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If you walked down a street in Westerly, R.I., half a century ago, the garlic and oregano of Italian cooking would tease your appetite, and the sounds of Enrico Caruso coming from one side of the street and Maria Callas from the other would transport you across the ocean. “Now that was stereo,” lifelong resident Anthony Palazzolo remembers with a chuckle. The smells and sounds have changed as Westerly, on the southern tip of the state, has changed with the years. Once known for the granite in its surrounding quarries, Westerly today is a beach town whose population of about 23,000 doubles in the summer as vacationers flock to its seven miles of sandy beaches and breathtaking ocean views. What hasn’t changed in 50 years is about 18 acres of undeveloped, reed-swept wetlands and uplands owned by Palazzolo and hugged by the Winnapaug Pond, a beautiful inter-tidal pond with an outlet to the Atlantic Ocean. Palazzolo, 80, wants to build a beach club on his land. The state has said no, repeatedly, for 40 years. The only way to build is to raise the marshy grade with fill, and that poses problems for the complex marine environment. As he stands on his near-pristine land and gazes across the street at the multi-million-dollar ocean-front homes, the former auto wrecker and father of six laughs at himself. “Some businessman, eh?” he says. Palazzolo owned the land indirectly through a corporation from 1959 until it passed directly to him in 1978. Rhode Island, meanwhile, had restricted the development of coastal lands. He had filed three unsuccessful applications to build in the ’60s but became tenacious about it in the ’80s when land prices skyrocketed. “My kids were starting college, and I had to get money for them,” he says. The rejection of his 1985 application to prepare the land for a recreational beach facility propelled him to the U.S. Supreme Court, a legal saga that has occupied more than a decade of his life and cost him $128,000, not including the interest he lost on that money or the school loans his kids had to take out. After four rejections he figured the state would never let him develop the land, so in 1988 he sued, claiming a taking of the land without compensation. Palazzolo v. Rhode Island, No. 99-2047. WALKING THE LAND Like Gail Atwater in Texas, Palazzolo, who has lost consistently at the state court level, has a sense that this showdown in the Supreme Court really didn’t have to happen if people had just been, well, reasonable. He once succeeded in getting a state coastal official to walk his property with him. He wanted to show what realistically could and couldn’t be done, and he wanted to tell an actual human being that he would “do no harm” and “only what the law allows.” “I thought if I could only get them here, we might find a way to make everyone happy,” he says. “We walked the land and I told him, ‘I’m not putting on an act here. I’m trying to be fair. Just tell me what I can use the land for.’ He stood here and said, ‘Nothing.’ “I said, ‘Wait a minute. This isn’t going to end because you say ‘nothing.’ Well, now it’s a battle.” He has typed a three-page summary of his battle called “40 Challenging Years.” It touches on Rhode Island’s “free thinking” history, the value of property rights to the Founders and his Italian heritage. He must, he says, leave his children character and property — property that can be used and improved, “providing that they do no harm.” After losing in the Rhode Island Supreme Court, Palazzolo says, he was going to give up because of the cost. But his case caught the eye of the Pacific Legal Foundation, a Sacramento, Calif.-based property rights advocate. It offered to take over the litigation if Palazzolo would pay its costs. Before the foundation takes a case, it goes through a multistep review process, according to foundation attorney James S. Burling, who argued the case in the high court on Feb. 26. “First, the attorneys in the relevant practice group will evaluate it,” he says. “Then it goes to a meeting of attorneys and key staff to see if it flies there, and then goes to the board of trustees for approval. None of these steps are rubber stamps. Palazzolo’s case had three significant issues that we’ve been trying to get before the U.S. Supreme Court for a while. And he really and truly feels he has been wronged by Rhode Island and its unwillingness to meet him even halfway.” The questions before the high court look like “the whole enchilada” to the property rights movement, says Nancie G. Marzulla of Defenders of Property Rights, a national group that filed an amicus brief supporting Palazzolo. Her organization and others have focused on one issue: whether a regulatory takings claim is barred if the regulation predates the acquisition of the property, as in Palazzolo’s situation. “If we got even dicta that went against us on this issue, it could be very harmful,” she says. The foundation’s other key issues involve when a takings claim is “ripe” and whether a property with any post-regulation value can be considered “taken.” THE STATE’S VIEW Rhode Island maintains that there has been no taking. Palazzolo, the state contends, still has substantial use and economic value in his property and could build at least one residence on the uplands worth about $200,000 — something Palazzolo disputes as physically impossible. Palazzolo’s takings claim is for $3.1 million. “There’s no value to the land,” he insists. “Rhode Island says they have a compelling reason to not let me build, that it’s here for the enjoyment of the people of Rhode Island. To me, they have condemned it with that.” His frustration is palpable as he pulls out 40-year-old drawings of how the land was to be divided and revised drawings to meet state objections. Unlike some who seem worn down by the lengthy road to the Supreme Court, Palazzolo seems energized and resolved. “I’m Sicilian,” he says. “I will fight for my rights and for as long as I do no harm.” Part III: Children’s Religious Club Fights for Right to Meet at Public School Return to Part I: The Hidden Costs of Litigation

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