In accordance with notice to members of the Rhode Island Coastal Resources Management Council a meeting was held on Tuesday, June 24, 2003 at 6:00 PM at the Department of Administration – Conference Rooms B & C – One Capitol Hill, Providence, RI.

MEMBERS

Mike Tikoian, Chair
Paul Lemont, Vice Chair
Dave Abedon
Jan Reitsma
Ray Coia
Jerry Sahagian
Sen. Dan DaPonte
Joe Shekarchi
Sen. Susan Sosnowski

STAFF PRESENT

Grover Fugate, CRMC Executive Director
Mike Deveau, CRMC Engineer
David Reis, CRMC Environmental Scientist
Brian Goldman, Legal Council

1. Chair Tikoian called the meeting to order at 6:10 PM.

Chair Tikoian made a brief statement of clarification on the council’s permitting process.

Mr. Reitsma requested that on page 3 the last line of the minutes add that” he felt you could not have it both way by having the city make stipulations and not incorporating their recommended stipulations”. Mr. Coia, seconded by Mr. Shekarchi moved approval of the minutes of June 10, 2003 as amended. The motion carried on a unanimous voice vote.

2. STAFF REPORTS

Mr. Fugate announced that the Greenwich Bay SAM Plan was well underway and the water quality certification report had been done. Mr. Fugate said they are now working on the habitat portion of the SAM Plan. Mr. Fugate stated that Greenwich Bay has been putting out a brochure on their proposed SAM Plan. Mr. Fugate will send copies of the brochure to council members.

Chair Tikoian requested that Dan Goulet give the council an update on the Providence Dredging Project at the next council meeting.

3. SUBCOMMITTEE REPORTS

There were no subcommittee reports.

Chair Tikoian read through the agenda to see which applicants/attorneys were present.

4. CONTINUANCES:

1987-11-039 HARBOR REALTY, LLC – for a fixed pier 12’ x 20’ (northerly from 30’ x 110’); Series of floats around large fixed pier and extending into northern “basin” area, namely, (1)-5’ x 30’; (1) 12’ x 20’; (1) 7’ x 20’; (1) 5’ x 347’+/-; elimination of “interior” public dinghy float in “corral” area; final location of pump-out sewer line; reconfiguration of interior float layout; slight revision to marina location (<10’); plat sheet 3 of 3 reflects Judgement Item #5 – the linear feet of float is essentially unchanged along the north builkhead, but a 105’ section of “boardwalk” (pier) is relocated over land rather than tidal waters. A 7’ x 20’ float is added at transition. It is noted that plan 2 of 3 depicts replacement boat locations per Judgement Item 2 and 3. Location of the project is Waites Wharf, Newport, RI.

The applicants were not present. Chair Tikoian stated that they had received a request for a continuance last week from the applicant’s attorney because the applicant’s witnesses were not available for tonight’s meeting. Chair Tikoian stated that the objector’s attorney, Andrew Tietz, requested that the meeting be continued until August as he was court excused for the July meeting. Chair Tikoian stated that the status quo question on the application would stand until the application is heard. Mr. Tietz submitted a copy of his court excuse to the council. The application was continued until the August 12th meeting.

5. APPLICATIONS THAT HAVE BEEN OUT TO NOTICE ARE BEFORE THE FULL COUNCIL FOR DECISION:

2003-03-042 ANTHONY SILVESTRI, JR. – Authorization for modification to an existing “Assented” residential boating facility to consist of: increasing (portions of) the width of the fixed pier from four (4’) to six (6.5’+/-) feet width, removing unauthorized sections, installing three (3) tie off pilings to extend to 70-feet beyond mean low water (MLW) and install two (2) electric boat lift systems “as built”. Located at Plat 2, Lot 52; 11 Aquidneck Court, Jamestown, RI.

Anthony Silvestri, Jr., the applicant was present. Vincent Oddo, the applicant’s attorney was also present on behalf of the applicant. Mr. Reis gave council members a brief summary of the application. Mr. Reis stated that the application was to construct an “as built” modification to an existing “Assented” residential boating facility to consist of: increasing (portions of) the width of the fixed pier from four (4’) to six (6.5’+/-) feet width, removing unauthorized sections, installing three (3) tie off pilings to extend to 70-feet beyond mean low water (MLW) and install two (2) electric boat lift systems “as built”. Mr. Reis said staff had reviewed the application and that several variances were required. Mr. Reis said staff had no objection to the application. Mr. Goldman stated that the application had had an administrative fine hearing several months ago and that a number of violations were rectified and this was the last part of the enforcement application. Mr. Oddo stated that the applicant built a dock with modifications and that the dock had been modified for safety reasons. Mr. Oddo said one or two areas of the dock were 1-2 feet wider than assented and the height of the winch was higher. Chair Tikoian asked how this was caught as an as built. Mr. Reis said a site inspection was done by the enforcement staff and noticed the violations. Mr. Reis said an administrative fine hearing was held on the violations and that this application was part of the administrative hearing process. Mr. Sahagian asked if the applicant was familiar with the three staff stipulations. Mr. Oddo and the applicant replied yes and that they agreed to them and they had been done. Mr. Sahagian, seconded by Mr. Coia moved approval of the application with all staff stipulations. The motion was carried on a unanimous voice vote.

2003-03-047 – BERNARD/POCASSET INVESTMENT GROUP, LLC – Construct and maintain a 73- unit condominium development, roadways, parking areas, utilities and associated grading. The site will be serviced by municipal water and RIDEM approved ISDS system. Located at Plat 6, Lot 55, 59; 807 Bristol Ferry Road, Portsmouth, RI.

Sean Coffey, the applicants’ attorney was present on behalf of the applicant. Scott Rabideau, the applicant’s biologist and Scott Moorehead, the applicant’s engineer were also present on behalf of the applicant. Mr. Reis gave council members a brief summary of the application. Mr. Reis stated that the application was to construct a 73-unit condominium development. Mr. Reis stated that staff had no objection to the application. Mr. Fugate said he received a letter from the Historical Preservation Commission objecting to the application and wanted the applicant to do a Phase II archeological study. Mr. Fugate stated that he had received a letter dated June 20th from Alan Strauss, director of CRS, which stated that he had done the archeological survey on the property, and there was no significant archeological artifacts found. Mr. Fugate said that since he received this letter he felt that it was safe to move forward on the application. Mr. Reitsma felt this was a procedural issue and that the phase II survey had not been heard before the HPC and he felt the council could not take action on the application based on the applicant’s letter but the council needed the decision of HPC on the application. Mr. Fugate said the areas of the phase II survey were in areas of non-disturbance and would not be disturbed by the project. Mr. Fugate felt it was okay to go forward on the application. Mr. Reitsma felt it was premature for the council to go forward. Mr. Shekarchi asked when the applicant would have HPC approval and asked if the council could take action on the application pending HPC approval. Mr. Goldman said yes. Mr. Coffey felt they could wrap of the HPC issue fairly expeditiously and he did not want to hold up the decision on the application by CRMC. Mr. Coffey said they did not find any significant archeological artifacts. Mr. Shekarchi asked how far away were they from receiving HPC approval 30 days or 6 months. Mr. Coffey said he was not sure. Mr. Shekarchi felt if it was going to be a long process the council should wait before making a decision. Mr. Reis said he spoke with Paul Robinson at HPC and he said he could have comments to the council within 2 weeks of receiving the applicant’s report. Mr. Reitsma said HPC could not make a determination until they see the phase II report and felt this issue needed to be resolved first. Chair Tikoian said he had no objection with processing the application and waiting for HPC’s comments and if there was a problem with HPC it would come back before the council. Mr. Fugate said the area of concern is not in an area to be developed and felt the council could move forward on the application. Mr. Coffey said this was a 73-unit condominium project. Mr. Coffey said they would adhere to the buffer requirements and there would be 280’ of buffer along the coastline. Mr. Coffey said there was no staff objection to the application and they would agree to all the staff stipulations. Mr. Coffey said no variances were requested. Chair Tikoian asked if the condominium documents were being submitted. Mr. Coffey said they were still being finalized and when they are finalized they will provide them to legal counsel for his review. Kevin Kupa, an objector, was opposed to the application because he felt the property was too small for a 73-unit condominium. Mr. Kupa felt there would be a problem with the rainwater runoff into the pond. Mr. Kupa wanted the council to deny the application. Mr. Reis said the runoff would go into a detention pond and will be metered out into the pond at the current flow rate and this will not increase the runoff into the pond. Mr. Kupa asked what about the Bay View Avenue runoff would there be a detention pond there for the runoff. Mr. Moorehead said most of the site flows to the restoration area and that other portions would be directed to a vortex stormwater drainage system and flow into the state drainage system. Mr. Reis said this was addressed in the staff engineer’s report. Mr. Kupa was satisfied with this and withdrew his objection to the application. Mr. Sahagian, seconded by Mr. Abedon moved approval of the application with all staff stipulations, holding the assent pending HPC comments and that the condominium documents and bylaws be submitted to legal counsel for his review. Mr. Coffey agreed. The motion carried on a unanimous voice vote.

7. APPLICATIONS REQUESTING ADMINISTRATIVE ASSENT BEFORE THE FULL COUNCIL:

2002-08-056 ALFRED TOSSELLI – Reduction of a previously authorized coastal
buffer zone from 50-feet to 15-feet; resulting in a reduction of 70%. Located at 1053 East Shore Road, Jamestown, RI.

Alfred Tosselli, the applicant was present. Scott Rabideau, the applicant’s biologist was present on behalf of the applicant. Kendra Beaver, Save the Bay, an objector was also present. Mr. Reis gave council members a brief summary on the application. Mr. Reis stated that the application was to reduce a 50’ buffer zone, Assent 89-1-43, approved by CRMC to a 15’ buffer. Mr. Reis stated that when the dock application was filed they noticed the buffer was not in compliance with the original assent. Mr. Reis stated that the applicant filed an application for a buffer variance. Mr. Reis said staff felt the applicant did not meet the variance criteria and recommended denial of the application. Mr. Reis explained that there was a preliminary determination filed in 1989 and staff determined that a 50’ to 75’ buffer was appropriate for the site and when the applicant filed his application he requested a 50’ buffer which had been granted by the council. Mr. Tosselli explained that this area was grassland and pastureland with no buffer when he purchased the property. Mr. Tosselli said he purchased the property in 1985 and divided the property. Mr. Tosselli said he did not change anything in the buffer zone he only mowed it. Mr. Tosselli did not feel he violated the assent. Chair Tikoian said the buffer zone that was to be established was a 50 ‘ buffer to be left in a natural vegetated state with no alterations. Chair Tikoian stated that mowing is not allowed. Mr. Tosselli said he did not change any of the vegetation it was always a grass area that would grow. Chair Tikoian asked why the applicant was asking for a reduction in the buffer zone. Mr. Tosselli said he wanted to be able to cut the grass. Mr. Rabideau explained that the applicant came to him a year ago with an enforcement application. Mr. Rabideau said the applicant wanted to mow the area. Mr. Rabideau showed the council an aerial photograph from 1995, which depicted the lots to the north and south of this property which are mowed to the coastal feature. Mr. Rabideau said he recommended to the applicant that he extend the stone wall across his property to the coastal feature and leave a 15’ vegetated buffer. Mr. Rabideau felt a 15’ buffer could be revegetated. Mr. Abedon said they would mow to 35’ then have the wall and have a 15’ buffer. Mr. Rabideau replied yes. Mr. Shekarchi asked what the reason was for this was it because the applicant wanted to have a lawn. Mr. Shekarchi felt the applicant did not meet the variance criteria. Mr. Shekarchi asked if there were any erosion issues at this site. Mr. Tosselli replied no. Mr. Rabideau said he did not observe any erosion problems on the site. Mr. Sahagian asked if there was any administrative relief eligible to the applicant for the buffer relief. Mr. Fugate said no. Mr. Fugate explained the relief was granted at the time the original application was filed. Mr. Fugate said if the applicant filed a new application now it would require a larger buffer than what is their now. Chair Tikoian asked if a new application was filed, what the buffer requirements would be. Mr. Reis said this is a 2 acre site and would require a 125’ buffer. Mr. Sahagian stated that if a 50% variance for that buffer was granted the applicant would have to have a 62.5’ buffer which is more than there is now. Mr. Reitsma said he was concerned with the non-compliance of the assent and an applicant coming back to the council to get approval after this is done. Mr. Reitsma felt that if a permit was violated that it could not come back to the council with a new application. Mr. Reitsma felt there should be a consent agreement for the violation. Chair Tikoian said the council could sent the application for an administrative hearing. Mr. Coia asked if the violation had ceased and when. Mr. Tosselli stated that he has ceased mowing the lawn and that he appeared before the CRMC administrative fine hearing board a year ago. Mr. Reis said there were quite a few cases in the 1980’s, which required buffer zones, and some have been reduced. Mr. Reis felt the buffer did not effect the applicant because his house is setback far away from the buffer area. Vice Chair Lemont asked staff what was on the other properties that abut this property and have no buffers. Mr. Reis said he did not look at these properties and they would only be looked at if an owner filed a new application, which would require the new buffer regulations. Mr. Reis said these properties are considered grandfathered in until there is a change in the footprint of the house. Vice Chair Lemont said if the other two properties do not have a buffer what is the equity. Mr. Reis said if the council felt there was a problem with the abutters that staff would look at the site. Mr. Abedon agreed with Vice Chair Lemont and felt that the policy and planning subcommittee should look at this issue regarding abutting properties that do not have a buffer and then requiring another person to have a buffer. Mr. Fugate explained that if an application was not filed for that property it would not require CRMC review but if an application was file it would require CRMC review and the buffer regulations would fall into place. Chair Tikoian was concerned with the other two properties being mowed to the water. Mr. Fugate said he would have staff look at this. Mr. Reitsma felt the policy and planning subcommittee should address this issue. Kendra Beaver, Save the Bay, an objector stated that they were opposed to the application. Ms. Kendra requested that the council deny the application as it was not in compliance with the original assent. Mr. Coia said the applicant is not out of compliance with the assent now because he has not mowed the area. Mr. Coia, seconded by Mr. Sahagian moved approval of the application for a variance to reduce the buffer from 50’ to 15’. Mr. Reitsma said the applicant is in compliance with the assent and the issue remains whether the council should go along with the buffer zone. Mr. Reitsma stated that he would vote against the application. Chair Tikoian felt the assent should remain with the original 50’ buffer and stated that he could not support the motion and felt the buffer should be enacted as it was in the original assent. Mr. Sahagian, Mr. Coia and Senator DaPonte voted in favor of the motion. Chair Tikoian, Vice Chair Lemont, Sen. Sosnowski, Mr. Reitsma, Mr. Abedon and Mr. Shekarchi voted no. The motion failed. The application was denied.

Vice Chair Lemont called for a recess at 7:10 p.m. Vice Chair Lemont called the meeting back to order at 7:16 p.m.

8. APPLICATIONS THAT HAVE BEEN OUT TO NOTICE ARE BEFORE THE FULL COUNCIL FOR DECISION:

2002-03-058 RICHARD AND JOAN JOHNSTON – Construct a three (3) bedroom, single family, dwelling with attached garage and driveway. The proposed dwelling is serviced by a DEM-ISDS approved septic system and Town water supply (see attached plans). The proposed dwelling is located within 25-feet of the most inland coastal feature. Located at Plat 89, Lot 192; Clinton Drive, North Kingstown, RI.

Chair Tikoian recused himself from the application. Vice Chair Lemont presided over the application. Richard Johnston, the applicant was present. Joseph DeAngelis, the applicant’s attorney; L. Robert Smith, the applicant’s engineer; and Scott Rabideau, the applicant’s biologist were also present on behalf of the applicant. Kendra Beaver, Save the Bay, an objector was also present. Mr. Reis gave council members a brief summary on the application. Mr. Reis stated that the application is to construct a three-bedroom family dwelling with attached garage and driveway. Mr. Reis said the house would be serviced by a DEM-ISDS approved septic system and Town water supply. Mr. Reis stated that the house is within 28’ of the coastal feature and that a variance is required. Mr. Reis explained that the buffer requirement is 75’ and that the applicants proposed a 15’ buffer which requires a 60’ buffer variance. Mr. Reis said the setback is 50 feet. Mr. Reis stated that staff did not feel the applicants met the variance criteria. Mr. Reis stated that staff had a meeting with the applicant, his attorney and biologist on June 10th at CRMC and staff prepared an addendum to their staff report based on the new information provided by the applicant. Mr. Reis said staff still recommended denial of the application. Mr. DeAngelis gave a brief history on the application. Mr. DeAngelis stated that the applicants purchased the property in 1987 and went before the North Kingstown Planning board in 1988 to divide the lots and received approval to create a lot and the size and configuration of the new lot has been unchanged since 1988. Mr. DeAngelis stated that in 1988 there were no CRMC setback requirements for a buffer and the buffer regulations did not fall into place until 1994. Mr. DeAngelis said he would address the subdivision issue and then the variance criteria. Mr. DeAngelis explained that this is a large lot but requires a buffer variance. Mr. DeAngelis said if the buffer variance was not granted the lot would not be buildable. Mr. DeAngelis submitted a packet of exhibits to the council and explained that exhibits 8 and 9 were new to the packet. Mr. Johnston stated that he purchased the property in 1987 and exhibit 1 depicted the property as it was when he purchased it. Mr. Johnston said he owns 8 acres of property , which was six small lots, or three parcels of land. Mr. Johnston said he subdivided the 3 parcels into 4 lots in 1987, which was depicted in exhibit #2. Mr. Johnston said they re-plated the lot in 1988 and received approval from the town and filed the plan with the town, (exhibit #3). Copies of minutes of the planning meeting, exhibit #4 were attached. Mr. Johnston explained that they took 10,000 s.f. from the lot which was before the council and conveyed it to the other lot to address setback standards for CRMC and zoning. Mr. Johnston stated that in 1995 he went to get a building permit for Lot #1 and was told it was not the same cut as in the 1987 plan. Mr. DeAngelis submitted a copy of the 1988 approved re-subdivision plan to the council as an exhibit. Mr. Johnston said the town required that they re-submit the subdivision plan because the old subdivision plan from 1988 had not been recorded, the town had the original plan but it was not recorded. Mr. Johnston stated that this was the exact same plan filed in 1987 and filed again in 1997 for the subdivision. Mr. Johnston stated that they would agree to merge lot 1 with lot 4 or either put a conservation easement deed restriction on lot #4. Mr. Johnston stated that they have developed 2 parcels of the 4 parcels and they only want to develop one more parcel. Mr. Reis asked when the other parcels were developed. Mr. Johnston replied that lot 96 was build on in 1990 and they had CRMC approval. Mr. Reis explained that in the property at that time required a 50’ to 75’ buffer. Mr. Reis said the applicant requested a 75’ buffer but CRMC wanted a 100’ buffer and the application was approved with a 75’ buffer. Mr. Johnston said he was not sure what the buffer requirements were for lot #1. Mr. Shekarchi asked if the lot before the council was a legal lot of record. Mr. DeAngelis replied yes. Mr. Shekarchi asked if this was a confirming lot with the town. Mr. DeAngelis replied yes. Mr. DeAngelis submitted certified copies exhibit #2 – 1988 subdivision plan, exhibit #4 – 9/6/88 planning board minutes, exhibit #8 – 11/20/90 -- planning board minutes, exhibit #9 - 1/2197 and exhibit #5 plan. George Caldow, the applicant’s community planning consultant, stated that he had reviewed the planning board and subdivision plans and that lot #2 is a conforming lot of record with the town. Mr. Caldow said the lots are legal lots of record. Mr. Caldow stated that there was no difference in the subdivision plan dated 1988 and 1990. Mr. Smith stated that they have DEM approval for the ISDS and no variance was requested from DEM. Mr. Smith said they would be using a denitrification system on the property, which would remove 60% of nitrogen. Mr. Smith stated that he had designed the single-family residence and described the property. Mr. Smith said one side of the lot was wet so they moved the house to the southerly end of the lot. Mr. Smith explained that a water easement runs northwesterly along the property. Mr. Smith stated that the located of the house was limited because of the road, setback requirements and water lines. Mr. Smith said they needed buffer relief or the buffer would be in the street. Mr. Smith explained that even if the replat had not been done by giving 10,000 s.f. to the other lot, the house would still be built in the same location. Mr. Smith said the septic system is in the front of the house and they could not put the septic system next to the marsh. Mr. Reitsma said it was a question of whether the applicant created his own hardship and felt the testimony so far did not address this. Mr. Reitsma said the applicant built on two lots without needing variances. Mr. Reitsma wanted the applicant to address the question on whether the applicant created his own hardship and if he did he did not meet the variance criteria. Mr. DeAngelis said staff raised the issue of the subdivision from 1988 and 1997 and that was why he was addressing this issue. Mr. DeAngelis stated that in the 1980’s CRMC did not have any buffer requirements so therefore since the lot was subdivided in 1988 the buffer regulations did not apply to the application so therefore the applicant did not create his own hardship. Mr. Fugate explained that in 1988 the setback was 50’ or 30% of the erosion rate and buffers were worked out. Mr. Fugate said it was a negotiation process. Mr. Fugate said in 1990 the buffer regulations came into place. Mr. Reitsma said question of whether there was a change in the plan or a modification to the plan would this have grandfathered the applicant. Mr. DeAngelis said there were no changes in the plan since 1988. Mr. Reis explained that two parcels have buffer requirements, one lot has a 75’ buffer and the other lot has a 50’ buffer which was done during this same period of time. Mr. Shekarchi asked what was not addressed back in 1986. Mr. Reis felt the applicant addressed and met the town zoning requirements when he subdivided the lot but he failed to meet or take into consideration the CRMC requirements. Mr. Abedon asked why the pending application was not under the current regulations and why it was under the 1988 regulations. Mr. Fugate explained that the applicant was trying to show that the application feel under the 1988 regulations when it was subdivided. Mr. Goldman explained that the pending application falls under the current regulations. Mr. Reitsma said the current regulations did not apply to the application in 1988 but there were regulations in place at that time for buffers. Mr. DeAngelis said yes, buffers were negotiated. Mr. Smith felt there would be no adverse environmental impact if the buffer variance was granted. Mr. Smith said the applicant could not meet the current buffer and setback requirements because of the marsh area. Mr. Smith felt this was the minimum variance necessary to meet the standards. Mr. Smith said they would agree to a stipulation that lot 4 would remain undeveloped, but felt they could be development for a single family dwelling on lot 4. Mr. Reitsma said Mr. Smith stated that there would be no environmental impact and asked if he was familiar with the staff’s environmental concerns. Mr. Smith replied yes. Mr. Smith said staff was concerned with the nitrates but they were using a denitrification system to address this concern. Mr. Smith felt there would be some environmental impact but it was not significant. Mr. Smith stated that this area was formally summer residences but now they are full-time residences and it was a heavily developed area. Mr. Smith felt this house would not cause an additional environmental impact. Mr. Rabideau stated that he had submitted his biologist report to staff and it was in the file. Mr. Rabideau said he has been involved with this parcel of land since 1986 and he helped delineate the coastal wetland. Mr. Rabideau referred to an aerial photograph of the site dated 1995. Mr. Rabideau said this was the north most lot on the aerial photograph and described the area. Mr. Rabideau stated that this was a unique piece of property, which has type 2 waters to the north and type 1 waters to the south. Mr. Rabideau said these parcels were huge compared to the other lots in the area which are only 5,000 s.f. with ISDS systems or cesspools. Mr. Rabideau said the house could not be in any other location on the lot because of the wetlands. Mr. Rabideau stated that everything pointed to the house being put in the southwest corner of the property. Mr. Rabideau felt this was the minimum variance necessary. Mr. Rabideau stated that if the 10,000 s.f. replated in 1988 and 1997 was not done it would still not have an effect on the location of the house. Mr. Rabideau said a study was done on the shoreline development and dominance of fragmites and felt this was not pertinent to coastal wetland but to a coastal area and salt-water areas. Mr. Rabideau did not feel this study matched up to this area. Mr. Rabideau felt the applicant could not meet the buffer requirements for this area and that this was the minimum variance necessary. Mr. Rabideau said there would be no significant adverse environmental impact. Mr. Rabideau stated that they would have a 15’ heavy vegetated buffer and scrub area and would also be putting in further vegetation. Mr. Rabideau said there would be some habitat loss from cutting the trees. Mr. Rabideau stated that they would leave lot 4 as a conservation easement. Mr. Rabideau said there would be a 28’ setback with a very small lawn and use recommended pesticides and fertilizers and felt this would protect the coastal environmental concerns. Mr. Rabideau said lot 4 was buildable and could have an ISDS on it. Mr. Reitsma had no problem with the pesticides and fertilizers but asked about the runoff. Mr. Rabideau said there would be a drainage catch basin used for the runoff. Mr. Reis felt the property had high wetland value. Mr. Reis said the marsh area is 4 acres in size and impacted by fragmites. Mr. Reis felt this was a difficult lot to build on with only a 28’ setback and 15’ buffer. Mr. Reis felt the development would not be protective of the wetland and felt this was a sensitive area. Mr. Reis said the other buffers in this area are 50’ to 75’ and the applicant proposes a 15’ buffer. Mr. Reis felt this would cause direct impact to the coastal resources in the area. Mr. DeAngelis submitted the 1995 aerial photograph as an exhibit to the council. Kendra Beaver, Save the Bay, stated that they supported staff’s recommendation to deny the application and felt that buffers were important. Ms. Beaver felt you need to restore buffers where possible and felt a 15’ buffer was inadequate for this area. Ms. Beaver requested that the council deny the application as recommended by staff. Mr. Shekarchi, seconded by Mr. Coia moved approval of the application with all staff stipulations and that lot #4 be made into a conservation easement. Mr. Reitsma felt this was a difficult decision and felt it would have a significant impact on coastal resources. Mr. Reitsma felt the applicant created his own hardship and that he would be voting in denial of the application. Mr. Abedon concurred with Mr. Reitsma and would be voting for denial of the application. Vice Chair Lemont called for a roll call vote:

On the motion for approval of the application.

Mr. Shekarchi Yes Mr. Sahagian Yes
Mr. Abedon No Mr. Coia Yes
Mr. Reitsma No Sen. DaPonte Yes
Sen. Sosnowski No Vice Chair Lemont No

4 Affirmative 4 Negative 0 Absentation

The motion failed

Mr. Shekarchi, seconded by Mr. Coia moved that application be modified and the house be downsized to 2-bedrooms and the applicant create an additional 6’ buffer. Mr. Abedon felt this would require further staff review and recommendations and could not vote on this. Mr. Reitsma said he was not comfortable with redesigning the application. Mr. Reitsma felt the application should go back to staff to work on a compromise. Vice Chair Lemont said he did not hear anything that there would be no significant impact to the area and felt a compromise could be worked out and he would like to see something smaller. Vice Chair Lemont called for a motion to reconsider the motion, there was no motion. Vice Chair Lemont stepped down as chair and Sen. DaPonte presided as acting chair on the application. Vice Chair Lemont, seconded by Mr. Sahagian moved to reconsider the motion to deny the application. Acting Chair DaPonte called for a roll call vote:

On the motion for reconsideration.

Mr. Shekarchi Yes Mr. Sahagian Yes
Mr. Abedon No Mr. Coia Yes
Mr. Reitsma No Vice Chair Lemont Yes
Sen. Sosnowski No Sen. DaPonte Yes

5 Affirmative 3 Negative 0 Absentation

The motion carried.

Vice Chair Lemont, seconded by Mr. Sahagian moved to remand the application back to staff to look at downsizing the house and to increase the buffer. Vice Chair Lemont called for a roll call vote:

On the motion to remand back to staff.

Mr. Shekarchi Yes Mr. Sahagian Yes
Mr. Abedon No Mr. Coia Yes
Mr. Reitsma Abstained Vice Chair Lemont Yes
Sen. Sosnowski No Sen. DaPonte Yes

5 Affirmative 2 Negative 1 Absentation

The motion carried.

9. APPLICATION WHICH HAVE BEEN REMANDED BY THE COURT TO THE CRMC BEFORE THE FULL COUNCIL:

2000-05-098 JOHN BRENDAN WYNNE – Construct and maintain a ten (10) duplex unit subdivision (20 dwelling units, total), one “communal” septic system (sand filter type), 1,200 linear feet of asphalt driveway, associated drainage structures, earthwork, landscaping, infrastructure (serviced by City Water service). Located at Plat 209, Lot 1, 6; Old Forge Road, Warwick, RI.

Michael St. Pierre, attorney for the applicant was present. Charles Wick, attorney for the objectors was also present. Mr. Goldman gave council members an outline of action taken on the application. Mr. Goldman stated that the application was remanded by the Superior Court to justify the council’s decision to modify and approve the application for 10-units with 20 bedrooms instead of 7-units with 14 bedrooms as recommended by staff. Mr. Goldman said there was no testimony as to why the council did this and there needed to be a finding of facts as to this action. Mr. Goldman stated that he sent a letter to the applicant and objector’s attorneys requesting that they submit a brief on the findings of fact. Mr. Abedon asked if the council needed to find their finding of facts. Mr. Goldman replied yes to stand up to judicial review of the application. Mr. Goldman stated that the council needed to have findings as to why they increased the number of units to 10 units with 20 bedrooms instead of the 7 units with 14 bedrooms recommended by staff. Chair Tikoian stated that only one finding of fact had been filed from the applicant’s attorney. Mr. Wick stated that he filed certified copies of his finding of facts with the Wakefield office, Mr. Goldman and Mr. Rotelli on June 11th. Mr. Goldman said he did not receive a copy at his office and he checked with the Wakefield office on Friday and Monday and they had not received a copy. Mr. Rotelli said he received his copy.

Chair Tikoian called for a recess at 9:00 p.m. to copy Mr. Wick’s brief and pass out to council members for their review. Chair Tikoian called the meeting back to order at 9:10 p.m.

Mr. Goldman accepted Mr. Wicks’ 3-page finding of facts dated June 11th as an exhibit. Mr. St. Pierre felt there were two issues, one procedural and the other substantive. Mr. St. Pierre gave a chronological status on the application to council members. Mr. St. Pierre felt that his finding of fact #42 addressed the concern of the Court. Mr. St. Pierre said he submitted 40 supplemental proposed findings of facts which supported CRMC’s approval of the application Mr. St. Pierre said he reiterated the points in the transcript to address the issues in support of the application. Mr. St. Pierre said there was a question on the water quality certification from DEM and it was presented into evidence that the applicant could put in 5 – four bedroom single family homes on the land without needing CRMC approval, but the judge did not see evidence to support this and this was addressed in Items 36-39 of his finding of facts. Mr. St. Pierre said he reviewed the objector's findings and found that in items 3-5 was an attempted to revise the CRMC and judge’s decision. Mr. St. Pierre felt that his findings #36-39 applied to support the CRMC’s decision. Mr. St. Pierre wanted the council to adopt his supplemental proposal on the finding of facts and send the application back to the court to render its decision. Mr. Abedon stated that items 36-39 of Mr. St. Pierre’s findings refer to the to 5 – four bedroom houses and were not on the original proposal submitted to the council and asked why he put this in. Mr. St. Pierre replied to address the concern of what 10 units with 20 bedrooms versus 5 – four bedroom houses would have on the impact of nitrates into the bay. Mr. Rotelli said Vice Chair Lemont had raised the issue of what could be developed on this site for residential use without CRMC approval and DEM’s water quality certification said you could put 5 – four bedroom residential houses with ISDS systems and not denitrification system on the property. Mr. Reitsma said they indicated only a couple of finding of facts and there is only a limited scope of review. Mr. St. Pierre said the remand of the judge was based on finding of fact #42 and requested that this be addressed by the council. Mr. Reitsma asked if legal counsel agreed that finding #42 is the scope of the finding of fact. Mr. Goldman replied yes that and a little bit more. Mr. Goldman said CRMC had to justify why the council took the applicants’ expert testimony over CRMC staff recommendation. Mr. Reitsma agreed with legal counsel. Mr. Reitsma felt they need to consider how they came to the decision at the time. Mr. Wicks stated that the subcommittee’s first 41 findings of fact supported the subcommittee findings. Mr. Wick felt the 5-four bedroom houses not within the CRMC jurisdiction was immaterial to the CRMC decision on the application. Mr. Wick felt the subcommittee was the second tier of the council and the council gave no findings not topsupport the subcommittee recommendation. Mr. Wick felt the court supported the subcommittee’s report and felt the council should have supported the subcommittee report for the 7-duplex units. Mr. Wick said there was no evidence to support that 5-four bedroom homes would be more detrimental than 7-duplex units and felt the applicant used this as a threat. Mr. St. Pierre said there was no threat by the applicant that they could build 5-four bedroom units without needing CRMC jurisdiction if the application was not granted. He said Mr. Lonardo testified that there would be more users on residential homes than users in the duplex units. There would be eight users in a residential homes versus four users in a duplex. Mr. Coia said they are not here to judge credibility but to hear both sides and weigh the testimony so the council could make a more persuasive argument to the court to support its decision. Mr. Goldman said at the full council meeting the subcommittee report put more weight on the staff recommendation and the council based its decision on the applicant’s expert witnesses’ testimony. Mr. Reitsma said they all agree with the council’s decision but they need to document their decision in finding #42 and asked what the council should do this. Mr. Reitsma said other evidence had been submitted to support this. Mr. Rotelli asked if this type of situation had been before the council previously. Mr. Goldman replied no, this was a unique situation. Chair Tikoian agreed. Mr. Reitsma said they needed to address the reason they made this determination was it based on the water quality certification, how DEM arrived at their decision and why it was different than what CRMC staff come up with. Mr. Reitsma felt the 5-four bedroom subdivision was not a threat raised. Mr. Reitsma said they need to address the finding why the judge is referring heavily to the subcommittee recommendation. Mr. Reitsma wanted to know if he could change his vote. Mr. Reitsma had a problem with overriding a subcommittee recommendation. Mr. Goldman said the council needed to determine who had more weight in their testimony. Mr. Goldman said the court stated that the council needed to beef up its decision and how they determined their decision and the court would decide whether it supported the council’s decision or overturn the council’s decision. Mr. St. Pierre agreed with Mr. Goldman. Mr. St. Pierre said the council was asked to provide substance as to why they approved 20-units instead of 14 units recommended by staff. Mr. Wick agreed. Mr. Wick felt the council had to submit evidence of the finding of facts why they contradicted the subcommittee report. Chair Tikoian stated the subcommittee makes a recommendation to the full council but the council makes the final decision. Mr. Reitsma said they need to show the judge that the council considered all the evidence not one side and how it got to its decision. Mr. Goldman said the decision of the subcommittee was based on evidence put forward by the applicant and objectors to the subcommittee. Mr. Goldman said the council weighed the pros and cons and found the numbers and calculations submitted by the applicant’s expert witnesses were more persuasive than staffs. Mr. Goldman said they need to make this clear to the judge that this is how the council came to their decision. Vice Chair Lemont stated that he sat through all the subcommittee hearings and testimony. He said he was persuaded both sides presented very good witnesses and staff did a good job. Vice Chair Lemont stated that he had reviewed the packet and come to a quandary and asked if he was allowed to change his vote. Vice Chair Lemont explained that he was on the subcommittee that recommended 7 units but he was persuaded with the evidence that 10 units were better. Mr. Goldman replied no he could not change his vote. M. Coia, seconded by Vice Chair Lemont moved to have legal counsel redraft the decision of the council to incorporate the remarks in the Mr. St. Pierre’s brief and include that the decision made by the council was based on the evidence provided by the applicant’s expert witnesses on the calculations rather than staffs calculations. Mr. Reitsma felt that the items on page 2 of Mr. Wicks brief regarding his statement on the water quality certification should be incorporated in the decision. Chair Tikoian called for a roll call vote:

On the reading of the transcript.

Mr. Shekarchi No Mr. Coia Yes
Mr. Abedon Yes Sen. DaPonte Yes
Mr. Reitsma Yes Vice Chair Lemont Yes
Sen. Sosnowski Yes Chair Tikoian Yes
Mr. Sahagian Yes

8 Affirmative 1 Negative 0 Absentation

The motion carried.

On the motion.

Mr. Abedon Yes Mr. Coia Yes
Mr. Reitsma Yes Sen. DaPonte Yes
Sen. Sosnowski Yes Vice Chair Lemont Yes
Mr. Sahagian Yes Chair Tikoian Yes

8 Affirmative 0 Negative 0 Absentation

The motion carried.

10. Enforcement Report –May, 2003

There were none held.

11. Category “A” List

There were none held.

There being no further business before the council the meeting, the council adjourned at 9:57 p.m.

 

Respectfully submitted,

Grover Fugate
Executive Director CRMC

Reported by Lori A. Field

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