Petition for Writ of Certiorari — Miner v. Commerce Oil Refining Corp. (No. 451)

Supreme Court brief1960

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PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

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INDEX

Page

ONO oo oon tacee soc Mesa dice deck Wace cies

Jurisdiction ...... EPL ete opt ere ie te de Mean dee aa eee IE

RH NOI. eric Ges Sa ny chu Ganka eked s .

Rule of court, statutes, and ordinances involved ———.-

ean, REPRE RSP abi. AR Gu eR pe ee ED eS

A. The Parties and the Pleadings ............ a

B. Location of the Properties Invelved coe Ap phanls

C. The Corporation's, Proposed Refinery ........

D. Faets Bearing on the Validity of the Ordinances

ccambincudnenmte tet eee beans Ss eres

(1) Zoning and Building Ordinances and Amend-

I No onc css Gwin wcnanee sis

(2). Adoption of Licensing Ordinance ....... =.

. Facts Bearing on Whether the Operation of the

Corporation’s Ptoposed Refinery Will Con-

Se a i ee ee Ee ei Te

(1) General Effeets of the Refining Process .

(2) Hydrogen Sulfide and Mereaptans ........

(3) Likelilfood of NRE oe ks

(4) Su.vur Dioxide 2.2.2.2... ile Esme aaa ie

LS ee eee

(6) General Refinery Odor ..................

(7) Injury to Use and Enjoyment of Residential

WEE Scat bere oxh wwe anes 68 Pease ees

The Opinions and Judgments’ Below ..........

Reasons for Granting the Writ .................--.

NE <5 So os ak x ad ea rere etre to

]

i Index Continued

Page

ine showing Jamestown no and adjacent areas; the re-,

finery use district; the location of a rs’

homes; and the distances involved, .... following p. 41

Appendices [separately bound |

Appendix A—-Opinions ag SENT Ce Rey epee Al

(1) Opinion of the Distritt Court .........-.. Pred.

(2) Opinion of the, Court of. Appeals ere eeees aeee AQT

Appendix B--Judgments. below... 0. ..5..5 0.550226: Adi

(1) Original Judgment ..:... ole ee Peay eames ALT

(2) Order Denying Rehearing. .......-. : is Per i Adi

Appendix C- Rule of Court, Statutes, and Ordinances

IP PL seer are kr are eg ae .. ASS

1. Rule of Court ......-- Mohn ot tena any yams baat A4S8

2. State Statutes ..... Siete Ea Pele tee ES Ads

3. Municipal Ordinances ..........6-- rate nes a Ad?

Appendix—Demonstrable Factual FE rrors in the Court

of Appeals’ Opinion Moe eines One ee hs are ne eee

Appendix E—The Rhode Island Law of Nuisances ... A5Y

AUTHORITIES

| References to pages preceded by ‘ A‘

are to the Appendices |

Casrs:

tidrich v.-Howard, S a) hae. Taney 38, Ad59, AGL, Ab4

oe rv. United States, 322 US. 665 000.0... 30

Berman Parker, 348 US eee ob eperees Pa

Black & White Tart Co. vy. Brown & Yellow Tarr.

fa, Fe A ED iS occacecesencdkwavemsbenecte® oo

_—— — de rhe heson Va bee Barstow C Oo ° os) R. l. 19s,

At. ot Mince ME rear Payee Oy Sa Ss 0, AGO, AG2- Abd

ids. Bowd, 2 SONY, 42? 169 NUE. 6? Oe park 5a

Brevot vy. Unite . Maglen Ca FO OR eck Aine bees 686

Brive RoCo, v. Tompkins, 204 UL. G4 2.0 34

Faclid vo Ambler Realty Co. 202 US, Btn ty. eee

Index Continued iil

Page

Fish v. Dodge, 4 Den. 341 . ..... oo occas. »... AGU

Graver Mig. Cory, Linde Co. 339 US, 605 20. do

Kennedy vy. Frechette, 45 it 1. 309, 33 Ath 146.38, A509,

A611, AGL; AGL

A nauer vi United States, S25 U.S Sn EC re Oe

3 operV. Aleoa Sté amship €'o., 24a F | | | so)

Oceanic ‘Ste am Navigalwuw Ca, vy. Watkins, 8S Fed.

ssc GRRE ERO CLE EERO oe ree APY 1d

R. 7. Home Buitde wee Vv. iit Rose Co., 77 Rel.

Us: OO Oe BE. Sas ie ee KEN GS ois dene eel 33

Saunders v. Shaw » 2440 * MOO Gee eevee es a

ee Vv. United States, B20 US. PEO ce ren oe)

Sia Tne. ve. Ralston Purina Co. 67 R. I, +: 6, »4

Yd i ihe & MWR a a eee eel wie er oe ee x 3 BO: = 7 Bie ON, AG?

Ped Slates Oregon State Me — Soc rely, 345 é

U.S. i ) oe Se CS Sie Se A ae eh Eee CCUM Bow 6 mean Re wane e ck te 35

United States %. Yellow ¢ ‘ab Co, O88 TS 3 et cane 30

Universal Camera Corp. v, Labor’ Byard, 340 US,

See 33.3 Kae ha pe RAKE Ae eT MCSE Coe eee 349

STATUTES: :

Rhode Island General Laws, 1938:

Cha 238"... eee he De end Pants they Re ae Be ADI

di RE gS aaa atl tien One cel aaa et 13, 29, AAO

Ng 8 TAR, A hi agh e M atie Sr ten hea 11, 28, .A48

i a oak fe Ee Rar aaa en REAM ACN a 8 eae 11, 28, A49

Rhode Island General Laws, 1956

§ 23-261. eee Sag tt wie AOE

Oe nae aaa ttc) oe os eae ADO. A5T

Bn 2 a ES. REPRO seed h oes Pee Bs ee iccate 6ie acca tas eS 13, 29, AKO

5 an-ae-t te 40305 ee 11, 28, A48- A450

Rhode Tstand Publie Laws; :

Cs Pe NE De Rig Wee ae Dee 11

Oa ene I te Eo et ay en ne ADO)

Ch. 3223 of 1943 (1s ~t Spee, se Ase, SRE AE IE pote. VO}

Sherman Antitrust Net (15 UuS.C. $$ 1-7, 12.15) a

iv , Index Continned

MiscELLANEOUS : Page

Federal Rules of Civil Procedure, Rule 52(a) ..... 3, 34,

var ne eae | 37, A4S

First Cireuit Rule 31 ..... 0... ee eee eee Pers ee

~ Ordinances of the Town of, Jamestown:

Ch. XNXV ........-- DA SPOR a eee SoS ane Ad2

Ue Mae een eee Ce Tee Me OP aN ee AdZ .

oe Baer. NA Sr gare are Oe ts ee Ad2

Payne, Reminiscences of the Rhode Island Bar,

oe err ere rere ree Te ee ee itu ae

Supreme Court Rule 23(1) (i) ..--.-- +. ++: Leqees 2

if 3

F_o

IN THE °

Supreme Court of the Huited States

Octosner TERM, 1960

_ No.

Ww ILLIAM W. Mixer, Jous H. ° Porter, S. Baker

W ILLIA M™, ET ALS., Perc rs,

Vv.

Commerce Ow Rerixine Corporation

‘PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Wittam W. Mixer, Jouxn H. N. Potrer, S. Baker

Winniams, ef a/s.. your petitioners, pray that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the First Circuit, entered in’ the

above-entitled ease ‘on June: 16, 1960.

OPINIONS BELOW.

' The opinion of the district court denying respondent's

motion for-summary judgment on pean eounter-

claim (4 R. 419-426)! is reported at 22 FL R. D.:

the Appendix Record consists of six printed volumes, separately

numbered. “Vols. 1 and 2 are paged consecutively from 1f to 133st,

Vols. 3-6 are paged consecutively from 1 to 1913.

/ . .

The Opinion of the district court on the merits (3 R. 50.

S4; infra, Appendix A, pp. AL-A27)° is reported at 170

F. Supp. 396:

The opinion of the court re low (Appendix A, infra, pp.

A27-A46) has not yet been reported.

. JURISDICTION

The judgment of the court below (Appendix B, tefra,

A47) was entered on June 16, 1960. A timely petition

as rehearing was denied on July 6, 1960 ( Appen lix D.

_ infra, p. A47). *Yhe jurisdiction of this Court is invoked

ynder 2 U.S. C. § 1254(1).

QUESTIONS PRESENTED

Petitioners, residents of a small Rhode Island town,

counterclaimed for an injunction against the respondent

corporation ’s proposed erection of a largé oil refinery on

two. inde ‘pendent grounds, ‘first, that its operation would

constitute a nuisance, and second, that ‘the ordinances and

license purporting to authorize its construction were in-

valid. The district court granted petitioners relief on both .

grounds, holding in their favor as to the second beeause

permission to proce ed had been gr anted without a hearing.

On appeal, the court below held that Jhere was no nuisance,

refused to-pass on the validity of the ordinances and license

on the ground that such determination was unnecessary

to the disposition of the cause, and ordered dismissal of

the counterclaim. ,

The first question is whether, by dismissing the counter-

élaim without even considering the second ground which

the petitioners asserted (invalidity of ordinances and

license), and which was adequate to support the district

‘court's judgment, the court below so far departed from the

accepted and usual ‘course of judicial proceedings as, to call ,

for review by this Court.

2 All of the Appendices to the present petition are bound sepa-

rately, as permitted by Rule 23(1) (i).

. On the nuisance phase of the case, the district: jude

he avd many, days of testimony by expert witnesses on both

sides. Thereafter the district judge wrote a ke nethy

opinion in the course of-which he set forth his season for

believing sofne of the experts and for disbelieving others. -

The court below, with only the paper record before it,

reached a different result on its own independent evalua-

tion cf the expert testimony, while admitting that the

evidence was in sharp conflict. 7

The seeon | question presented is whether by so déing

the court below violated the standards preseribed by Rule

82 (a), F. R. Civ. P.

3. The Rhode Island law is that, ‘tto justify an injune-

tion, * * * the evidence must show clearly and convineingly

that substantial damage to the, complainant's property or

business will be practically ceftain te result from. the

operation by the respondent of the business against which

an psig is sought.”? Weidner, Ine. vo Ralston Purina

(o., 67 R. 1. 436, 451, 24 AL 2d 902,909, In this ease the

tnited States District Judge for the District of Rhode

Island, after stating the rule of that case, after quoting

that passage, after expressing his ewareness of the burden

of proof it imposed, and after considering all of the testi-

mony, was ‘‘satisfied that the operation of the refinery in

the manner and at the location proposed hy -the plaintiff

will cause a substantial diminution both in the values. ef

the defendants’ properties and in their enjoyment thereof

as measured by the degree of comfort which the average -

man Jiving in such a locality has the right to expect.’’ The

court below said that ‘*it seems to us that the Supreme

Court of Rhode Island would not sanetion enjoining the

erection of the plaintiff's refinery.’’

The third question presented is whether’ the court below

Was justified in substituting its own view of Rhojle, Island

law over that of the United States District Judge for the

District of Rhode Island in the light of his findings of fact

and of the Rhode Island decisions on the law-of nuisances.

i « te

RULE OF COURT. STATUTES, AND ORDINANCES

. INVOLVED

The rule of court, statutes, and cedbaeness involved are

set out in Appendix C, wfra, pp. AdS-Ao2.

STATEMENT

This case arises out ‘of a controversy between respond-

-ent, Commerce Oil Refining Corporation, hereinafter the

corporation’’, turning on whether the corporation has been

lawfully authorized to construct and-operate a large oil re-

finery ona wholly residential island in Narragansett Bay,

and on whether such construction and operation would un-

reasonably damage the homes and the health of the peti-

tioners, hereinafter ‘tthe residents’’. The questions ee

sented by this petition involve the regularity of the

proceedings by which the judgment of the nited States

District Court for the District of Rhode Island, granting

the residents injunctive jnd declaratory telief, was. re

versed by the court below. ,

A. The Parties and the Pleadings

The present action was commenced by the corporation,

presently insolvent (see p. TO, afra), which filed a eon.

plaint against the residenis seeking judgments aggregating

$34,000,000. (4 R. 353-360), |

The first count, which was based on diversity of citizen-

ship (4 Re 3538-358), alleged that the corporation in Septem-

ber 1956 reeeived a license from the Town of Jamestown

to erect and operate an oil refinery inan area of the town

zoned for such use, that the Tesidents unlawfully combined

and conspired to harass, delay, and prevent the corporation

from exercising its right to operate its refinery, and that

to offectuate their ‘unlawful combination and conspiracy’

the residents formed and used an organization designated

as Jamestown Protective Association. The corporation

asked that the residents be enjoined from harassing the

corporation by suit ‘or by any other means, and asked for

damages, against each of the 17 residents, in the sum of

&500,000 plus costs and exemplary or punitive - damages.

The second count (4 R. 358-560) alleged the same con-

spiraey as a violation of the Sherman Antitrust Act, as

amended (15 U.S. C. $$.1-7, 12.15), and asked for injune-

‘tive relief and damages, seeking from each of the 17

residents an award in the amount of $1,500,000: plus costs

and a reasonable attorney's fee. .

The residents—petitioners here—all live in Jamestown,

although -not all are registered ‘Voters: there. They are,

by occupation, ashipyard owner (4 Re 704), a letter:

carrier (4 R. 689), a machinist (4 R. 698), a warehouseiman

(4 R. 694), a registered nurse (4 R. 694), a school te: wher

(4 R698), two housewives (4 Re TOL: also Virginia W.

Wright), an age oneag broker (4 Re. 719), a a

physician (4 R. os), retired fireman (4 R. 683),

a real estate exeeutive (4 R597), a retired met ta

spinner (4 RS TOL), two retired business men (4 R. 679,

HNO), and two retired Navy eaptains (4 R. 709, 728).

The residents answered (3 R. 18-22, 44-49; 4 R. 360-371)

and counterclaimed (3 R. 22-40, 49-52). In their answers

they asserted that the license on which the corporation

relied was invalid, that the amendment to the Zoning

ordinance of the ‘Town of Jamestown creating a refinery

use distriet was invalid, and that the amendment to the

Jamestown building ordinance whereby the corporation

was excused from compliance with its terms was likewise -

invalid.

In their counterclaims, the residents alleged the inva-

lidity of the Teense, the inv: validity af the zoning ordinance,

and the invalidity of the amendment to the building

ordinance, They also alleged that the valne af the homes

owned by them would: be substantially reduced anid de-

stroyvedd, amd that their homes wonld be rendered unfit and

ane omforti able for enjoyment by the ereetion and ope ration

of the corporation's refinery, and that the refinery will

constitute a continuing nuisance, In their prayers the

residents sought a declaratory judgment that the license

and the amendments to the ordinances were void, and also

soucht injunctive relief against the corporation taking any

further action under the license and under the amendments.

In its reply to the counterelaims, the eorporation re-

‘asserted the validity of its license and of the ordinances

(3° R, 40-48, 52-56). The corporation's motion for sum-

mary judgment dismissing the counterclaims was denied

(22 F. R. 1D. 5; 4 R. 419-426).

When the case was reached for trial, the eérporation

announeed in open court that it did not intend to offer any

evidence in support of its claim of an illegal conspiracy by

us residents (4 R. 485), and on the latters’ motion the

complaint was dismissed, with prejudice (4 R. 408-411,

452-493, 454-445). Earlier, in seeking a dismissal withont

prejudice, one of the corporation's attorneys had deposed

that the corporation still intended to sue the residents if

its refinery were not built: (4 R. 399-400).

B. Location of the Properties Involved

~The town of Jamestown, Rhode Island, is coextensive

with the island of Conanieut in lower Narragansett Bay,

The island is a little over 9 miles long and is only slightly

more than a mile wide at its widest point. Ite area is 9.3

square miles and its permanent population is about

2.000." CLA. opinion, infra, p. A384.

The southerly portion-of the island, which is farthest

away from the proposed refinery, is known as Beavertail.

It is generally unoceupied and overgrown; on it are loeated |

some deserted Government installations, an abandoned

golf course, a small summer colony of little fishing cottages,

amdoone vear-round resident on a singh farm. (2 Ro S74t.

ST5t, 90S8-909t.) |

The middle part of the island consists of an area ealled

The Dumplings, where the most desirable summer homes

are found, and where there are also a few year-round

homes and an ebandoned fort: and of that part which is

the compact residential area of the town, where 75 of

the permanent population resides. This middle ‘portion

of the island has a publie water supply and sewer system.

(2 ROSTSt. Sst, Gost, 9Tot, 97H )8 .

Both courts found (3 R. 72: tefra, pp. ATG, AB4) that

Jamestown ‘is primarily a residential, resort and farming

area, At the present time, ne industries of any kind are

located thereon, and there are only relatively few business

enterprises, such as retail shops, stores, gasoline filling

stations and hotels. It enjoys considerable popularity as a

resort area during the summer.’ During the summer

season, the population of the island nearly doubles (2 Ro.

USTt). ;

The refinery use district, (see page 15. and map fol-

lowing op. 41. both afray extends completely across the

northerly portion of the island. The district eoyrt found

(3 R. 72-73: cafra, p. AWG) that the area of this district,

in Which the corporation proposed to ereet its refinery, is

S14.72 aenes, of which GOLTL were owned by its and the

remainder by other persons, ineluding 8 of the petitioners,

who have homes within the boundaries of the refinery use

district. ‘At the time of the trial of this ease there were

sixteen (16) dwelling houses ine said distriet, one having

heen destroyed by fire since September 27, 1956. [ Ex. 20,

5 R. 1425.) The remainder of the land therein is vacant.

While a small portion of it is swampy and overgrown with

scrub, most of said land is cleared and dry. Eighty-five

per cent of it was described in the testimony as good farm

land, suitable for farming or home sites, [5 R. 1052-1055,

‘The court below (ifta, po ASH) erroneously shifted the most

densely popniated middle portion of Jamestown inte the largels

Wnecenpied Beavertail area te the south. See Appendix D, infra,’

}P. ASS. *

1496; Ex. O, 3 R. 256.) South of said distriet and about

two miles therefrom are at least one hundred forty-three

homes in the Jamestown Shores development, so-called, and

to the north and within about one and one-half miles

therefrom are seventy-one homes, a summer hotel and a

camp comprising eleven or twelve buildimgs.*’ (3 R. 72-73

infra, pp. ALG ALT; see 5 R. 1490-1491, 1494.) ; ‘

“The defendant William W. Miner owns and resides on

residential property which abuts upon the easterly end of

said distriet. The remaining defendants are the owners

and oceupants of ‘residential properties situated at points

approximately two-thirds of a mile to four miles Away

from said district. The properties of the defendants

‘Terrence: MeGaughan and Burgess Eunsford are located

to the north of said district, and the properties of the

remaining defendants to the south and southeast of said

distriet. The homes owned by the defendants range in

value from $4,000 to $50,000, Most of them, if not all, are

substantially constructed, well maintained and attractively

landseaped." (3 RL Ta, tetra, pe Ada.) They run. the

gamut from small shore cottages,on small lots to large

residences of comfort and elegance on many acres of land;

seo pictures, 6 RL 1609-1869, See also 3 R218, 215, 235.

The geographical relationship between the properties in-

velved is shown on Bx. 22, reproduced” in facsimile

following p. 41, ovfra,

C. The Corporation's Proposed Refinery

Pollowine the testimony on behalf of the residents, anel

after introduetion of Ex. LIL. as the ‘‘complete: design’

“as of the present time’? (4 Re 658, 659-662), the eor-

poration presented evidence of substantial changes in the

design of its retinerw G3 RL 7. tfra;, pp. ALT-ALS: {1 R.

4980-02, OESt-ovEt, ONde-TOTts OR. 1268-12751). The

district: judge said (SR. 74: aera, p. “AIS), “For the

purpese of tay decision, TP shall assume that these changes

have been made. But despite these assumed modifications,

the evidence establishes that the proposed “refinery will

comprise, ameng other structures, at least fifteen stacks

ranging from twenty to two hundred feet in height which

will contain many thousands of feet of piping, countless

joints and connections, nearly one hundred untired pres

sure vessels of varying sizes amd construction, approxt

mately four hundred pumps, thousands of seals and com

pressors, tanks, he "ait exe penny bin and like equipment."

[1 1. 497t, S23-528t; 9 RL 1os82-1385, |

The Soil een to “refine forty-three thon:

sand (48,000) barrels of Kuwait ernde oil each day in its’

refinery, slightly less than the total daily capacity of all

the oil refineries in New England at the present time,”

ORL 74 nfras po AIS: PER. Ott: 6 RL TS0bs es. MMM,

p. 9 (not printed}]. ** The ernude oil te be refined will be

brought by tankers from the Middle East to Jamestown.

Plaintrl proposes to construct a danding dock off the east

-shore of the island from whieh.the oif will be pumped

through pipes to the erude storage area and then to the

process units, (2 R. T440-745t; Ex. LI, not printed.4 The

plans for the proposed refinery would seem to indicate that

the ernde oil will be kept at all times in-an enelosed svstem

from the time of its arrival through the completion of the

refining processes."’ (3. R. 76-77: mfra, p. AZO; fT R. 4 dst,

$41t; Ex. MMM, 6 R. 1687 at 1689, 1701, and TSO1 ef seq.)

“The refinery will be operated twenty-four hours per day,

seven days a week throughout the vear, with brief shut-

downs onee a vear for maintenance and repair purposes,

[2 R. 780t.]) The products to be produeed are high oetane

vasoline, liquified petroleum gas (LPG), and heating fuel

oils, By-products to he produced will he petrole Wm coke

and elemental sulfur.’ (3° R. 74: otra, po ATS: [1 R. wet,

l41t: Ex. MMM, 6 Ro at 1701, 1707, and Tsat-tsas?.)

‘Three types of processes Will be used to convert the

erude oil into gasoline, LPG and heating oils," viz.

distiilation, craeking, and heat treatment. (9 R. 74-75:

imrre, Pp. AIS.ATO: [1 x. Uta |.)

In the various stages of the above processes large

quantities of hydrogen sulfide, gaseous hydrocarbons

known as mereaptans, and sulfur dioxide -(SO_) will be

produced, (3 R. 75: tefra, po ALO: [LE Re det, 4560, 441t,

444t}.) The district judge, after giving ‘full credence”

to the corporation’s intention to use no fuel oils having

a sulfur content in excess of 2's per cent, ‘and assuming

that the sulfur reeavery unit will operate at all times to

‘its maximum efficiency,” found as a fact that ‘tit is clear

that the minimal quantity of SO. to be discharged each das

into the atmosphere will be thirty-seven tons." 05 R. 75

TO: infra, po AZO, f2 RR. WONT t 1251, M6St Pots Bs.

BBBB, 6 R. 1901-1913].) ;

“The evidence further shows that the plaintiff will

draw large quantities of salt water from Narragansett Bay

for cooling certain refinery units. The total-amount se

used will be at least LOO)S00,000 gallons each day. After cir

culating through the heat exchangers it will pass through

a cooling pend and will be discharged inte the bay. In

addition, process water used in the refining processes and

water used to wash platforms, walks and other areas in the

processing units, amounting to more than 2.000.000 callons

each week, after treatment to remove certain hydroearbon

compounds with which it has become contaminated ane

after passing through an oxidation Pond will also be dis-

charged into the bay together with storm: water aeenmn. -

lating in the proeessing units and in the erude storage

area.’ (3° R. 7; infra, p. AZ: [3 Re V71-1175, 1305-

1306].)

The faety as to the results that would accompany the

. ° . bad ;

operation of the refinery are set. forth below under the

nuisance phase of the case, jvfra, pp. U7228,

- The reeord ‘establishes that. at*the time of the trial,

the corporation was cinsolvent. having real “assets of

S7T7TH691S.354 as aeainst current liabilities Of S2.0S1,736.79

* (Def. Ex. MMM. 6 -R. at 1741, 6 Ro at 1747, note’ (6)). OF

it. ten directors (2 R. 762-7651), the only one who testr

fel at the trial, Mr. Geller, was the one who for seme

years had been “enaged in the development and promo-

tien of the Company'’’ (2 R. 764t).

At present, se petitioners are advised: the corporation

does net have-any contract for the supply of crude oil-or

any firm commitment for fin incing construetion.£ In aetual

fact, the corporation has never during its entire existence

yer ee refinery anywhere (RAL BY te Ex. Te,

y It. he wm 141).

D. Facts Bearing on the Validity of the Ordinances and License

(1) Zeuing and Building Ordinances and Amendments

thereto .

The Town of Jamestown in August 1995 adopted a

voning ordinance, -Tt was conceded that, sinee no notice of

a hearing on its proposed adoption was given a» required

by the state law then in feree CR. 1 Pub. Laws, 1931, eh.

762, later R. 1. Gen. Laws. 1938, ch. B42. $s band ’2, now

Ro! Gem baws, 16, £8 45-24-17 to + N24, intra. pp. AFs-

ADO) 2 this ordinance was invalid when the amendment

now in question, Which created the so-called refinery tse

distriet, was adopted in) September 1956 (4 R. 412417,

$N3-484).

‘At the hearing defere the distriet court on Angust os. 160,

on petitioners’ application fer a stay pending the tiling of the

present petition see Oeeanic Steam Navigation Co. Nv. Watkins,

Iss Fed wo ce AO 2. for the authority ia the trial court to

grant stich a stay after the mandate-of the court of appeals has

gone down. petitioners” connec! rade the assertion set ferth in,

the Text, in response tee the demurred of the corporation's attorneys

that the stay be conditioned on the viving of a bomd. They did

net contradict that assertion. amd the distriet court ranted the

stay Wothont requiring security ”

“The 1956 edition of the Rhode Island General Laws had not

heen putblished when this case was tried,

12 ao

On June 29, 1956, the corporat. m applied to the Town

Council of Jamestown (Ex. A-1, 3 R. 239-240) for

1, An amendment to Jamestown's zoning ordinance

creating a ‘‘refinery use district’’; °

2, An amendment to Jamestown’s building ordinance

excluding refinery structures from the Town’s building

code; and . |

3. An ordinance authorizing the Town to issue license-

far the refining, manufacture, processine and ‘storage of

petroleum products, :

The corporation submitted proposed forms of these

amendments and a form of noticé for a public hearing on

the zoning and building amendments (Ex. A-2, 4-3, A-4.

held in connection with the zoning and building amend.

ments (Ex. 8,3 R. 106-164).

The corporation submitted three forms of amendment-

to the zoning ordinance (Ex. A-2, 5 R. 1546-1548; Ex. and

E-1, 6 R. 1546-1560; Ex. F; 6 Ro 1561-1563): the last of

these (Ex. F) was finally adopted (Fx. S. 3° R. 267-269;

4+ R. 446).

The corporation resisted, on grounds of ‘spot zoning”

a proposal to rezone only property for which it bad an

option (Ex. BK, 6°Ro at TAd6-1558), and it characterized tas

‘unnecessary’ (PL Ex. 5. not printed in its entirety) a

proposed amendment, drafted by the Town Solicitor at the

direction of the Town Council, which would have permitted

industrial uses in addition to refining in the proposed

refinery use district (Fx. G, 6 R. 1563-1567; 4 Re 451-4955,

66-907, O70). The latter amendtient was not adopted

R. 455).

Incependent counsel retained by the Téwn of James

town were joined by the’ Town Solicitor ino refusing te

express any-opinion as to the validity or sufficieney of th:

< proposed wnendment to the, zoning ordinance (Ex. and

Ro 6 Ro TSS5-1997, at LaSO ame 1. ay .

One of the forms of amendment to the zoning ordinance

proposed by the corporation was ultimately adopted by the

Town Cogneil on Sept&aber 27, 1950 (lx. 8,3 Re 267-269;

4.404). This amendment created a refinery use district

whieh straddled the northern portion of Conanicut Island,

and contained more than 140 of the area ef the Town

(Ex. AAAS GR. 1671, 2 Re sest, Seat, S69t-S7TOt). Of the

S}4oacres in the refinery use distriet, tracts aggregating

over 2O0 aeres are not owned by the corporation (2 R. S63t,

SHOLSTUL). See atse po 7. saora. and map following p. 41,

intra, :

On September 27, 1956, the Town @ouneil also addpted

the corporation's proposed amendment te the buildine

ordinanee, which exeluded) relners structures) from the

provisions of the building ordinance (4 R. 4642 lex. Tyo Re,

OTUs Efex Ad A OR. 149). Tidependent. counsel

retained hy the ‘Town, as Weil as the Town Solicitor, hal

earlier advised the ‘Town Coaneil that the amendiment. te

the building ordinance was of “tdoubttul validity" (lex.

Qoand Rog Re DASS1S9D at Tost oand: bovd).

(2) Adoption of Licensing Ordinance

On the same day, September 27, 1956, the Town Council

‘also adopted ait ordinance which authorized the Town

Couneil to issue heenses for the refining, manufacture,

processing, and storage of petroleum products (lx, l-1,

SOR, eTu-RTO: 4 Ro 464). As adopted, this ordinance did

not diver materially from the drafts earlier submitted: oy

the corporation (Ex. A, 3 Re 241-244), nor did it include

any safeguards against air pollution as recommended by

the Pown Solicitor and the Town's special counsel (Ex. Ry

6H ORoat TOSS and Tadd. 8 Re 2ow-Zob), This lidensing ordi-

hanes, to the extent that it was, in stbstance and effect. a

Iuilding ordinance, was not preceded by a public hearing

as Was required in respeet of building ordinances by R. 1.

Gen. Laws, 2038, eh 355, so2. now RL L Gen. Laws, 1996,

SLUT intra, pp. Ao0- Nol.

Protesting parties were denied any opportunity to testify

in opposition to the lice nsing ordinance at the Town Council

meeting at which it was adopted (lx. 15, 3 R. at 200-202).

“Tmmediately after the adoption of the ordinancé, the cor-

poration’s attorneys. presented a licensé application (Iix..

DD, 3 R. 37-40), after’ which, without farther discussion

except to waive the requirement that the corporation file

its plans with its license application (Ex, 15,3 R. at 202),

the license (Hx, DD, 3 R. 314) was issued.

The record shows that the public Town Council meetine

at which the licensing ordinance was adopted and at which

the license was issued had been preceded by a meeting

of the’ Town Couneil in executive session, at which the

procedure to be follgwed-at the public meeting was deter-

tnined (4 R. 480). At this executive session, held at 7

PP. Moin the Town Clerk’s office (3 R. 199), the town's.

attorneys for the first time, at 7:15 P.M. presented a

form of licensing ordianee (4 R. 576), which had previ-

ously been approved by the corporation's attorneys (Bw.

R, 6 Re at Toss).

The corporation's application for a license (ox. W, 6 R.

1501-1504) and the proposed license: (lex, DDS Re 314)

were also considered at the executive session (4 R. 481).

At that sessien, the Town Council also had before it typed

resolutions moving adoption of the licensing ordinance,

waiving the pogire nt under that ordinance (g$2(1),

Dory, 2Ch), BOR. at 27E-272) that the license applicant first

file plans, amd granting the corporation’s license applica

tion (4 RL 48S, S76). |

The meeting then adjourned to the Memorial Town Hall

and Cotmuunity Cegter oa different building (4 Ro 477)

and reconvened in public session at 8:30 PL ML (3 Re 199).

The Town Clerk brought with her to the latter meeting the

‘Tawn's seal, as she hisvcl previeusly been directed to do

by the ‘Town Conneil (4 Re 482).

° eo

Here are the pertinent: passages from the minutes of

the public Town Council meeting (3 R. 201-202):

‘Armbrust | Member of Town ¢ ‘ouneil|: LT move we

pass this Ordinance as read.

“Seconded (Brooks | Member of ‘Town Council! )

“Voore [Counsel for Residents! : May we be heard

on the question of this Ordinance t there has been ne

hearing ow this: Ordinance. . As taxpayers and rest

dents of the town we ask the right t be heard. We

Sassupie vou Wish te satecuard the health of this

community.

“We are prepared to offer testimony which will

point out to you the vital defect “oe this draft of the

Ordinanee: and. Pe venture to say after you hear this

evidence vou may wish te withdraw and redraft this

ordinance.

“Gobeille [President of Town Council}: It is vhs

feding of the majority of the Council that we have

had the advice of a verviecompetent engineer and very

competent Counsel. We lave their advice to us and

weoare followimg it. We would not change from their

advice. We feel we should go ahead with our course

of action as outlined,

Moore: | would expect, of course, that vou would

follow the advice of vour tvounsel and your expert,

but certainly the residents of lamestown Whom we

represent should he heared. The residents Whore we

represent have testimony te offer vou based on this

very draft of the Ordinanee. :

“Gobeille: The Council feels they have listened

enough, They would like to get on with their action.

Murray [Counsel for Corporation? : May | sulynit

that at the time vou draft an air and wafer pollution

ordinance Mr. Moore be asked to submit his evidence,

‘(At this point, Mrs. Tollefson fa resident and voter

of Jamestown] tried to get the floor)

“Cobeille: The Council has not given pertission

for anyone to talk. We. would like to get on with

our action.

16,

“May we have the vote? So Voted.

‘“Gobeille: We have before us an Application for

a license to permit refining, manufacturing and proc-

essing of petroleum, petroleum products, ete.

(Quote Application) |

‘Armbrust: | move that the license as requested be

granted; with the exception that the Council ‘reserve

the right to request compliance therewith when said

plans and speéifications have been prepared.

‘Seconded and so Voted.

“Murray: bE have here a certified check endorsed to

the Town Treasurer, Town of Jamestown, on the

Chase National Bank for $5000.00) in) payment for

the leense, |

Meeting adjourned 9:05 PLM.

“Quinn [Counsel for Corporation|: We wish *te

thank vou very much tor your tolerance over many,

many trving weeks; we are deeply grateful fob the

license vou have issued this evening.”

The record indicates that underlying the Town Council's

haste witgggdeadline imposed by the corporation (Ex. 13,

BR. AST at 192-193; 4 R. S8U-581: 5 R. 1443); “Sit had to

he October Ist, no other date * ** if the deadline was

not met, then the oil refinery woyld not come to James-

town" (4 R. 581). In consequence, the licensing ordinance

was “thastily prepared’? (Ex. R, 6 R. at 1587).

‘

Prior to the adoption of the ordinanees and the issuance

of the license, the corporation undertook to underwrite

the fees of counsel” and of an engineer whose services

would ber quired in the drafting of the necessary ordi:

nances (lx. HG R. 167, 168), and thereatter the cor

poration promised to help out the ‘Town in the event of

litivation involving those measures (4 R. 580).

® Por special counsel's bill for professional services in connection

with-all three ordinances, see Ex. AA, 3 R. 279-283.

Throughout the litigation, the corporation relied on thy

ordinances and on the license, See Comptaint, Count 1,

$4 R358; i. Count H, 1, 4 Re sos; arscunent on pre

duetion of documents, 4 R. oe1-3ee. P

The record discloses, what is the tet. that bet ore the

corporation was able to obtain from: the “Town of hatties

towathe amendedaordinances apd license en which it relied

as authority ty construct its refinery, it had seusht similar

permission to. construct: that installation in othe ‘Teiwn of

Portsmouth. The latter towi. is loented) in the morthern

portion of the tsland of Aquidneek, whieh Ties to the east

of Covanieut Island, but also in Narragansett: Bay (ly. Ms;

8 OR, O48, BAL, 242; Es. KK, GR. 1975, Taed).

E. Facts Bearing on Whether the Operation of the Corporaticn’s ,

Proposed Refinery Will Constitute a Nuisance

(1) General Effects of the Refining Procéss

The court below said (infra, pp. A86-AST):

*<'There can be no doubt and ineleed it ts freely conceded

by Commerce that. substantial quantities of malodorous,

cand in sufficient concentration, toxie, ““ases ‘are: generated

in the process of refining jerude oil, partioularly Sseur

‘erndes® such as those frem the Shiekelom of Kuwait) which

Commerce intends to process in the refinery it proposes

to build in Jamestown: These gases are hydrogen sultide

(12S) and a group of gaseous hydrocarbons cabled: mer

captans. Furthermore the stacks carrying the exhaust

from the various heaters essential te the refinery: process

Te # @ To might say that, as alleged in our complaint, the

Commerce Oil Refining Corporation received its permit: to ‘build

a retinery on September UT 1050, wo that Pam net ashing any thine

prior to that date because T don't think we had any rights prior

to that date. * ® * TL beli¢ve they should be limited as to time

because the permit was granted on September 27, Ton Xs I

have stated to your Honor before, the plaintitt doesn't elahu any

Tights prior to that late.’

will discharge substantial quantities of sulfur dioxide

(SOz) into the atmosphere This gas is not peeuliar to

the operation of a refinery but, as a product of combustion,

is present in varying degrees in most smokestagks. It has °

the odor of burned sulfur matches, is deteetable by its

odor in concentrations of 2.5 parts per million parts of

air by volume and on constant exposure ts deletertous to

health in concentrations of 5 or Iuore parts per million of

air by volume, a ,

‘

(2) Hudrog nw Sulfide and Mercaplans

Continuing the quotation from the court of appeals’

opinion:

“We turn our attention dirst te hydrogen sulfide and

mereaptans.” In accordance with general cominereial prac:

tive about 12 of the sulfur in the crude oils Commerce

proposes to refine will be removed in the form of hydrogen

sulfide prior to shipment from the Middle East by a process

known as stabilizations More ef the sulfur will be eon-

verted in the course of the refining: process into hydrogen

sulfide and the residue will remain in the final produets

of the refinery. The hydrogen sulfide given off by the

erude oil during the refining process will, according to

Commeree’s plaa, be ‘converted into odorless, elemental

sulfur by a. process which is about 96° -eflicient. The. re-

2 ,

* Estimated at a minimum of 37 tons a day by the district judge

(3 R. 7H. 80; inira, pp. A2ZOl AZ) see record references eited

above, p. 10.

“According to the district court (3 R. at 75; rnfra, p. Ai9,),

“Hydrogen sulfide is a particularly malodorous gas described as

having an odor Hike rotten eggs and ds being deteetable in’ very

low concentrations, Tt is highly toxie and in sufficient econcentra-

tiqns injurious to health. Another inevitable produet of the refin-

ini processes Is the prodietion of a group of gaseous hydrocarbons

known as mercaptans. These are likewise particularly obnoxions

and are de tectable by stnell in-extremely low concentrations. '

The eourt ‘of appeals did net dispute the foregoing character-

IZUTION».

maining hydrogen sulfide will be incinerated and dis.

charged into the air as sulfur dioxide.”

*Mereaptans are produced at various stages of the

refinery process, In Commerce's operation some will Te

converted into hydrogen sullide, whieh will he treated as

deserihed above, others will be removed by a eaustic wasty

treatment and incinerated and some will be converted into

hydrocarbons and form part of the gasoline and heating

“oily produced.”’

One basic gifference between the parties at the trial,

and between the district court and the court below on

appeal, was Whether the corporation's proposed refinery

was likely because of accidents or otherwise to discharge

unhealthy gases and unpleasant odors on the residents’

properties, to their injury and discomfort,

The distriet court found (3 Ro at TO-SO; catra, po N25),

“Here it is undisputed that obnoxious gases such ws

hvdrogen sulfide and mereaptans will be produced ino the

refining processes, While the plaintiff contends that there

Will be no eseape of these etses and cites the deviees and

procedures it: will employ -te contain them, neither: the

record nor the testimony of their experts sustains this

contention. ‘The most that cam be said) vor sated deviees ”

and procedures is that they will be nearly completely

effective under the most ideal eonditions. But. having

in mind the highly corrosive qualities of Kawait «rude

oil and the volume of erude oil ‘to be processed each day, |

am satisfied that varying quantities of these obnoxious

gases Will find their way inte the atmosphere at all times

when the refinery is in operation. To cassume that: they

The distriet court founmd oS Ro at Té: infras po A2O> that,

“When combined with water or moisture int the atmosphere, SO.

becomes converted inte sulphureus acid whieh tn turn may be

vonverted ints subphuric acid. These acids are highly Corrosive

to iron and steel and gre destractive ef plant Jife.”

will not be carried by the prevailing winds beyond the

relatively small area upon which a refinery of ‘the size

contemplated is to be located would be tar from realistic.

On the contrary, the credible testimony in this case estab-

lishes that said xases will be carried by the prevailing

winds at all times’ to the properties of some of the-defend-

ants, and, because of their extremely disagreeable odors -

in very low concentrations and their cumulative effect,

they will seriously diminish ‘both the value of the defend-

ants’ lands as residential properties and the enjoyment

~thereef. The same observation may be made with respect

to the general refinery odor described in the testimmony as

heing an inevitable incident to refinery operatién **

The eourt of appeals noted (p. A387, mira), thac “*No

witness, of course, could say how frequently aceidents

permitting the escape of these gases in substantial quantity

would be likely to oceur.”’

The court of appeals went on to say (p. ASS, rfra),

‘Furthermore, assuming that accidents resulting in the

discharge of these gases will occur in or near‘the center

of Commeree’s processing area, it ix clear that if the wind

at the timre were blowing from any direetion between north-

east and south, the gases would not be carried onto the

property of any defendant but out over the waters of

the bay.?"!

The court of appeals had varlier roted (p. A3S5, Gefra)

that **The prevailing winds over ‘the island are from a

we — westerly direetion.”” Phe district court’s tindins

“(3 Re at 73; infra, p. AIT) had been more specifie—and

more accurate (see Appendix Dat p. Add, mfra): The

evidence establishes that) the prevailing winds on the

' The map of the isand and of the residents’ properties, infra

following p. 41, Shows that a wind blowing from the south would

certainly earry the gases te the homes of the petitioners Lunsferd

and MeGaughan.* See Appendix D. tfra, p. Add.

island are from the southweet and from the northwest. .

Wind velocities during at hast a third of the vear range

from ealm to fourteen miles per heur and foes of varying

duration enveloping the island secur with relative fre

queney.”” : |

(3) Likilihood of Mecideuts

There was substantial unanimity amon: the experts on

hoth sides as to the likelihood of acemdents in oil relmerys

operations.

; Dr. Brooks, a consulting chemist (1 R. 122t-125t) ealled

on behalf of the residents, testified that none of the pree

esses in the corporation's proposed refinery plans were

1006 effective, that “tere is always the possibility of.

accidents of one kind or another’? (1 R.235t). Accidents

invelving the escape of odors, gases and smoke are ‘tinevi-

table’? CLR. P36t) and ‘thevond any planning to prevent.

They happen’ (DR. 18Tt): The designers do all they can.

But it is in the operation ef the refinery and its equipment

that these accidents are inherent and inevitable beeause of

the ceneral nature and hazardous mature of. the Khiale

refinery business’? (1) RL D4t-bot). St bm faet, accidents

| one. kind or another are imevitable, amd beenuse of the

inherent hazards of the oil refining business, Prem: hein

nine to end’? (1 Ro 19tt). tit is imevitable from the

very pature of the business, in spite of the best safeguard.

that can be eonceived’*? (1 Re Tet).

Dr. Schutt, a consulting engineer (PR. Tot) Re Pst)

called on behalf of the: residents, deseribed refining as a

“hazardous manufacturing operation’’ (1 Ro. 2ISt-21%r).

Mr. Sutherland, the enginéer who supervised the desisn

of the corporation’s proposed refinery CL ROaTSt soit),

wimitted that ‘th don't think von can ever leave ont the

possibility. that leaks will eeeur’’ (PR. SOOT). and that

(UR. Agat) Haman failure or human accident can occur

red cloes oeeur, all the tine. * * * three life 1 bn lheve

aceidents, and so forth happen.”

Dr. Brooks testified as follows as to the effeet of acel-

dents (1 R. I4ot):

“(Q. May there be anything in the operation of a

refinery which would give an increasing odor to the

atmosphere after some months ot operation? A. That

woes to the question of human’ fallibility somewhat

and the inevitability of accidents of various kinds.

And if erude petroleum or any of these concentrated

malodorous materials are for any reason spilled, their.

odor can be and is carried by the wind. And the more

of that sert of thing that oecurs, the day-to-day atinos-

pherie pollution with respect to odor becomes more

or Jess permanent and cumulative. It is sort ofa

cumulative effect.

“The refinery might get along for some months with-

out any accidents of that kind or any spinage or leak-

age of malodorous material, but when it occurs it isn’t

always easy to clean it up or stop it. Se that as time

woes on that «ffeet ‘may be cumulative and become

creater.””

The district court found (3. R. 79: infra, p. A283) that

“While the plaintiff contends that there will he no escape

af these gases and cites the deviees and procedures it will

employ to contain them, neither the record nor the testi-

mony of their ¢Xperts sustains this contention, The most

that ean be said for said devices and procedures is that

they will he nearly completely effective under the most idea

conditions.”

Notwithstanding Dr. Brooks’ -testimony, quoted two

paragraphs above, the court of appeals concluded that

(p. ASO, infra) “the testimony is convincing that any gen-

eral refinery odor remaining -after an accident could be

quickly eliminated oy prompt and thorough cleaning of the

area affected.’

(4) Sulfur Dioxide

The distriet court-found (3 RL SO-S81: pp. AZ38-AL4, tata):

“Insofar as SOs is concerned, it is abundantly clear that

at least thirty-seven. tons thereat will be discharged) into

the atmosphere each day. Et is undisputed that this mal-

odorous was ix detectable by smell ina concentration of 2.9

parts per million and that in concentrations of more than

tive pirts per million ‘it has an irritating effect of varying

degrees, depending upon the health of an individual and

the length of his exposure to it. Im answer te a hypethet-

eal question which included no reeital ‘of the.volume of

SO. to he discharged frem ‘the stacks of the proposed re-

finery, an eXpert witness for the plaintiff testified that the

vround concentration of SQs at a point bevond the nearest

property line of the defendant Froberg would not exceed

G4 parts per million under the most unfaverable coud

tidus, and hence its presence ies Lnot be detectable on his

property or bevend it. [tT Re 6llt-ot4t.! Under cross

examination, however, this same witness admitted that he

could not deterinine such ground concentratfons: withou

Knowledge of the volume of SQ: that was being emitted Tn

the stacks, [2 RL 1S87t.! Tis opinion as te ground con-

centrations of SQ. is in mv judyement entitled to no wereht.

‘The credible testimony satisties me that, depending tpen

atinosoheric conditions, wind velocities, and the preyailing

winds, as shown by the evidence of past annual weather

conditions on the Island of Jamestown, there will be fre.

(uent concentrations of nals on the property of the delend

ant Froberg in excess of 2.5 parts per million, and that it

is reasonable to conclude ‘that thie properties of the other

defendants will be frequently visited with similar eon-

centrations carried to the premises by the prevailing winds,

end that these ecpicent ations will serve to effect a sub-

stantial diminution in the values of their properties and

In the enjoyment thereof”

The court of appeals undertook Cpp. AFO-A4T. atra) te

believe the witness whout the district judge had diggclieved

ae |

on the grounds quoted above, and while admitting (p. A40,

infra) that **The court's finding, however, has some foun-

dation in the testimony of three experts’’, made an inde-

pendent evaluation of the expert testimony to conelude

(p. A41, infra) “that accepting the results of the formula

there would be detectable .coneentrations of SOz on the

.Froberg property only for about one hour in every 720

hours, or for somewhat less than one hour in every period |

of four weeks”’

(5) Injury to Health

The district. court found that sulfur dioxide (8 R. 76:

infra, p. A2QO) “tin concentrations of more than five parts

per million has an irritating effect upon the nose, throat

and eves. The extent of its irritant effeet depends upon

‘the length of one’s exposure thereto, Tf the exposure be

for only a few seconds, its effect may be only to produce

tears. [f exposure be prolonged, engorgement of the blood

vessels of the eves and irritation of the nose and throat

result. In persons suffering from respiratory ailments or

heart disease its effect is to aggravate such ailments and

diseases and produce added discomfort.”

This finding rested on the testimony of Dr. Leonid Snegi-

reff, Associate Professor ef Caneer Control at the Harvard

University School of Public Health ( R. 920-055, 950-951,

956-960. 5 R. O6L-1O13, 1016-1082). (See also this witness’

testinrony to the increase in lung cancer to be anticipated

fronr petroleum refining in the area. 4 BR. 958-959.)

There was also testimony by Dr. Wilhelm C. Hueper of

the United States Public Health Service regarding the

carcinogenic agents present in hydrocarbons that are waste

products of oif refining (4 R. 870-912), but the distriet court

made no findings thereon.

Theecourt of appeals recognized (p. A386, infra) that the

casts which the Gorperation’s proposed refinery would ven

erate Were ‘tin sufficient concentration toxie™’.

j .

(6) General Refinery Odor

The experts on both sides were agreed that the plans

of the corporation's proposed refiners contained: te prrene

esses or units that were new and net psed in other re

finerties (POR. 132t (Dr. Brooks): 1/R. 219r-2vOtr (Dr.

Sehutt); 1 Ro 51zt (Mr. Sutherland)). Mr. Sutherland.

the designer of the corporation's proposed refinery, testi

fied that its ali-inclosed system was not new, that the

systems of most if not all oil retineries were similarly

inclosed (1 R. 522t).

_ *The reeord shows that at least two features of ‘the

corporation's refinery, beth of whieh are odor prodieiny,

. would not be closed. - The firs: was the oxidation tank,

which must be open, and whieh causes odors (1 Ro 2461

247t); the second was the eoke storage area (Def. Ey.

XXX, 6 Ro IST? [upper right-hand corner}), Petroleum

coke is the end product of the comearsion of residual

stocks (2 R. 1023t-1u24t, TO27t 10351). and petroleum: coke:

has a distinet smell (2 Ro 1027t, 106).

No less than four experts testified that odors are norma!

and inevitable in; and inseparable from. refiaiue opera

tions, ,

(a) Dr. Reiman, a consaltant in chemical ‘eng: eoering

(1 R. SSt-61t), testified that offensive smells are eertain

to be present within an arca of three er four miles from

the corporation's proposed refinery, and that such oders

are not Separahic from the retintny proeess (1 KR. S61 ast).

On eross examination, be said (1 Ro 118t). A refine TY

always. has a smell,” and when counsel for the corporation

countered with **You said that vesterday,’* Dr. Reiman

replied, “Tam saying it again today

(bh) Dr. Brooks, a consulting chemist (1 Ro 122et Tear)

testified that oders are normally created ino the refining

process (1 R. 132t): that the escape of odors even inion

mat)

modern and well-operated refinery, is) inevitable (1 R.

13st); and that as time goes on, the odor becomes ‘*more

or less permanent and cumulative’? (1 R. Mot).

(ce) Dr. Sehutt, a consulting engineer (1 R. T95t-19st),

stated that there is a general refinery odor created during

the refining process, caused by minor or more: serious

leaks, which can happen because of the multitude of con:

nections: that these odors would be present in magnified

form when a sour ernude is being processed: and faat these

odors are perceptyble dveeward efea refinery for several

miles (1 R. 219t-220t).

cd) Dr. Hneper, an officer of the United States Public

Health Serviee (4 Ro STU-S74). said (4 RooS77)) that

refineries ‘Shave an odor all right. You can pick that up

every nicely if von travel by train between Philadelphia

and Wilmington. When vou pass Mareus Hook, you smell

that all right.” ee

The district court found (3. R. 72-80; refra, p. A238) that,

‘having inomind the highly corrosive qualities of Kuwait

ernde oil and the volume of crude olf to be processed

each dav, Tam satistied that varying quantities of these

obnoxious gases will find their way inte: the atmosphere

at all Games when the refinery is in operation. To assume

that they will not be carried by the prevailing winds

bevond the relatively smatl area upon which a retinery of

the size contemplated is te be loeated wonld be far from

realistic.” The distiet court eoneladed that ‘the general .

refinery odor deseribed in the testimony iis heing an inevi

talde ineident to refining operations,’ would, like the other

enses, “serieusty) diminish both the valne of the defend

ants’ lands as residential properties and the: enjoyment

thereof.” en

The court of appeals, in a passage too jong for full

quotation (ifra, pp. ABS ASO), minimized: the possibility

both of accidents and of general refinery odors.

~t -

(7) Tngury to Use and Enjoyment of Restlential Property

Two real estate experts with long experienee (1 °R.

Vyst-l74t. SUSt-ozit), Messrs. Hurley and Milton, testified

that the presence of the corporation’s proposed refinery

would render the properties of the several residents, par-

ticularly those closest to the refinery, ‘tunfit for the com-

fortable enjovinent of life’? (1 Re 285t) and ‘practically

destroyed as a residence for people of normal sensibilities’

CPR. 839t), adding that some of the properties **would be

practically aanihilated as far as value is concerned’? (1 R-

JTSt, 27M, BVO). See, generally, TR. DT4t-LSNt LR. S26t-

Alt. 2

On cross-examination (1 R.354t) Mro-Milton testified :

“XQ. Dil vou hear Mr. Hurley say that the value,

of the Niner property: would be annihilated? AL Yes,

1 did.

“NQ. Would von agree with that? A. T would, ves,

That is directly across the road from the refinery

and certainly it would have ne value as a residential

property, With a refinery across the street.

"XQ. Would it have any residual value?) AL Thefe

may be a practical basi® shelter value left there. but

not to persons of normal sensibilities,

The Witness: A bare shelter-is a place to exist,

In my opinion and not enjoy life. LT think a home,

a residence, is a place to have the comforts, enjoy

life, health, and happiness with vour family."

One of the corporation’s real estate witnesses stated on

cross-examination (2 Ro Osa),

“Tf it is constant, and they are living with this odor

constantly, once a week or-onee a day or once every ,

two weeks, TP would think it would affect the vadue of

itves. TD think—let me correet that. T'think it world”

affect their enjoyment of the use of their property.

Dr. Reiman testified as follows on this issue (1 R. St):

“Q. Doctor, as a result of your experience and

. observations, do vou have an opinion whether or not

28 >

the operation of this refinery will have any effect on

the desirability of feal estate in the neig&tborhood

thereof * * * for residential purposes?

‘“*A. Well; I.could answer you very easily on the

desirability by saying that I wouldn’t want to buy

-property or own a house within the 3- or 4-mile range”

of the refinery.’’ iin iy

During the course of the trial, the district judge,. ac-

companied by counsel for both sides, -went to Jamestown

and viewed the premises of all 17 residents, petitioners

here (5 R. 1052-1055).

Following the close of the. trial, the distriet judge said

in his opinion (3 R. 83; pp. A26-A27, fra),

‘After a careful consideration of a! the testimony

and the reasonable inferences to be drawn therefrom,

and recognizing the right of the plaintit? to make a

reasonable use of its lands, IT am_ satisfied that the

operation of said refinery in the manner and at the

location proposed by the plaintiff will eause a. sub-

* -* stantial diminution both in the values ‘of the defend-

ants’ properties and in their enjoyment thereof as

measured by the degree of comfort which the average

man living in such a locality has the right to expect.

It foilows that such use will be unreason:ble and hence

a’ nvisanee to the defendants against which they are

entitled to injunctive relief.’’

) F.,. The Opinions and Judgments Below

. The district judge held’ (3 R. 61; tufra, pp. AS-A6) that

the amendment to ‘the zoning ordinance, which provided

‘for the creation of a refinery use distiect, was void because

the basie zon ng ordinanee had not been validly adopted,

and that, evens if the amendment had been interided as

an original ordinance, it, would) be veid because not

approved prior to adoption by a financial town meeting

of the Town of Jamestown as required by R. 1. Gen. Laws,

OS, ch. 342, $8 1 and 2, now RK. J. Gen. Laws, 16,

$$ 45-24-19 to 45-24-5, tn fra. pp. AFs-A50.

The district judge held (3 R. 61-64; infra, pp. AG-AD).

that the amendment to the building ordinanee, which

exempted oil refineries from all of the provisions of the

Town's building, code, was invalid because not conducive

to the conservation of health, safety or welfare, and hence

outside the scope of the ages power, citing Euclid vy,

Ambler Realty Co., 272 U.S. 365, 387."

The district judge held (3. R. 64-70; infra. pp. A9-A14)

that the licensing ordinances, whieh admittedly was adopted

without a hearing, was similarly invalid, beeause in sub-

stance it was a building ordinance which under R. T. Gen.

Laws, 1988, ech. 333, §$ 32. now R. 1. Gen. Laws, TOK, -

ST Cutra, pp. ASONSL) requires a publie he aring

preceded bY notice as a prerequisite to adoption, Since cer.

tain sections of: the void ordinance, 3(a) to 3¢h) ine lusive,

were intended to control the manner of construeting and

equipping the refinery, and = since the intention of the

Town Council would not be served by the remaining por:

tions of the license ordinance, which would leave the con

strnetion of the refinery without controls, the district judge

held that the entire ordinance would fail rietwithstandine

the presence of a separability clause. Accordingly, he held

that the license was also invalid.

In respeet of the alleged nuisance, the. distriet jndes

made detailed findings of fact (3°R. 72-83: infra, pp. ATF

AZ6), Most of which have already lee ‘nh quoted or sum

taartzed above, pp. S1O, 120, 21-26) and then conelucked

_ With the ultimate finding (3 R.S3; infra, p. Az6), (poted

‘at po 28. te the effect that fa it

“Tam satisfied that’ the operation of said refine ‘ry ine

the manner and at the location proposed hy the plain-

tiff will cause a substantial ditninution both in the

“The Town's special counsel, joined by the Town Soliewtor® had

earlier advised the Town Connell that) the preposed building

erdinanee was of doubted vabiting Ex. RL 6 RR. Dos6 at 9559.

values of the defendants’ properties and in_ their

enjoyment thereof as measured by the degree gf com-

fort which the average man living in such a locality

has the right to expect.”’

~ Accordingly, the Distriet Court entered. a judgment

(3 Ro 84-85) declaring void the three ordinanees and the

license and enjoining the corporation from: taking action.

under. the ordinances oF license, and also enjoiming it from —

operating its proposed refinery in the Town of Jamestown,

onthe ground that such operation would constitute a

nuisance,

The corporation appealed (3 R. 87).

On appeal, the court below held (pp. AS3-A34, titra)

that ‘*Sinee, even if valid, neither the plaintiff's lkeense

nor the amendment tor the local zoning and building ordi-

nances would provide the plaintiff with a defense to the

charge of constructing a private nuisance, it follows that

there was no need for the court to pass on the validity

of the ordinances, for decision of that matter was unneces

sary to its disposition of the case.’

The court below then (pp. ASS-A41, infra) undertook

a reexaminatior of the expert testimony and of the eredi-

bility of the expert Witnesses p. see \pp. 19-26, . above.

On the strength of its reading of Seidner, Inc, v. Ralston

Purina Co. 07 R. 1. 436, it said Cp. A46, tra),

“it seems to us from the Seidner case that the Supreme

Court ot Rhede Island would not sanction enjoining

the erection of the plaintiff's refinery in Jamestown.

Instead, on the relatively even balance of the sharply

conflicting expert testimony in the record before us,

we think the Supreme Court of Rhode Island would

wait to see whether the refinery constituted a nuisance

when put into operation.””

The court below then remanded the case for entry of

a judement dismissing the residents* counterclaims in their

entirety (fufra, pp. A46-A47).

Ina timely petition for rehearing,” the residents argued,

inter alia, that (Pet. Reh. 1, 5-11) ¢*The Opinion of this

Honorable Court) Failed to Consider and Determine

Whether Defendants Are Entitled to That Portion of the

Relief Granted by the District Court Independently of Is

Decision on Nuisanee and Based on Its Declaration That

Certain Ordinance Amendments and Plaintiff Appellant's

License Are Unvalid.”’

The petition for rehearing was-denied (p. Ad, tfra).

REASONS FOR GRANTING THE WRIT

This Court, litigants have frequently been admonished,

is a court of law and not of justice. Tf, therefore, the

essenee of the present petition were simply that, by rea-

son-of the judgement of the eourt of appeals, a presently

insolvent corporation will be permitted, ino a completely

amd traditionally residential area, to proceed with) the

construction and operation of an immense and particularly

noxious off refinery, an installation which on the evidences

would be “an ugly sore, a blight on the community which

robs it of eharm, «chich makes it a place from which

men turn’? (Berwan ve. Parker. 8348 TLS. 26, 82-88), these

seventeen individuals might well hesitate to invoke the

aid of this Court. to save their hemes from being trans-

formed into bare shelters.

Where, however, as in this case, the harm thateis’about

to he visited-on the petitioners flows from a disregard of

hitherto unquestioned rules of kaw, then, we submit, the

Me dudyment of the court below was entered on sdune 16, THe

tufras py NAT). the residents” petition: for rehearing Was filed on

Salty DVO rhe This was within the 14-day period allowed

by Rale 3) of the First Cireuit for the filing of a petition for

releariny,

. ~~

persens facing spoliation may properly seek review—and

redress—here, For the court below, in reaching the result

of which these residents complain, has struck down anid

distaissed without consideration substantial grounds amply

adequate to warrant and ihdeed require the relief whieh

they sought and were granted at the trial, and has more-

over, Without seeing or hearing the witnesses, reevaluated

a mies of highly technical expert testimony contrary to.

the conclusions of the experienved trial judge before whom

it wax adduced during a trial that lasted for over forty

court days. It is these wholly unwarranted departures

from, it ix this utter disregard. of, settled rules of judicial!

administration, that transform the private plight of these

pefitioners inte a ease of far-reaching public importance.

hor, ir civil no less than in eriminal litigation, it is only

in the continuous observance of basic proe eclurad safeguards

that there can be assurance against injustice,

First. The court below held that there was no occasion

for it te pass upon the validity of the ordinances or of the

corporatian’s license, since neither would prov ide the cor

poration with: a defense to the charge of constructing a

private -nitisanee Cianfra, pp. ASO A34). We would not

quarrel with that conclusion for a moment, even. though

those issnes were tendered by the pleadings and then liti-

wated at leneth (sapra, pp. 5-6, P11 7), if the court below had

affirmed the injunetion entered by the district court on the

chasis of the latter's detailed findiugs that the corporation's

proposed refinery woald constitute a nuisanee. But, once

the eourt below set aside those findings, and on its own re-

evaluation of the expert testimony held that no tinisance

would result, there still remained the allegations of thee

residents’ counterclaims that the ordinances and the license,

on whieh the @gr poration relied in its complaint and in its

reply, were severally invalid,

Those allegations, if established, furnished ample grounds

for the distfiet court's injunetion. The court below did

: 33

net undertake to review, much less overturn, either. the

district court's holding that ore counterelaims stated 4

eause of action (22 FL RL DLS: 4 I. 419-426), or its ean

mination (3. R.G1-70; infra, pp. NR - Al4) that the ordinances

wnd lieense were each invalid. The court below did not

‘and, in view of Rl. Home Builders y. Budlong Rose Co,

oe RL. 147, 74 A, 2d 237, could not) question the reside mtn’

standing to sue. Nor did the court below hold that-the cor-

poration was free to procbed with its project even in the

ehsence of a license, Instead, the court: below simply dis-

tuissed the counterclaims ino their entirety on the footing

that the determination of the v; alidity of the ordinances

ound dicense Was unnecessary to a disposition of the CAUSE,

We are at a loss to understand how or on what theory

anvappellate court may thus brush aside fis unnecessary

to its decision a ground for relief duly alleged, duiv lite

wated. fully establisheds and amply adequate to support the

relief granted at the trial In the light of the petition

for rehearing, this action, plainly enough, was net inad

Vertent: see Pet, Rell. S11, quoted hove, atop. 3

What the court below didk therefore, was to ‘deprive the

petitioners of their independent cause: of ae rio without

even considering its merits. That is more than aa abuse

Of discretion, it is an aetual abuse of power. Cr. Said rs

¥. Shaw, 244 TLS. 317. We submit that it: constitutes

such a far-reaching inavien: froin thesaecepted and usual

course of judicial proceedings, as to eall for—and to re.

quire—review by this Court. Indeed, on this phase of

the case it would not be inappropriate for this Court. to

reVerse without arguinent and to remand the Calese for con-

. sideration of the ordinanees-and-license aspects of peti-

Honers* counterelains,

Second, But the decision below involves another and

(ally serious departury sro settled norms of judicial ad-

unistration, the substitution by the éourt of appeals of its

(tkcnent upon and reev: ‘ui ition of amass of highly tech.

nical expert testimony that rested at eritical points on

the eredibility of witnesses whom it did net—and of course

could not-—hear and obsarve.

1. The court below was fullysaware (infra, p. ASD)

that ** More than forty days of trial produced a record eon-

sisting of thousands of.pages of testimony Xnd hundreds of

exhibits a great deal of both being hishly technical ino na-

ture’ No less than 24 expert withesses testified on beth

sides over a perioe of doa days. The trial judge tomk a view

ofall the properties involved (3.42. 152-1055). Followine

conclusion of the trial, he made eayeful and explicit tind’ nes

bearing on the issue of nuisance, basing his findings at

several points on the credibility of the expert witnesses

(3 Rout SOSD: infra, p. A244). On one of the erueial

isstes-—ground concentration of sulfur dioxide gas by rea-

son of the operation of the proposed refinerv—he ex.

plained with particularity why he dishelieved the corpora.

tion's principal expert (3 Re at SOSD: infra, p.. A24).

Yet on a record of this kind, the court below, whieh ad-

tnitted that the district judge's finding was supported by

the evidence of three experts (infra, p. AO) and which

adinitted that in black-and-white the evidence was in sharp

conflict Gofra.p. ABO) undertook an independent appraisal

of the experts” testimony and of their eredibility, and ‘eon-

eluded that the operation of the corporation's refinery,

Which if completed will nearly equal the eapacity of all

the refineries now operating in New England (3 R. 74:

intra, p. ATS), would not constitute a huisanee in respect

of these petitioners, more than half of whom have homes

within a two-mile radius of the certer of the proposed

Process area, Sew nT following ]). 41, ruta,

2. Such retrial of a‘long and complicated ease on the

dead pages of a printed reeord is contrary to, and sharps

offenis, what has long been the settled praectien, now codi

tied in Rule Szca), FOR. Civ, P. (uefra. p. AAS), a practice .

to Which numerous eases in this Court have yviven un

erudging effeet. United States Vv. Ve llow Cab Coa, 338 US.

OOS, OAL: and see particularly United States y. Oredon

State, Medical Society, 242 UL S. 326, 339, where-this Court

quoted With approval the lnnguage of the New York Court

OOF Appeals in Boyd v. Boud, 292 N.Y, 422, 429, 169 NL EB.

Hol, OSS: :

Face to face with living Witnesses the original trier

"of the faets holds a position of advantage from Which

appellate judges are exeluded. In doubtful eases the

exercise ofghis power of observation often proves the

Hest aeeurate Method of ascertaining the aa

How can we say the judge is wrong?) We never saw

of the trial Judge the law eontides the duty af ity)

praisal.” 7

As this Court said on the same point ina fairly recent

patent case (spare p “Mia. Cov. Linde fo. 350 US, Oty,

7 , ;

Particularly is this so ina field Where so much de

pends upon fainiliarity with specific problems and priy

ciples not usually contained in the ceneral storehouse

of Knowledge and experience,"

Ondy a few months before the ruling how in question,

the court below ive likewise refused tealisturh a Judginent

resting on the sharply contlietine Testinieony of expert

Witnesses, Lope: v. Mea Sty amship Co., 2 F. 2d 400),

MECN TD). Even in denaturalization eases, whieh per.

haps are sai generis in the lack of respeet there accorded

‘ven concurrent findings of faet? (NSehyeid, rman Vv. United

States, BW .. 11s, jos; Baumaartye rv. United States,

$22 U.S. 6S, OT3: Knaner y. United States, 3283 UL S. 654,

HOT-HOS), the court below has hell thuteit was net free

* Solution Of the questfon at issue rests entirely upon che ered

bility of the eNpert Withesses ated that, of couse, is a tiatter for

decision by the court. below betore whieh the witnesses appearer|

and testified,"

fo reexamine credibility. See Brenci v. United States.

17 BL 2d 90, 94 (CLA, 1)

3. Here the court below noted (infra, p. Ad) that the

district: judge ‘‘specifieally rejected the testimony of one

expert witness with impressive qualifications by train-

ing and experience in’ problems of air pollution caused

* by refineries.’ “This witness had, however, an even more

more lnpressive disqualification: the district Judge dis-

chelieved him. And the trier of facts disbelieved him beeause

that witness undertook to give an vpinion in the absence

of a factor without which accurate Opinion Was impossible,

See 3 RLSOST, quoted above at p. 23, where the record ref.

erences are also giver, 9 nt

Unless, therefore, the maxim falsus in uno, falsus in om.

nibus, ix now to be regarded as inapplicable to an expert

retained bya corporations the court below was not war-

ranted in rehabilitating this witness's ‘eredibility.

4. In numerous. significant. respects, the court of ap-

peals made demonstrable factual errors in the course of its

independent reappraisal of thee mass of evidence in the

present record. In order not further 4o lengthen what.

Is already a nevessarfy long document, we have relegated

the details of these instances to Appendix Dy intra’ pp.

AD3-ADY,

». Moreover, the totality of the evidence in the whole ree-

ord—briefly, very briefly, summarized at PP. VT-28) snpre

2598 08 we lp not interpret them [the Schneiderman and Baum.

sdartuer eases] as authorizing appellate courts to ake independent

tiring, of evitlentiary facets of an ebjective “nature when the

credibility. of a witness is arr Impomant faetor in reaching a

dl “ision, :

The Bre ned case is cited in the opinion now sought to be reviewed

mira, op. AAG. note 3) for the proposition ¢hat there is an appel

late duty to examine the evidence to sme Whether it meets the

req@isie standard of proof: Bit ne referenee is there made to the

page. just quoted, whieh reafiirmis the traditional rule that this

cdiits does hot inelide #uy power to redetermine credibility.

convincingly demonstrates that jt Is utterly iinpossible te

characterize as “clearly erroneous’? (Role O2(a)) the dis-

trict court's ‘ultimate finding (3 R.s3: infra, p, Al6) that

“the operation of.sa'd refiners. in the manner and at the

location proposed by the plaintit? will Cause a snistantial

diminution both in the values of the defendants’ properties

and in their enjeynent thereof as measured by the degree

of comfort which the average man living in such a locality

has the right to expect”? Very significantly, the court be-

low admitted that the evidence on the cold record was con-

Hhetine Gufra, DP. AGO), and that the testimony of at least

~ three experts supported one of the district judge's crucial

subsidiary findings: ( infra, peo AMO),

6. The sum of the foregoing is that the court below,

In reevaluating the expert testimony Without having the

expert witnesses before it, did Just precisely what an ap-

pellate court should not do; what a tribunal Without access

to the Witnesses can not do, particularly ina controversy

turning on scientific knowledge: and What the court below

has itself recognized that it can not and should not do,

Third. The court below committed another error requir-

Ing review, viz., the decision of an important state question

contrary—in every significant respect—to applieable state

law, ,

I. The court below read Scidner Tne. y. Ralston Purina

Co. OF R. 1. 436, 24 A. 2a YO2, as precluding the issuance

Of the injunetion granted by the district Judge against

the anticipated nuisance of the corporation's refinery, But

the district judge was fully aware of the Seidner case. He

stated its rile (3 Re 71-72 iutra, Pp. ATS-16), he quoted wat

the outset of his opinion (FR, (2s lutra, po NG) its critica!

Mtssage that formulates the quantum of proot required

Under Rhade Island law to enjoin an anticipated nuisance,

und he showed his awareness of the -burden accordingly

resting on the residents (3 Ro TS: infra, p. A22). He then

made an ultivate finding as to the harm which the cor

poration’s refinery would wreak upon the residents and

upan their Homes (3 R83: imfra, pp. A26-A27), a finding

which brought the present case squarely within the Serduer

ease and thus within the Rhode Island law as to antici

patory nuisances,

2. Actually, this case and Seidner are not even fairly

comparable, not only because, the elleged nuisanee_ in

Scidner did not remotely approach what is shown on the

present record, but also because the. area there invelved

Was net residential, as here, butthad long been zoned for

industrial uses. As we show in greater detail in Appendix

Bh ditracpp. ASU AGE under Rhode [sland Jaw it is the loca.

tion which is important in determining the existence of a

nuisance (Kennedy v. Frechette, 45 R. 1. 390, 405, 123) Ath

146, 148). and so nuisances in residential areas have never

prevailed (Aldrich v. Howard, 8 Re 1. 246; Blomen; Fred-

cricksouw Vv. N. Barstow Co,, 35 R. 1. 198, 85 Ath 924; Ken-

nedy vw. Frechette, supra). The court below utterly failed

fo give proper weight to this factor,

3. Moreover, the Rhode Island law is that a disturbance

need not be continuous to constitute a nuisance. ‘That the

time of operation is limited, affects the extent. of the in-

jury but dees not change the nature thereof.’ Kennedy

v. Frechetts, 45 RB. Lat 406; 123 Ath at 148; see infra,

pp. AGL-AG2. Consequently the emphasis of the court below

on the asserted lack of evidentiary support for the find-

ing of a ‘continuous discharge’’ of sulfur dioxide (infra,

}). ASS), even if right—whrich, see Appendix lD at }). AGA.

infra, We think if was not—retleets a further disregard of

Rhode Island law.

4. Since, as has been noted, the court below beld that

the ordinances and license even if valid—ie., municipal

action regularly and lawfully taken—would not’ justify -

or neutralize a nuisance (/afra, pp. ABO-AB4), it seems.

» -

plain on principle that the approval of the quatitied voters

which the court of appeals mentioned Caitra, po ASD) ean

have ne greater effeet. Indeed. the court of appeals” re

Hanes on that ciréumstance invelves still another brushing

aside of state law. For the Rhode Dstame law ts clear touat

economic benefit to the general community will not legal ze

cotditions that constitute a onnisanee to individual eso

telaardeaalits, Plomen, Predertohson VN. Barstow Cea: 2

a Pl Le ed Ce Oe vo, quoted aetna, ae Us

& Net only, therefore, did the United: States Dyststet

dudve for the Distriet of Rhode Island correethy apply

Rhodes T-tand law, but, very plainly, the court below

brushed that law aside. ‘The court of apperts. inherent!

‘oss Well equipped tern sermpser three st reed Cb lee eserl Camm het

Corps. Later Board, S40 UL 3. 474, 487) of the Supreme

Court of Rhode Tsland. has, bs andertaking te seeomd wness

a jitdes with nearly thirty sears of practice in the ecurts

ofthat State, aetnallt reverted te pre-Bpre-Tom pling Hay =.

WV: “tte the techmiqne of the court below professes te re spect

the Taw of Rhode Pstacd. its result is in substanes canned

effeet adisregard of that lal all too reminiseent of Blick

1 WhitesTavn, Coo, Brown deYe lon Tass, Co., 276 US

OTS. Aceordingiv, review should he had on this issue an

well,

ha arth, A generation age, when this Court tirst sustained

he constittttioasi’s of zoning ordinances designed to pre

tert reside ntial teighherhoods againat industrial eneroach-

trent. if remarked that * A nuisance may be merely aright

thine in the wren place like a pig in the parlor eagihees

of the barnvard.’ * Factid vo Ambler By alty Cn., of e

SHO SS,

livre the court below has opened the doors of the parler

in this instance one of the few beauty spots within easy

feeess of ao inetropelditab. aren still remaining “in New

Linelamd ‘te the entry of a porticularly filthy industria!

44)

pug. a massive refinery that will spew forth chemicals and

odors to endanger the health and to blight the homes ot

these residents.

Even as an original proposition, we find it well-nigh

incomprehensible that anvone could say that a tremendous

oil retinery would not render nearby houtes uninhabitabie

or nesriv sa?

Petitioners are seeking review, not because the court of

appeals fies ranged itself on che. side oof *tmodetn

progress a sabes ihig anced Tikened by a Rhode Esland

judge to a goose? Whieh d?stroys all before and befouls al)

fehind! net because the court of appeals has closed it-

rind - and nese sto what everyone else knows—and smells

net even solely heeause it has shut its eves ‘to pleading-

and to evidenee in this reeord, but essentially because the

of appeilate procedyge whieh, in every case save only this

one alone. it has regularly applied. :

Dr Reanan. a consaltant in choiieal engineering CL Roost

tlt who testitied as te the igevitability of odors from an oil

refinery oT Ro osetesst) and that “oA refinery always has a smell

ee 8 bam saying itjagain today" (TR. 11S8t). said very bhintly

TRS other PD wouldn’t want te buy property or own a hogs:

wirherr the oor bamile range of the refinery” he the bares 3

Tren s prepesed cetimers in this case. :

‘Mr liste Shearman. a member of the’ Supreme Court) of

Rhode Ustad between Psod and Ts6s. See Patne, Reminisce ners

om the Rhinty Island Ber Prov tele Thi'e*, Isso) 105-106.

CONCLUSION

The ruling below reflects a miscarriage of law no less

than of justice, This petition for a writ) of certiorari

should accordingly be granted.

Respectfully submitted.

FrepertcK Bersays Wrever,

Shite STD Stoneleigh Court

Wey Conneetiont Avenue, pace, an

Washington 6, DOC,

: ('ounsel for the Pe tetioners

SALVATORE L. ViIRGADAMY,

Frascis J. Boye, .

112 Bellevue Avenue,

Newport, Rhode Island,

dames A. Higains,

Witniam C. Dorgan,

1204 Industrial Bank Bldg ,

Providence 3, Rhode Island, :

CHARLES H. DruMMey,

So° Westminster Street,

Providenee 3, Rhode Island,

SEPTEMBER 1960.

l See hap overeat. |

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