NWD could
not locate and produce the requested easement including an inadequate search or the easement
could have been lost or never recorded in the first place. Id. at 28. Consequently, the Hearing
Officer determined that the NWD’s 1933 rule and the absence of an easement for the Purgatory
Road Main, had no bearing on the location of the Service Connection and their relationship is
“tenuous at best.” Id. at 28-29.
4
NWD’s Dominion and Control of the Crescent Pipe
Lastly, the Hearing Officer explained that under Rhode Island law, public water utilities
are required to provide reliable service and safe, potable water to their customers and to do so,
public water utilities “possess broad authority to reasonable access those parts of their systems that
their customers own, such as service pipes, shutoffs or even the premises that are served.” Id. at
29-30. Additionally, the NWD’s interactions with Appellant during the 2017 Construction were
“aimed at providing reliable service and safe, potable water to the utility’s customers in accordance
with NWD’s statutory and regulatory authority and obligations” and “had nothing to do with
asserting dominion and control over, and thus, legal ownership of, the Crescent Pipe” or the Second
Shutoff Valve. Id. at 31-32. Furthermore, the Hearing Officer determined that the NWD’s repair
of the First Leak was “not intended as an exercise of dominion and control over” the Crescent
Pipe; instead, the NWD was acting within the scope of its responsibility to provide reliable and
safe, potable water to its customers. Id. at 32-33.
For those reasons, the Hearing Officer (1) denied Appellant’s claim for reimbursement of
$2,500 for the repairs to the Crescent Pipe, (2) denied Appellant’s request for an Order that the
NWD is responsible to maintain and repair the Crescent Pipe and the Second Shutoff Valve, and

15
(3) denied Appellant’s request for attorney’s fees under the Equal Access to Justice Act codified
at chapter 92 of title 42. Id. at 34.
E
Proceedings Before this Court
On April 2, 2021, Appellant filed a Complaint, pursuant to § 42-35-15, asking this Court
to (1) reverse the Decision and order that the NWD is responsible for the maintenance and repair
of the Crescent Pipe and the Second Shutoff Valve, (2) award Appellant the $2,500 he expended
in repairs to the Crescent Pipe, and (3) award Appellant attorney’s fees and costs under the Equal
Justice Act. See generally Complaint Seeking Judicial Review of Administrative Order of the
Rhode Island Division of Public Utilities and Carriers. On May 5, 2022, the Court entered a
Consent Order that established a briefing schedule. (Consent Order (May 5, 2022).) The Consent
Order was amended on July 1, 2022 and July 22, 2022 to give Appellant additional time to submit
his brief in support of his appeal. See generally Docket; see also Order (Aug. 18, 2022). Appellant
submitted his memorandum on August 2, 2022. (Docket.) The NWD and the PUC submitted
separate briefs on October 14, 2022, which Appellant responded to on November 23, 2022. Id.
The PUC and the NWD submitted their replies to Appellant’s response on December 16, 2022. Id.
Appellant filed a Motion to Assign the appeal for decision on March 10, 2023 and requested
permission to present oral argument on the appeal. (Petitioner-Appellant’s Motion to Assign Case
to Justice for Review and Decision.) The Court granted Appellant’s Motion to Assign on March
29, 2023. (Docket.) Oral argument was heard on May 12, 2023. Id.

16
II
Standard of Review
The Superior Court’s review of an administrative decision is governed by § 42-35-15 of
the Administrative Procedures Act. Rossi v. Employees’ Retirement System, 895 A.2d 106, 110
(R.I. 2006). Section 42-35-15(g) provides, in pertinent part:
“The court shall not substitute its judgment for that of the agency as
to the weight of the evidence on questions of fact. The court may
affirm the decision of the agency or remand the case for further
proceedings, or it may reverse or modify the decision if substantial
rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of discretion
or clearly unwarranted exercise of discretion.” Section 42-35-15(g).
The Court’s review of an administrative decision is limited to a determination of whether
legally competent evidence exists in the record to support the agency’s decision. See Johnston
Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 805 (R.I. 2000); Arnold v. Rhode
Island Department of Labor and Training Board of Review, 822 A.2d 164, 167 (R.I. 2003).
Legally competent evidence is “such relevant evidence that a reasonable mind might accept as
adequate to support a conclusion, and means an amount more than a scintilla but less than a
preponderance.” Rhode Island Temps, Inc. v. Department of Labor and Training, Board of
Review, 749 A.2d 1121, 1125 (R.I. 2000) (citations omitted). The Court’s review is limited to the
certified record in its determination as to whether legally competent evidence exists to support the
agency’s decision. Barrington School Committee v. Rhode Island State Labor Relations Board,
608 A.2d 1126, 1138 (R.I. 1992).

17
The Court cannot “weigh the evidence [or] pass upon the credibility of witnesses [or]
substitute its findings of fact for those made at the administrative level.” E. Grossman & Sons, Inc.
v. Rocha, 118 R.I. 276, 285, 373 A.2d 496, 501 (1977). “In essence, if ‘competent evidence exists
in the record, the Superior Court is required to uphold the agency’s conclusions.’” Auto Body
Association of Rhode Island v. State Department of Business Regulation, 996 A.2d 91, 95 (R.I.
2010) (quoting Rhode Island Public Telecommunications Authority v. Rhode Island State Labor
Relations Board, 650 A.2d 479, 485 (R.I. 1994)). The Court will “‘reverse factual conclusions of
administrative agencies only when they are totally devoid of competent evidentiary support in the
record.”’ Baker v. Department of Employment and Training Board of Review, 637 A.2d 360, 363
(R.I. 1994) (quoting Milardo v. Coastal Resources Management Council of Rhode Island, 434
A.2d 266, 272 (R.I. 1981)).
III
Analysis
Appellant argues that the Decision is clearly erroneous because the Hearing Officer erred
in failing to determine that the Crescent Pipe and the Second Shutoff Valve are owned by the NWD
and, as such, are the NWD’s responsibility to maintain and repair. (Appellant Leon Amarant’s
Reasons of Appeal and Memorandum of Law Supporting his Complaint Seeking Judicial Review
of Administrative Order of the Rhode Island Division of Public Utilities and Carriers (Appellant’s
Mem.) at 6.) First, Appellant contends that the Hearing Officer incorrectly applied the incidents
of ownership standard when determining ownership of the Crescent Pipe and the location of the
service connection. Id. In support, Appellant submits that he does not have any incidents of title
to the Crescent Pipe because it is located in a public road and he has no right to control or improve
the Crescent Pipe; instead, that authority resides solely with the NWD. Id. Moreover, Appellant

18
argues that the Second Shutoff Valve is the service connection based on the historical records and
the NWD’s exclusive control over the Second Shutoff Valve, including the NWD’s conduct and
exercise of control over the Second Shutoff Valve during and after the 2017 Construction. Id. at
11-17. In addition, Appellant submits that the Hearing Officer improperly ignored the public
nature of Crescent Road, which Appellant contends is an important factor when determining who
has title, possession, and control of the Crescent Pipe. Id. at 18-19.
Second, Appellant argues that the Hearing officer erred and misconceived the evidence
when he determined that the records and notations in the Register Books supported the
determination that the Crescent Pipe is privately owned. Id. at 6-7. In support, Appellant submits
that the Register Books do not contain any indication of ownership of the Crescent Pipe or service
connections, nor do the diagrams contained within the Register Books indicate the ownership of
the Crescent Pipe. Id. at 7. Specifically, Appellant argues that the references and notations in the
Register Books indicate that he is responsible for the maintenance and repair of the portion of the
Crescent Pipe that runs from the Second Shutoff Valve, under the Property, and into his home. Id.
at 8.
Lastly, Appellant contends that Forgue and Schultz’ testimonies that the Crescent Pipe is
privately owned because it is referred to in the Register Books and not the Main Books is flawed
because the Main Books “[do] not depict the portion of service pipe owned by NWD including
NWD curb stops or service connections.” Id. at 8. In support, Appellant submits that the NWD
owns the portion of the Crescent Pipe from the water main in Aquidneck Avenue to the Second
Shutoff Valve, but none of said infrastructure is depicted in the Main Books; instead, it is depicted
in the Register Books. Id.

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A
Ownership of the Crescent Pipe and the Second Shutoff Valve
The Hearing Officer’s determination that the Crescent Pipe is a privately owned service
pipe is a factual one and it will be upheld as long as it is supported by legally competent evidence.
See Auto Body Association of Rhode Island, 996 A.2d at 95. Specifically, the Hearing Officer’s
determination of “[w]hat constitutes an incident of ownership is considered a question of fact.”
Estate of Dodenhoff v. Clark, 572 A.2d 1326, 1329 (R.I. 1990) (citing United States v. Rhode
Island Hospital Trust Co., 355 F.2d 7, 9-10 (1st Cir. 1966)). In accordance with § 42-35-15, this
Court “‘shall not substitute its judgment for that of the agency as to the weight of the evidence on
questions of fact.’” Rocha v. State Public Utilities Commission, 694 A.2d 722, 725 (R.I. 1997)
(quoting § 42-35-15(g)). Accordingly, this Court may only reverse the Hearing Officer’s findings
if they are “totally devoid of competent evidentiary support in the record.” See Baker, 637 A.2d at
363.
Upon this Court’s review of the Decision, if “more than one inference may be drawn from
the record evidence, [this Court] is precluded from substituting its judgment for that of the [Hearing
Officer] and must affirm the [Hearing Officer’s] decision unless the [Hearing Officer’s] findings
in support of its decision are completely bereft of any competent evidentiary support.” Rocha, 694
A.2d at 726. After reviewing the Decision, it is clear to the Court that the Hearing Officer
thoroughly combed through the extensive amount of evidence that was presented to him and
carefully provided his analysis of the weight he afforded said evidence when making his
determination that the Crescent Pipe and the Second Shutoff Valve are privately owned. See
generally Decision. Therefore, it is this Court’s determination that the Decision is supported by
legally competent evidence in the record based on the analysis that follows.

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1
The Hearing Officer’s Analysis of Past and Existing Regulatory Framework
First, the Hearing Officer applied our Supreme Court’s statutory rules of construction and
determined that the NWD rules from 1933, as cited by Appellant, do not support a finding that the
NWD is responsible for the maintenance and repair of the Crescent Pipe because said rules do not
identify the owner of the service pipes or shutoff valves, nor do they make any indication as to the
location of the demarcation line between customer and utility facilities. (Decision at 9-11.)
Furthermore, the Hearing Officer’s application of the plain and ordinary meaning of the NWD
rules from 1991, as cited by Appellant, explained that the 1991 rules also did not specify the
location of the service connection, define the term service connection, nor identify legal ownership
of water distribution facilities. Id. at 11-12. The Court finds no error in the Hearing Officer’s
application of our rules of statutory construction.
Next, the Hearing Officer went on to analyze ownership of the Crescent Pipe by applying
our Supreme Court’s “incidents of ownership” standard, “[r]ather than cherry pick fragments from
past or existing [PUC] or NWD regulations out of context to arrive at a particular outcome.” Id. at
12. The Hearing Officer relied upon (1) the notations and diagrams in the Register Books for
register numbers 8554 and 7194, including the notations of who furnished the materials for the
extensions of the Crescent Pipe, (2) Shultz’ and Forgue’s testimonies about the NWD’s
recordkeeping system, including that the Register Books document the pipes within the Water
System that are customer owned, and (3) Appellant’s failure to present testimony or documentation
to rebut the information contained in the Register Books or the NWD’s recordkeeping practices,
to conclude that Appellant and the “property owners served by the Crescent Pipe own that pipe

21
and the shutoffs abutting their properties.” Id. at 14-20; see also id. Ex. B (Register No. 7194), id.
Ex. C (Register No. 8554).
Finally, the Hearing Officer relied upon his previous analysis when he reviewed the
Standards’ definitions for a curb stop and a service connection to aid in his determination of the
location of the service connection. Id. at 20. The Hearing Officer applied our Supreme Court’s
precedent that “rules and regulations of an administrative agency should be construed in
accordance with their plain and ordinary meaning” to determine that the service connection “is
located at the point where the Crescent Pipe connects to the First Shutoff [Valve].” Id.
Consequently, the Hearing Officer relied upon Roque and Appellant’s testimonies of their
observations of said leaks during Cawley’s repairs to conclude that the duty to repair the Second
and Third Leaks was that of Appellant and others serviced by the Crescent Pipe. Id. at 21-23.
2
The Hearing Officer’s Analysis of Dedication by Plat
Second, the Hearing Officer relied upon his prior application of the incidents of ownership
standard to dismiss Appellant’s dedication by plat argument as legally flawed because the
“character of the roadway does not ipso facto determine the legal ownership of any particular
facility that lies along or under a roadway.” Id. at 23-25. The Hearing Officer also explained that
it is “not an unusual occurrence in Rhode Island” for customer owned water lines to be located
under public roads and the 1943 extensions of the Crescent Pipe from the water main in Aquidneck
Avenue “was typical of the process employed by utilities to extend their systems to new customers
at these times.” Id. at 25-26. Accordingly, the Hearing Officer determined that Appellant’s
dedication by plat argument did not have merit. Id. at 27.

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3
The Hearing Officer’s Analysis of the Relevancy of the Purgatory Main
Third, the Hearing Officer determined that the NWD’s 1933 rules and the lack of evidence
of an easement for the Purgatory Road water main installation, “as a matter of law, do not bear on
the location of the Service Connection in this matter. Moreover, the nexus between these items
and the location of the Service Connection on the disputed facilities is tenuous at best.” Id. at 28-
29. In making this determination, the Hearing Officer relied upon (1) his previous discussion
regarding the lack of impact that the character of Crescent Road has on the ownership of the
Crescent Pipe and Second Shutoff Valve, (2) that even if the language of the NWD’s 1933 rule
had bearing on the characterization of Crescent Road, then it would shed light on the character of
Crescent Road in 1948, not during the 1921 or 1943 extensions of the Crescent Pipe which were
relevant to his ownership determination, and (3) the testimony of Schultz that NWD’s search for
said easement may have been inadequate or the record could have been lost or not created in the
first place. Id. For those reasons, the Hearing Officer determined that the NWD’s 1933 rules and
lack of evidence of an easement for the Purgatory Road main had no bearing on the ownership of
the Crescent Pipe. Id.
4
The Hearing Officer’s Analysis of the NWD’s Dominion and Control
Finally, the Hearing Officer determined that the NWD’s role in turning the water off and
on for the 2017 Construction and the NWD’s repair of the First Leak was not an exercise of
dominion and control over the Crescent Pipe by the NWD; instead, it was the NWD using its broad
authority to reasonably access parts of their water system that their customers own—including
service pipes and shutoff valves—to provide reliable service and safe, potable water to their

23
customers pursuant to G.L. 1956 §§ 39-2-1, 39-4-3, 39-4-10, 39-4-11, and 39-4-11.1 and the NWD
rules and regulations. Id. at 29-33. To make this determination, the Hearing Officer relied upon
(1) Appellant’s testimony as to the NWD’s conduct during the 2017 Construction, (2) Schultz’s
testimony that the NWD had turned the water off and on at the Second Shutoff Valve rather than
the First Shutoff Valve to avoid disrupting the water service to Appellant’s neighbors during the
2017 Construction, and (3) Roque’s testimony that the NWD considered the First Leak an
emergency which is why the NWD repaired the First Leak. Id. at 31-33.
IV
Conclusion
After review of the entire record, the Court finds that there is legally competent evidence
to support the Hearing Officer’s determination that the Crescent Pipe and Second Shutoff Valve
are privately owned by Appellant, and, as such, are not the responsibility of the NWD to maintain
and repair. Therefore, this Court AFFIRMS the Decision in its entirety. Counsel shall prepare
and submit the appropriate order for entry.

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RHODE ISLAND SUPERIOR COURT
Decision Addendum Sheet
TITLE OF CASE: Amarant v. city of Newport, Utilities Department,
Water Division, et al.
CASE NO: PC-2021-02341
COURT: Providence County Superior Court
DATE DECISION FILED: July 28, 2023
JUSTICE/MAGISTRATE: Cruise, J.
ATTORNEYS:
For Plaintiff: Joseph F. Hook, Esq.
For Defendant: Joseph A. Keough, Jr., Esq.
Gregory S. Schultz, Esq.