In accordance with notice to members of the Rhode Island Coastal Resources Management Council a meeting was held on Tuesday, July 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
Joe Shekarchi
Dave Abedon
Larry Ehrhardt
Neill Gray
Fred Vincent
Joe Paolino
Ray Coia
Tom Ricci

STAFF PRESENT

Grover Fugate, CRMC Executive Director
Ken Anderson, CRMC Senior Engineer
Dave Alves, CRMC Aquaculture Coordinator
John Longo, Legal Counsel
Brian Goldman, Legal Counsel

1. Chair Tikoian called the meeting to order at 6:09 PM.

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

Mr. Coia, seconded by Mr. Ricci moved approval of the June 22, 2004 minutes. The motion was carried on a unanimous voice vote. Chair Tikoian noted that the Executive Session adjourned at 7:55 p.m.

2. STAFF REPORTS

Mr. Fugate passed out a summary on the dredging projects for private use for cad cell utilization for marina. The summary showed the cost paid by private applicants per dredge volume, post dredge volume and fee paid. Mr. Fugate noted that there is a 75-cent surcharge paid to the state and the fees are turned over to the Army Corps of Engineers.

3. SUBCOMMITTEE REPORTS

Chair Tikoian briefed council members on the Governor’s Bay Commission. Chair Tikoian stated that the commission met on July 16th to determine the life of the commission and decided to turn the commission over to the new legislation passed by the Senate and House. Chair Tikoian noted that the commission is made up of CRMC, DEM, RIDOT and EDC to address environmental and economic issues.

Chair Tikoian stated that there had been two public hearings on the East Greenwich SAM Plan and they will meet again on July 28th in Warwick.

Chair Tikoian noted that they will hold a preliminary hearing on the Providence SAM Plan.

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

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

2004-05-135 RIDOT (Cliff Walk) -- Repairs/restoration/improvements to “Cliff Walk” at twenty-seven (27) locations, between Ruggles Avenue to terminus at Bailey Beach. The proposed is to generally restore the pedestrian access safety of the Cliff Walk*. Work was previously approved by CRMC (1994) but not implemented due to funding. Located on the “Cliff Walk” in Newport, RI.

Pat Degregory, was present on behalf of the RI Department of Transportation. Turner Scott, attorney for the abutters was also present. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson stated that the application was to do repair work to the Cliff Walk at 27 locations. He said that most of the work qualified for maintenance. Mr. Anderson stated that four locations require new work and were a Category B application. Mr. Anderson said staff recommended approval of the application. Chair Tikoian stated that they had received a motion for a continuance from Mr. Scott for the Maine Avenue issues. Mr. Scott stated that he filed a motion for a continuance because his clients have a problem with the Maine Avenue portion of the project. Mr. Scott said they had no other objection to the other aspects of the application. Mr. Scott stated that he did a title search on the application and had an independent title search done. Mr. Scott said he has not had an opportunity to review the plans and he wanted to meet with RIDOT and the City of Newport on this. Mr. Scott wanted to talk to the RI DOT regarding the timeframe of the project. Mr. Degregory stated that they wanted to begin the construction of the project starting in January 2005 and complete the project within the calendar year. Mr. Degregory stated that they were willing to work with Mr. Scott regarding the Maine Avenue portion of the application. Chair Tikoian stated that the council could approve the application subject to the Maine Avenue portion and subject to review by the executive director. Mr. Ehrhardt wanted to know what portion of the project Maine Avenue was. Mr. Anderson stated that Maine Avenue is at site “L4” on the plan. Mr. Scott had a problem with approving the application subject to this. Chair Tikoian asked how soon the parties could meet to rectify this issue. Mr. Scott replied he could meet with RIDOT within the week. Chair Tikoian asked what effect this would have on RIDOT’s schedule if they put the matter over for 30 days. Christos Xenphontis stated that in order to meet their construction schedule for next year they have to advertise during the fall and winter so construction could begin in March 2005 and be finished by December 31, 2005. Chair Tikoian asked if they could approve the application subject to the Maine Avenue portion. Mr. Xenphontis said they are willing to meet with Mr. Scott to address their issues but they need entire approval on the application, as they have to advertise the entire project to get a bid. Mr. Shekarchi, seconded by Mr. Coia moved approval of the application subject to the Maine Avenue portion (L4) and that they come back in 30 days for the Maine Avenue portion (L4). Mr. Shekarchi requested that RIDOT bring their lawyer at that time. Vice Chair Lemont asked if they could put the Maine Avenue portion of the project could they add it on to the advertisement. Mr. Xenphontis said it would effect the cost of the project. Edward Herrlinger, an objector, read a letter of concern from him and his wife, Gail. Mr. Herrlinger said they were concerned with the repairs and restoration to the cliff walk. He stated that they were concerned with access to the cliff walk by Marble House property and his property. Mr. Herrlinger stated that the shoreline is shored up by large boulders. Mr. Herrlinger said there would be some activity-taking place in front of Marble House and his property and they wanted the work done by barge instead of by land. Mr. Degregory replied that they can do certain portions of the project by barge but if there were ledge areas they would have to do this work by land. Chair Tikoian asked if there were public hearings prior to the application coming before CRMC. Mr. Degregory replied no. Mr. Vincent stated that he sits on the Transportation Enhancement Commission and they held hearings in the City of Newport regarding this to address any issues and safety concerns on this project. Mr. Xenphontis stated that RIDOT, the City of Newport and the Cliff Walk Commission held monthly public meetings on this project. Mr. Shekarchi, seconded by Mr. Coia moved approval of the application with the exception of section L4 (Maine Avenue) and that the executive director approve section L4 and if the issues are not resolved that it come back before the full council. Mr. Ehrhardt asked if section L4 could have been approved administratively. Mr. Anderson replied yes. Mr. Gray asked if there was no agreement on L4 they would have to come back before the full council. Chair Tikoian stated that if the objector was not satisfied that the matter would come back before the full council in 30 days. The motion was carried on a unanimous voice vote.

2004-05-024 ROBERT RHEAULT/SPATCO – Establish a five acre aquaculture farm to culture the American Oyster. The farm proposes to broadcast predator proof oysters on the bottom entailing the use of no gear. Oyster will then be harvesting using traditional methods. Located in Point Judith Pond, Narragansett, RI.

Robert Rheault, the applicant was present. Mr. Alves gave council members a brief summary on the application. Mr. Alves stated that the application was to lease a 5-acre site and move juvenile oysters. Mr. Alves said the juvenile oysters would be moved from this site without any gear except corner markers. Mr. Alves stated that there was no staff objection to the application. Chair Tikoian asked if this was a new lease. Mr. Alves replied yes. Chair Tikoian asked what the length of the lease was. Mr. Alves stated that the lease was for a 10-year permit with yearly lease renewals annually. Mr. Sahagian noted that 10 years ago there were a lot of objectors to aquacultures and now there were no objectors. Mr. Sahagian complimented the applicant on the good job he has done on with aquacultures. Mr. Sahagian, seconded by Vice Chair Lemont moved approval of the application with all staff stipulations. The motion was carried on a unanimous voice vote.

2004-01-061 DONALD R. THEROUX -- State of Rhode Island Assent (in accordance with the Coastal Resources Management Program), and a State of Rhode Island Dredge Permit (in accordance with the Marine infrastructure Maintenance Act of 1996 and the Marine Waterways and Boating Facilities Act of 2001, Rhode Island General Laws Chapter 46-6.1) to perform 900 cubic yards of new dredging, construct a 4’ x 160’ residential pier with 2 floats-variance’s have been requested. Located at plat 1, lot 160; 75 Seaview Avenue, Cranston, RI.

Donald Theroux, the applicant was present. Warren Hall, the applicant’s engineer was also present on behalf of the application. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson stated that the application was for a residential boating facility 4’ x 150’ with a 150 s.f. float. Mr. Anderson said the application requires a length variance to extend 94’ beyond MLW requiring a 44’ variance. Mr. Anderson noted that the applicant is within 10’ from the 25’ setback from the abutters’ property but there was no objection from the abutter. Mr. Anderson said staff has no objection to the application. Mr. Coia, seconded by Mr. Vincent moved approval of the application with all staff stipulations and the 44’ length variance. The motion was carried on a unanimous voice vote.

2000-07-047 MARK & LINDA FORMICA – Modification of existing Assent -- Request to add an additional 150 sf of terminal float at an existing residential boating facility. The resultant total square footage of terminal float will therefore be 300 sf , which exceeds the standard terminal float limit specified in Section 300.4.E.3.d by 150 sf. Located at plat 19, lot 145; 61 Asylum Road, Warren, RI.

Chair Tikoian recused himself.

Vice Chair Lemont presided over the application.

Joseph DeAngelis, attorney for the applicants was present on behalf of the applicants. L. Robert Smith, the applicants’ engineer was also present. Vice Chair Lemont stated that the application was for a modification of an existing assent and noted that staff deferred the application to the full council for their decision. Mr. Anderson gave council members a brief summary on the application. Mr. Anderson stated that the applicants proposed to add a float to the dock to use for jet skis. Mr. Anderson stated that the application had gone before the dock subcommittee and the subcommittee recommended approval of the application. Mr. Anderson explained that a side yard setback was required because of the size of the float. Mr. Anderson said they did not receive a letter of objection from the abutters. Vice Chair Lemont asked if any objections had been filed. Mr. Anderson responded no. Mr. DeAngelis explained that they reduced the size of the dock to increase the float size. Mr. DeAngelis said the dock subcommittee approved the tie off pilings to the north. Mr. Anderson noted that this was not in the dock subcommittee minutes, the minutes only mentioned the addition of the float. Mr. DeAngelis asked the council to approve the two tie-off pilings to the north and wanted CRMC approval for the variance to the 25’ setback. Mr. DeAngelis stated that they only intruded 10’ into the 25’ setback. Mr. DeAngelis said no objection had been filed by the abutters but they would not sign a letter of no objection. Mr. Anderson stated that the application was for a float not the two tie-off pilings on the opposite of the property because they did not effect the setback. Mr. Smith noted that he reviewed the application. Mr. Smith stated that the application was to place 150 s.f. jet ski float on the dock. He said staff asked them to move the float to the north but it was difficult to come in to the dock form the south side and they needed to put the tie-off pilings on the north side. Mr. Smith said there were impediments on the south side of the dock. Mr. Smith felt the applicants met the variance criteria. Mr. Smith said there would be no adverse environmental impact. Vice Chair Lemont asked how far below the surface the impediments were. Mr. Smith replied a couple of feet down at low tide. Mr. Ehrhardt asked when the dock was built. Mr. DeAngelis stated that they received CRMC approval in 2000 and the dock was built in 2000. Mr. Ehrhardt stated that if an application was approved with a limit size and when an applicant comes in to enlarge the size of the dock built does this kick in any new policies. Mr. Fugate responded no. Mr. Fugate stated that an applicant is not locked in to the size of a dock as there are changes in the policies and an applicant can add to an application by making a modification to the assent. Mr. Ehrhardt asked if they needed a letter of no objection from the abutter regarding the setback back. Mr. Fugate explained the three ways the council addresses setbacks: 1) 25’ setback from property line; 2) letter of no objection from the abutter; and 3) send out public notice and the council would make the decision. Mr. Vincent stated that the float had a 300’ width and asked if the applicant was only adding a 150 s.f. float for the jet ski. Mr. Sahagian stated that a modification only triggers an application fee. Mr. Gray stated that there is a 13’ x 18’ dock on every plan and asked if was going to be removed. Mr. DeAngelis and Mr. Smith responded yes. Mr. Coia, seconded by Mr. Ricci moved approval of the application with all staff stipulations and the variance. The motion was carried on a unanimous voice vote.

6. APPLICATIONS REQUESSTING ADMINISTRATIVE APPROVAL BEFORE THE FULL COUNCIL:

2004-02-055 SHELTER HARBOR FIRE DISTRICT – Provide a 25-foot undisturbed coastal buffer zone with a ten foot wide access path to an existing concrete boat ramp. Naturalized shrub plantings will be placed within an existing cleared portion of the proposed buffer zone. Also, conduct upland clearing and landscape work landward of the proposed buffer zone. This work will include native shrub plantings along adjacent property lines. Finally, relocate and rebuild an existing, timber boat rack landward of the proposed buffer zone. Located at plat 135, private ROW; Bach Road, Westerly, RI.

Kristen Sherman, attorney for the applicant was present on behalf of the applicant. Scott Rabideau, the applicants’ biologist was also present on behalf of the applicant. Daniel Crocker, attorney for the objector was also present. Chair Tikoian noted that this application had been previously before the council. Ms. Sherman stated that they came before the council on June 22nd. Ms. Sherman stated there was no staff objection to the application. Ms. Sherman explained that the abutter claimed they owned a portion of the property and would file quite title action. Ms. Sherman said the abutters did not have any biological or engineering objections to the application. She said the parties tried to reach a solution through today but were unable to. Ms. Sherman stated that they received a letter from the abutters attorney dated September 2003 threatening that they would file quite title action but that they have not filed any action to date. Ms. Sherman said she spoke with the objector’s attorney today who notified her that they will file a new report by Linda Steere, the objector’s biologist. Ms. Sherman felt it was inappropriate to file this report as they had no biological objection to the application previously and she has never seen the report. Mr. Crocker stated that the objectors’ no longer had a quite title action that they only had environmental issues of concern. Chair Tikoian asked if they had filed a copy of their environmental concerns in writing to staff. Mr. Crocker responded no they just received the report today. Chair Tikoian had a problem with the objector’s attorney changing their objection at the 11th hour. Chair Tikoian stated that the application had been continued to address the title issue and that no environmental issues had raised or filed. Chair Tikoian felt this was an ambush. Mr. Crocker felt this was not an ambush and that they had raised the environmental issues in the Triano’s letter. Ms. Sherman stated that they have not received a copy of the report and felt that the testimony should be limited. Vincent Naccarato, attorney for the objectors Charles and Mary Rogers, noted that they did not have any biological or engineering objections but just some questions. Chair Tikoian was concerned with the objectors changing tactics at this time. Mr. Ricci felt the only issue before the council was the quite title action. Chair Tikoian stated that the only issue was the title issue and the council should hold the hearing only to that issue. Mr. Naccarato stated that their issues of concerns were the physical characteristics on the site plan. Mr. Naccarato stated that there was stone wall on the north end, which would remain as is, and a wooden fence, which would remain. Mr. Naccarato said there was 25’ of coastal buffer and wanted to make sure there would be no cutting of the buffer and trees to the north side of the property and it would remain untouched. Mr. Naccarato also wanted notice to be given to the Rogers when the work would begin. Mr. Rabideau explained that the issues raised by Mr. Naccarato were addressed in the plan. Mr. Rabideau said the stone wall and fence would remain. He said in the 25’ coastal buffer there would be no vegetative management and there was a note on the plan that the cedar trees greater than 12 inches in diameter would remain. Mr. Naccarato wanted trees 9 to 10 inches in diameter to also remain. Mr. Rabideau stated that there are four trees that are greater than 12 inches and they would be adding 4’ of vegetative plantings on the opposite of the fence. Mr. Naccarato asked if the two trees on the other side would remain. Mr. Rabideau replied yes they were outside their area. Chair Tikoian was concerned with the limited objection by the objectors’ attorney and the scope of the issue of the hearing. Chair Tikoian asked legal counsel for their advice and opinion regarding the environmental issues raised. Mr. Goldman clarified the reason the application had been continued. Mr. Goldman explained that the application had been continued because of a lawsuit being filed and if there had been environmental issues they should have been raised at then. Mr. Goldman agreed there was a limited matter before the council and it was within the council’s discretion to exclude the environmental issue. Mr. Crocker said he has zero evidence on record. Chair Tikoian stated that the staff reports are prepared by an engineer and biologist and are in the file. Mr. Crocker felt the buffer zone was not adequately protected and felt the line of trees along the property were not sufficient to protect the area. Mr. Crocker said the abutter’s property is 8’ from the boundary line and this would diminish their enjoyment of the area. Ms. Sherman gave the council a closing argument on the application. Ms. Sherman explained that there was expert evidence on file by the CRMC staff and their biologist Mr. Rabideau. She said they were putting 25 feet of buffer where there is none and there was no staff objection to the application. Ms. Sherman also stated that they had received affidavits of support from residents in this area in support of the proposal. Ms. Sherman requested CRMC approval of the application. Mr. Ricci was concerned with the statement by the objector’s attorney that he was not allowed to present evidence. Mr. Ricci felt that this was not correct and the minutes of the last meeting stated that the matter was continued to address one issue, the issue of the quite title lawsuit action. Mr. Ricci felt there was adequate notice given to the objectors to file any reports. Vice Chair Lemont, seconded by Mr. Ehrhardt moved approval of the application with all staff stipulations. The motion was carried on a unanimous voice vote.

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

2004-02-055 RAY MANIERRE – Construct and maintain a residential boating facility on AP 89-3, Lot 56, South Kingstown, A lot which does not contain a residence. The proposed facility is to consist of a 4’ wide ramp and fixed pier which is to extend 31 +/- feet seaward of the cited Meal Low Water mark. Located at plat 89-3, lot 56; Twin Peninsula Avenue, South Kingstown, RI.

Ray Manierre, the applicant was present. Wesley Grant, the applicant’s engineer was also 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 residential boating facility on a “so-called” dock lot on Green Hill Pond. Mr. Anderson said staff raised the issue that the lot was not contiguous to a residence and recommended denial of the application. Chair Tikoian asked staff to elaborate on the size of the lots and the residence distance. Mr. Anderson explained that there are 3 or 4 pre-existing lots in this area that are grandfathered. He said the application was for a new lot, which is 100 s.f. Mr. Anderson said the owner of this lot owns a house some distance away from this lot. Mr. Anderson stated that a residential boating facility needed to be contiguous to a residence and if the residence was not contiguous this was prohibited. Mr. Anderson felt that if the application was approved it could have a commutative impact in this area. Mr. Manierre stated that when he purchased the property he purchased it as a dock lot to put a small dock on. Mr. Manierre said the deed of taxes says this is a dock lot. Mr. Sahagian explained that years ago in 1940 subdivisions showed dock lots away from residences. Chair Tikoian stated that the house lot is not touching this lot and is a distance away. Mr. Manierre replied yes. Mr. Sahagian asked how far from this lot the house was. Mr. Manierre responded about an 1/8 of a mile away. Mr. Sahagian stated that there is no way to merge these lots as they are too far away. Mr. Sahagian felt he could not support this. Chair Tikoian asked if the applicant understood the Section 300.4 rule. Mr. Manierre replied no. Mr. Fugate explained the contiguous rule. Mr. Fugate explained that a residence has to be attached or adjacent to the lot that the dock would be on. Mr. Fugate stated when a residence is not attached to a dock lot it creates a problem because the docks are not maintained or monitored. Mr. Fugate said unless a dock lot is contiguous to a house lot or across the street and can be linked by a deed it is not considered contiguous. He said this lot does not meet this regulation. Chair Tikoian asked if the applicant met with staff to discuss the application. Mr. Manierre replied no. Mr. Grant said he was taken back by this and felt the council had approved non-contiguous docks in the past. Chair Tikoian noted that these lots had been grandfathered in. Mr. Fugate said lots directly across the street are considered contiguous but not lots diagonally adjacent. Mr. Grant requested that the application be continued so they could retain legal counsel. Mr. Sahagian stated that the application would require a special exception and the applicant could not meet the requirements for a special exception. Vice Chair Lemont, seconded by Mr. Coia moved denial of the application without prejudice. Mr. Paolino stated that there are other docks in this area along the shore. Mr. Fugate explained that these lots had been grandfathered during a certain window period designated by the General Assembly. Mr. Paolino wanted to know what harm there would be if this dock was granted. Chair Tikoian responded that there would be a commutative impact on the cove. Mr. Paolino felt the applicant had a right to use their property and noted that there had been no objections to the application. Chair Tikoian stated that the applicant had to right to use his property but not for a dock. Mr. Gray stated that they could launch a boat and use the area as access to the water. Mr. Paolino wanted to know why they could not approve the dock. Mr. Sahagian stated that it would set a precedent if the application was approved. Chair Tikoian noted that this was the rule. Mr. Sahagian noted that the application would require a special exception for a public use and this application did not meet the requirements for a special exception. The motion carried. Mr. Paolino was opposed.

9. Public Hearing on Changes to the Rhode Island Coastal Resources Management Program:

Coastal Resources Management Program
Section 120. Variances

Chair Tikoian opened the public hearing. Chair Tikoian noted that this was rule change on the variance criteria. Mr. Fugate explained that this change deals with subdivisions and whether the act of a creating a subdivision causes a hardship. Mr. Fugate stated that this applied to a subdivision 5 lots or less. Mr. Vincent asked what the rationale of this was. Chair Tikoian explained that if someone purchased a 4-acre parcel of land there are certain buffer requirements. Chair Tikoian stated that if there was a subdivision by the town of 1 acre into 2 lots or 2 acres into 2 lots there are different buffer criteria’s to meet. Chair Tikoian stated that staff felt the 4-acre buffer criteria applied not the subdivision lot size. Chair Tikoian noted that this change would balance the rule if this situation arises. Mr. Vincent asked when a subdivision is created does CRMC see it at that point. Mr. Fugate replied no only subdivisions with 6 or more lots and this rule applies to subdivisions of 5 lots or less. Chair Tikoian stated that this would allow them to grant variances and review them on a case by case basis. Chair Tikoian called for public comment. Joseph DeAngelis felt the concept of prior action is part of the zoning process. He said if you created your own hardship you could not get variance. Mr. DeAngelis applauded the council for addressing this issue but felt it did not go far enough. There was no further public comment. Chair Tikoian closed the public hearing. Mr. Ehrhardt, seconded by Vice Chair Lemont moved approved of the proposed change to Section 120. Variances as present. The motion was carried on a unanimous voice vote.

10. Enforcement Report – June, 2004

There were none held.

11. Cagtegory “A” List

There were none held.

There being no further business before the council the meeting, the council adjourned at 7:51 p.m.

Respectfully submitted,

Grover Fugate
Executive Director CRMC

Reported by Lori A. Field

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