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RI Coastal Resources Management Council

...to preserve, protect, develop, and restore coastal resources for all Rhode Islanders

In accordance with notice to members of the Rhode Island Coastal Resources Management Council a meeting was held on Tuesday, April 27, 2004 at 6:00 PM at the Narraganset Bay Commission Boardroom – One Service Road, Providence, RI.

MEMBERS

Mike Tikoian, Chair
Paul Lemont, Vice Chair
Jerry Sahagian
Jerry Zarrella
Larry Ehrhardt
Ray Coia
Neill Gray
Joe Shekarchi

STAFF PRESENT

Jeff Willis, CRMC Deputy Director
Ken Anderson, CRMC Senior Engineer
Brian Harrington, CRMC Environmental Scientist
Laura Miguel, CRMC Enforcement Officer
Brian Goldman, Legal Council

1. Chair Tikoian called the meeting to order at 6:06 PM.

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

Mr. Coia, seconded by Mr. Shekarchi moved approval of the April 13, 2004 minutes. The motion was carried on a unanimous voice vote.

2. STAFF REPORTS

Mr. Willis stated that they had received a letter from Congressman Langevin regarding the CRMC’s 2003 Yearly Status Report for Aquaculture in Rhode Island and stating how important aquaculture is to our state and how invaluable the council’s work has been.

3. SUBCOMMITTEE REPORTS

Mr. Goldman announced that the subcommittee on the Sakonnet Point application, Application #2002-05-083, has recommended approval of the application as modified. Chair Tikoian noted that this would be placed on the next available agenda.

Vice Chair Lemont announced that the Block Island / Champlin’s Marina application subcommittee meeting would be held on Wednesday, April 28th at 7:00 p.m. at the Narragansett Town Hall.

Chair Tikoian also informed council members that Mr. Fugate has hurt his back and was out of work and not sure when he would be back. Chair Tikoian stated that Mr. Fugate is working part-time from home and that Mr. Willis is taking over the day to day activities.

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

6. APPLICATIONS WHICH HAVE BEEN OUT TO PUBLIC NOTICE AND ARE BEFORE THE FULL COUNCIL FOR DECISION:

2004-02-003 ALISON & STEPHEN WALK – Proposed alterations to freshwater wetlands in the vicinity of the coast to include: construct two additions, one 8’ x 19’ and one 8’ x 11’; and an attached deck (10’ x 21’) to an existing dwelling. Located at Plat 59, Lot 17A; 96 Glen Farm Road, Portsmouth, RI.

Alison and Stephen Walk, the applicants were present.

Chair Tikoian recused himself.

Vice Chair Lemont presided over the application.

Vice Chair Lemont stated that the application was to construct an 8’ x 19’ addition, an 8’ x 11’ addition and a 10’ x 21’ deck. Vice Chair Lemont said the staff biologist and engineer deferred the application to the council for their decision. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson explained that in the staff biologist’s assessment he did not feel the freshwater wetland restrictions were met. Mr. Anderson said they felt there was an alternate location and there would be minimal impact to the freshwater wetland on the wetland side of the property. Mr. Anderson said the alternate location recommended by staff would increase the setback from the wetland. Mr. Walk submitted two maps of the site plan to the council as exhibits which were a blow up of the site plan and depicted the existing dwelling and wetland area as well as the proposed additions. Mr. Walk explained that the addition would be an extension of 8’ of house, a wooden deck and a mudroom. Mr. Walk submitted a series of photographs to the council as exhibits – photograph “A” was a picture of the house to show where the 8’ addition would be and was depicted by stakes in the ground; photograph “B” depicted a 1/3 acre site which has stairs and a stone retaining wall already there; photograph “C” depicted the project in the wetland area and showed the existing stone bridge. Mr. Walk stated that the staff biologist was concerned with the impact the project would have on the wetland area. Mr. Walk felt there would be minimum impact on the freshwater wetland. Mr. Walk described the wetland as a stream that is defined by a bank. Mr. Walk said the alternative shown is to build around the wall and boulders. Mr. Walk said staff was concerned with the function and value of the wetland. Mr. Walk stated that he has never seen any fish in the stream and the stream is less than 8” deep. Mr. Walk stated that the alteration would take place out of view of other landowners or the public. Mr. Walk explained that there was very little wildlife on the property except for field mice. Mr. Walk said a small patch of lawn would be impacted by the addition approximately 100 s.f. Mr. Walk explained that the house is over 200 years old with the additions. Mr. Walk said they live there fulltime and this was their permanent home. He said they received CRMC approval for a bay window but decided not to build it. Mr. Walk said the staff biologist recommended that they build out to the north as not to build out to the wetland. Mr. Walk explained that the rooms on this side of the house that face out are very long and narrow and on the other side of the house are the kitchen and bathrooms and to add the addition to this side would create a hardship. Mr. Walk said he did have their architect look at the alternative recommend by staff but felt this was the better location. Mr. Walk said the wood deck on the north side of where the proposed building extension came out 2 feet further than the addition and would not affect the water flow around the house or roof. He said they look at the building where recommended by staff but did not feel it was feasible. Mr. Walk said the mudroom is on ground already approved on the gravel driveway approved by CRMC. Mr. Walk felt this would balance their needs and the impact would be very low. Mr. Walk requested approval for their application. Vice Chair Lemont asked why they wanted to build the deck out 2’ additional feet from the addition at 10’ x 21’ instead of 8’ x 21’. Mrs. Walk explained that they needed the 10 width for their furniture and table otherwise the deck would impede access to the stairs and doorways to the house. Mr. Sahagian asked what the size of the property was. Mr. Walk replied that it was 2.75 acres. Mr. Sahagian asked what the size of the house was. Mrs. Walk replied that it is listed as 28,000 s.f. but they felt it was only 24,500 s.f. Mr. Sahagian felt this was a greater than 2 acre lot and with the addition felt the lot culd support this and felt it was needed. Mr. Sahagian asked what the engineer’s opinion was regarding the runoff to the stream. Mr. Zarrella wanted to know if the foundation would be a slab of cement or a crawl space. Mrs. Walk replied that the mud room would be on a slab and that the house extension area would be a setting 4’ deep or on a slab. Mr. Zarrella felt the runoff issue needed to be addressed. Mr. Gray stated that in the staff conclusion he didn’t see where there would be any significant impact and the only issue was the setback from the stream. Mr. Anderson replied yes. Mr. Gray asked if the addition with the deck had very little impact on the stream. Mr. Anderson replied yes. Mr. Sahagian, seconded by Mr. Gray moved approval of the application as submitted with all staff stipulations and that the runoff issue be addressed with staff. The motion was carried on a unanimous voice vote.

2003-10-026 ARTHUR SILVESTER – Construct and maintain a timber residential boating facility consisting of a 232.3’ x 4’ fixed pier and a 20’ x 4’ “T” section. The facility will extend 149.8’ beyond mean low water. A mechanical boat lift will also be installed at the terminal end of the facility. Located at Plat 46, Lot 45; 8 Oliver Hazard Perry Road, Portsmouth, RI.

The applicant was not present. Arthur Russo, the applicant’s attorney and Gus Krevzkamp, the applicant’s engineer were present on behalf of the applicant. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson stated that the application was for a recreational boating facility including a boat lift and this was why it was a Category B application. Mr. Anderson stated that a 99.9’ length variance was needed. He said there were no engineering or biological objections to the application. Mr. Russo submitted a letter of authorization from the applicant to represent him to the council as an exhibit. Chair Tikoian noted that the staff report was very thorough. Chair Tikoian wanted to know what the water depths were and wanted to see where the depths were on the plan. Mr. Shekarchi seconded by Mr. Coia moved to accept Mr. Krevzkamp as an expert in civil engineering. The motion was carried on a unanimous voice vote. Mr. Krevzkamp explained the water depths on the dock at 1’ intervals. He said the depth was 4’ at mlw at the boat lift. Chair Tikoian asked how far they had to go out to get 4’ depth. Mr. Krevzkamp stated that they had to go out 25’ to get the 4’ depth. Mr. Zarrella asked what the depth was at mlw. Mr. Krevzkamp replied that there is a 3’ depth at mlw. Chair Tikoian was concerned with going out further and further with dock lengths to obtain a deeper depth of water. Chair Tikoian wanted to know if there were other docks in this area. Mr. Anderson replied yes and this dock is similar to the other docks in the area. Mr. Shekarchi asked about the title insurance opinion regarding meeting the subdivision regulations. Mr. Russo replied that they met the subdivision regulations but they have to get the abutters approval and have to allow access under the dock. Mr. Russo said there is only one abutter to the south and they got their approval. Mr. Ehrhardt, seconded by Mr. Zarrella moved approval of the application with all staff stipulations. Mr. Gray said the applicant is lifting out a 32’ vessel and asked if there was anything in the regulations that deals with the size of boats on lifts. Chair Tikoian said there was nothing in the regulations. Mr. Gray asked if the policy and planning subcommittee should look at this. Chair Tikoian noted that this was not the time to bring this up but that it could be taken up at a policy and planning subcommittee meeting. The motion was carried on a unanimous voice vote.

2003-03-99 RHODE ISLAND DEPARTMENT OF TRANSPORATION – Demolish the old Jamestown Bridge (Bridge No. 400) (5,332’ total length) with the exception of the trestle bridge sections from the West Abutment (North Kingstown) to Bent 28W, approximately 1,650 feet. This remaining portion of the bridge will be rehabilitated under a separate permit application for use as a recreational fishing pier. Concrete and steel debris from the demolition of the old bridge will be used to create a series of five (5) marine artificial reefs in the State’s coastal and offshore waters. (This activity may require a Special Exception from the RI Coastal Resources Management Program Section 300.10) Project Location: State Route 138, Old Jamestown Bridge No. 400; North Kingstown and Jamestown, RI.

Emily Holland and Rahmat Noorparvar, engineers for the Rhode Island Department of Transportation, the applicant was present. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson stated that the application is to demolish the old Jamestown Bridge and depose of it by creating artificial reefs and the rest of the disposal material would go to an upland disposal site. Mr. Anderson said staff recommended approval of the application. Mr. Anderson noted that the demolishing plan needed to be reviewed during the whole process. Chair Tikoian asked Mr. Anderson to give the council more details on the application. Mr. Anderson explained that this project has been in planning for over 10 years. Mr. Anderson said there had been many more reef sites previously but dwindled down because of the lead concerns and other resource values. Mr. Anderson stated that there would only be two reef sites now. Mr. Anderson explained that the demolition itself they looked at the mitigation methods and the impact on fish and the time of the demolition periods. Mr. Anderson said they agreed that staff would be involved in the demolition process and the blasting would be done at certain times of the year. Mr. Anderson said they added a stipulation that required the RI Dept. of Transportation to hire an environmental monitor to monitor the entire project and to keep CRMC staff involved in the project and updated on the project. Chair Tikoian noted that they are still awaiting three approvals DEM Water Quality Certification, Army Corps and the US Coast Guard. Ms. Holland replied yes. Mr. Anderson said that 1,650 feet of the bridge on the North Kingstown side was supposed to be left for a fishing pier but it would not be removed and they would build another fishing pier later. He noted that the fishing pier would be handled under a separate application. Ms. Holland said they had nothing to add to the application. Vice Chair Lemont stated that the residents of North Kingstown were opposed to a structure being built in this area. Ms. Holland said they had received several concerns regarding the fishing pier but they are required by law to have a fishing pier there. Mr. Anderson said there was legislation under former Governor DiPrete to air mark a certain area for a fishing pier. Chair Tikoian stated that the North Kingstown Town Council voted to oppose the pier and asked if the RI DOT had rectified this with the town. Mr. Nooparvar responded that the RI DOT is working with the town on this issue. Chair Tikoian asked if they received new approval from the town for the application. Ms. Holland stated that they received a letter of no objection to the application in favor of removal of the bridge but they had not statement from the town regarding the fishing pier. Mr. Anderson stated that there was a letter dated 5/19/03 from the town in the packet which stated that they have no objection to the removal of the bridge but objected to the fishing pier. Vice Chair Lemont noted that the fishing pier was not part of this application. Vice Chair Lemont asked if they were leaving the 1600’ of the existing bridge. Mr. Anderson responded that this depends on the second application for the new fishing pier. Ms. Holland said they have no timeframe on the application for the new fishing pier. Mr. Zarrella asked how long the permit would be good for. Chair Tikoian replied that a permit is good for three years with one year extensions. Chair Tikoian was concerned with the other outstanding permits and another permit for the 1600’ portion of the bridge if it was not sound and would be demolished. Chair Tikoian asked if they were aware of the letter dated 5/19/03 from the North Kingstown Town Clerk stating an objection to the application. Ms. Holland replied yes but there is also another letter of no objection t the application. Chair Tikoian was surprised that the town was not present if they objected to the application. Mr. Ehrhardt stated that the town and the town council were in favor of having the entire bridge removed but had concerns with the 1600’ portion of the bridge mandated by the state to be a fishing pier. Mr. Ehrhardt stated that the town wanted it to be maintained by the town but his has not been done yet. Mr. Ehrhardt said that whether the 1600’ was left or a new 1600’ pier there were still concerns on it being maintained. Chair Tikoian noted that he was concerned that the town was not present. Chair Tikoian stated that this application had nothing to do with the 1600’ section and it can be rectified by a separate application. Vice Chair Lemont was concerned with leaving the 1600’ and having no money to fix it or replace it. Chair Tikoian stated that CRMC staff would review the work plan, have council review or have it handled administratively by staff. Chair Tikoian felt that if during the administrative staff review concerns came up they could bring their concerns to the full council. Vice Chair Lemont asked when they proposed to do the demolition of the bridge. Mr. Nooparvar replied by the end of the year. Vice Chair Lemont asked if the council delayed this until RI DOT could do the entire span of the project what the impact would be. Ms. Holland replied it would delay the project. Chair Tikoian called for public comment. There was no public comment. Chair Tikoian asked if the applicants had read all the staff stipulations. Ms. Holland replied yes. Chair Tikoian requested that a stipulation be added to the motion to include that the assent be held until the other permits are received for demolishing the bridge with the exception of the 1600’ portion. Ms. Holland stated that the US Coast Guard would not issue a permit until they had CRMC approval. Mr. Zarrella asked if the department considered this a major project. Ms. Holland replied yes. Mr. Zarrella asked if they were funded for the project. Mr. Nooparvar replied yes. Mr. Zarrella asked if they were funded in 1999 or 2003. Mr. Nooparvar replied in 2003. Chair Tikoian asked if the disposal site was defined properly in the assent. Mr. Anderson replied that the disposal sites were defined as the Block Island site north of Sandy Point and the other was at the Rhode Island Sound. Mr. Anderson stated that the Block Island site had been eliminated due to comments received and the new site was listed on page 20 of the packet which listed the site in longitude and latitude or another site would be determined when all parties agree whether to go outside of the state 3 mile limit. Chair Tikoian stated that he would have liked to see more state agencies involved on this application. Chair Tikoian complimented staff for there work on this application. Mr. Sahagian, seconded by Mr. Ehrhardt moved approval of the application with all staff stipulations, subject to the work plan being reviewed by staff and if concerns are raised that the application come back before the full council for their review and that the assent be held until other permits are received. Vice Chair Lemont stated that if makes it difficult when legislation is passed by a previous Governor when a town does not want the pier but the RI DOT says you have to have the pier. Vice Chair Lemont felt the entire bridge should be torned down and not leave a portion. The motion carried. Vice Chair Lemont was opposed.

Chair Tikoian called for a recess at 7:07 p.m. Chair Lemont called the meeting back to order at 7:10 p.m.

7. ENFORCEMENT ISSUES SEEKING COUNCIL DIRECTION/ACTION:

C&D #2003-3595 – AMANDA DONNELLY – Alteration of Freshwater Wetland and Stream located at Plat 19, lots 83 & 126; Bay Cliff Farm, North Kingstown, RI.

Amanda Donnelly, the applicant was present. Donald Packer, the applicant’s attorney was present on behalf of the applicant. Kelly Morris, attorney for the objectors was also present. Chair Tikoian stated that this was C& D enforcement action before the full council for direction/action. Mr. Goldman explained that the reason this was before the full council was because they held two hearings in the administrative fine process and could not make a decision. Mr. Goldman stated that the only thing the administrative fine hearing could do was levy a fine but they wanted restoration of the site. Mr. Goldman said there was no process to allow the objectors to intervene on the application and the C&D was before the council to address this. Mr. Goldman stated that there were a number of parties involved and the council needed to decide if they should let them intervene. Ms. Miguel gave council members a brief history on the application. Ms. Miguel stated that this was a horse farm in North Kingstown. She that in they went out to the site on 12/6/03 in response to information received that the stream was excavated. Ms. Miguel stated that CRMC staff walked the site found there was an alteration to the freshwater wetland site. Ms. Miguel said a level of alteration had taken place over time and there was no DEM approvals for the work done on the site. She said they have had an administrative fine hearing and a fine was issued and paid by the applicant yesterday. Ms. Miguel said the site had been significantly altered and the enforcement staff wanted some direction from the council on how they should proceed. Ms. Miguel said in her reading of the regulations she felt the site needed to be restored and had expressed this to the applicant. Mr. Miguel said there has been a lack of action by the applicant and they have not gotten any response to this level of violation. She noted that there were a series of photographs in the packet. Ms. Miguel stated that the 1972 photograph depicted the pallet and barn building and everything else was forested. She said if you look at the photograph taken by Mr. Anderson on 3/30/04 there has been significant work done. Chair Tikoian stated that there appears to have been serious alterations to the site. Mr. Zarrella asked if the Division of Agriculture had been out to the site and determined if this was a farm, if this was a farm it would be exempt from CRMC. Ms. Miguel replied that the Division of Agriculture had been out to the site but it has not been determined if this was a farm. Mr. Goldman felt there were a number of issues to be addressed before the council made a decision. Mr. Goldman explained that they could do maintenance to the property but this was an extreme alternation. Mr. Goldman said they advised the applicant to restore the site instead of issuing a fine. He said the abutter filed a petition with the court because of water flowing on his property. Mr. Goldman said the council could hear from the applicant whether they wanted to restore the site and hear from the abutter whether they plan to file a court action. Mr. Goldman said if there is no action that the full council would have to hear legal argument from the applicant that this is a farm. Mr. Goldman said they could not move at the administrative fine level and needed a full council hearing on this or they could set up a timeframe to restore the site. Ms. Miguel explained that the applicant was working with the USDA on a long-term plan for a farm and not looking at the wetland alteration or restoration. Chair Tikoian asked where the applicant stood on this as they raised the issue that this was farm area and felt it was not subject to restoration. Mr. Packer stated that he was not sure what the council’s procedure was on this. He said they had an administrative fine hearing and a decision had been entered and they would appeal this decision to the Superior Court. Mr. Packer said there position is that this is an active farm and not subject to CRMC regulations. Mr. Packer felt they did maintenance to clear out a drainage ditch. Chair Tikoian asked if they took out a maintenance permit. Ms. Miguel replied no that they did not qualify for maintenance under the wetland regulations. Mr. Packer said they stopped all work when the C&D was issued and presented a temporary interim plan while they worked with the USDA and RI Agriculture Department to keep this an active farm. Mr. Packer noted that the applicant had paid the administrative fine. Mr. Packer said they wanted to establish a maintenance plan and do restoration to the area. Chair Tikoian asked under what rules he was stating they do not need CRMC approval. Mr. Packer replied under RIGL 2-1-22. Mr. Goldman said this came up at the administrative process and he felt this far exceeded maintenance activity. Mr. Goldman stated that the council could issue an administrative fine but this does not preclude the council from taking further compliance action against the applicant. Ms. Morris felt the alterations adversely impacted the abutter property and was an alteration to the wetland. She noted that the stream runs off the property into Narragansett Bay and was concerned with the impact on the bay. Chair Tikoian asked if CRMC staff called DEM to have them look at this. Ms. Miguel replied yes but the levels were below what could be a violation. Ms. Morris felt further enforcement action was needed. Ms. Morris wanted to know what the applicant has been done since December 2003. Mr. Goldman explained that there had been a number of hearings scheduled. He noted that there had been a hearing scheduled on 1/30/04 but it had been continued 30 days to allow the applicant to work on a restoration plan, a hearing had been scheduled in February 2004 but Mr. Packer requested a continuance due to medical reasons and it had been rescheduled for 3/26/04. He said Ms. Morris had filed an attempt to intervene. Mr. Goldman stated that staff had gone out to the site to see what had been put into place and another hearing had been scheduled on 4/2/04 and it was recommended that this have a full council hearing. Ms. Morris stated that they have requested certain information from the applicant but they have not received it. Chair Tikoian asked if the abutter had started Superior Court proceedings. Ms. Morris replied no because a CRMC full council meeting had been scheduled. Mr. Sahagian felt the matter needed to be set down for a full council hearing. Chair Tikoian agreed but said wanted to get everyone up to speed as to what has been happening and set it down for a full hearing. Ms. Miguel stated that she wanted to have the DEM wetland area delineated. She said they have seen wetland flags on the site and felt the applicant new about the wetland. Chair Tikoian asked if it was the applicant’s position that this was a farm area and not subject to CRMC jurisdiction. Mr. Packer replied yes and that they were working with the USDS to come up with a plan. Chair Tikoian asked if the application was continued 30 days could the applicant come up with a final restoration plan or if they could do it in two weeks. Ms. Miguel noted that the USDA was not working on a restoration plan but were working on a long term maintenance plan for a farm. Ms. Miguel felt most of the area was a wetland and that a lot of fill had been done. Ms. Miguel wanted a comprehensive restoration plan. Mr. Zarrella asked how many acres the property was. Mr. Packer replied just over 7 acres. Mr. Zarrella asked if this was taxed as a farm. Mr. Packer replied yes as open space farm land taxed by both state and federal. Mr. Goldman recommended that the council put the application down for review in 30 days and the applicant work on a restoration plan for the council’s review and that Ms. Morris needed to file a motion to intervene and file legal action. Mr. Goldman stated that if no satisfactory action is received then the council could take action. Chair Tikoian wanted to define what issues needed to be addressed. Chair Tikoian felt the wetland issued needed to be addressed and they needed to define what the restoration plan was. Ms. Miguel felt the site needed to be restored back to the 1972 plan when the wetland regulations were in place. Ms. Morris wanted to have the wetlands delineated. Chair Tikoian asked what the applicant had submitted for a restoration plan. Mr. Packer stated that they would submit an application for work done to the drainage ditch. Chair Tikoian recommended that the application come back to the council in 30 days and that legal counsel receive memos from Mr. Packer and Ms. Morris on the applicability of Title 2 and whether wetland regulations apply to farm land, that the objector’s file a motion to intervene within 7 days and if Superior Court action is taken that CRMC be notified and that a full restoration plan be presented at that time. Vice Chair Lemont seconded by Mr. Coia moved that the application come back to the council in 30 days and that legal counsel receive memo’s from Mr. Packer and Ms. Morris on the applicability of Title 2 and whether wetland regulations apply to farm land, that the objector’s file a motion to intervene within 7 days and if Superior Court action is taken that CRMC be notified and that a full restoration plan be presented at that time. The motion carried on unanimous voice vote.

8. Enforcement Report – March, 2004

There were none held.

9. Category “A” List

There were none held.

The meeting concluded at 7:52 p.m.

Respectfully submitted,

Grover Fugate
Executive Director CRMC

Reported by Lori A. Field

CALENDAR INDEX

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