In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, November 22, 2005 at 6:00 PM at the Narragansett Bay Commission Boardroom – One Service Road, Providence, RI.

MEMBERS

Mike Tikoian, Chair
Paul Lemont, Vice Chair
Ray Coia
Jerry Sahagian
Joe Shekarchi
Jerry Zarrella
Neill Gray
Dave Abedon
Bob Ballou

STAFF PRESENT

Grover Fugate, CRMC Executive Director
David Reis, CRMC Environmental Scientist
Brian Goldman, Legal Counsel

 

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

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

Vice Chair Lemont, seconded by Mr. Coia moved approval of the October 25, 2005 minutes.  The motion was carried on a unanimous voice vote.

2. STAFF REPORTS

Mr. Fugate announced that there was a notice of continuation of the regulation changes for the portion of regulations that dealt with affordable housing that went out to public notice and they would be continued to the next meeting. 

Mr. Fugate stated that a large number of public comments were received on the Marine Resources Development Plan.  Mr. Fugate said based on the volume of comments received recommended that this program change be moved to the January meeting so that they are able to look at and address the public comments fully. 

Mr. Fugate announced that the Council completed its 312 evaluation by the Federal Government last week.  Mr. Fugate said the Federal Government would develop a report and a series of recommendations.  He said the recommendations usually carry two formats, one is the necessary actions with the program that have to be untaken by the next evaluation or they would face sanctions and the other form of recommendations is merely program suggestions but if the program suggestions are not attended to by the next evaluation they may rise to the level of necessary action, if no action is taken.  Mr. Fugate said all in all the evaluation went well.

Mr. Fugate announced that Jim Boyd has joined the CRMC staff again and would be responsible for implementing both the Providence Harbor SAM Plan and the Greenwich Bay SAM Plan.   Chair Tikoian welcomed Mr. Boyd back and said the council looked forward to working with him again.               

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

4. CONTINUANCES:

2005-08-074  JOSEPH WEIN & AMANDA RUBIO – Construct and maintain a residential boating facility consisting of a 4’ x 100’ fixed timber pier, a 3’ x 25’ ramp, and a 10’ x 16’ (144 SF) float.  Also a boat and float lift will be installed.  A variance to RICRMP 300.4.E.3.(k) is required (proposed length is 75’ beyond Mean Low Water, standard is 50’).  Located at Plat 16, Lot 168, 169; 20 Browell Street, Warren, Rhode Island.             

The applicants were not present.  Chair Tikoian stated that they received a letter requesting a continuance as one of the applicants’ children had been hospitalized.  Chair Tikoian continued the application. 

5. APPLICATION REQUESTING A MODIFICATION OF EXISTING CRMC ASSENT BEFORE THE COUNCIL FOR DECISION:

2005-04-130 ANTONIO & MARGUERITE SALVATORE, SR. – Construct 41 linear feet of stone seawall.  Located at Plat N-G, Lot 10, 8, 9; 122 North River Drive, Narragansett, RI.

Antonio Salvatore, the applicant was present.  Herb Sirois, the applicants’ engineer was also present on behalf of the applicants.  Mr. Reis gave council members a brief summary on the application.  Mr. Reis stated that the application was to construct 41 l.f. of a stone revetment along the shoreline where there was evidence of erosion on the Narrow River.  Mr. Reis stated that staff recommended approval of the application.  Mr. Sahagian noted that he was very familiar with this site.  Mr. Sahagian, seconded by Mr. Coia moved approval of the application with all staff stipulations.  The motion was carried on a unanimous voice vote.    

1990-06—101  JANICE MATTHEWS – Modification of existing assent to demo and reconstruct a single family dwelling; will be serviced by existing ISDS.  Located at Plat 7, Lot 36; 5 Decatur Avenue, Jamestown, Rhode Island.

Janice Matthews, the applicant was present.  Jeffrey Brenner, attorney for the objectors and Jean Barrett, a neighbor and objector were also present.  Mr. Reis gave council members a brief summary on the application.  Mr. Reis stated that the application was to modify an existing assent that goes back some time.  Mr. Reis noted that this was a 1990 application.  Mr. Reis stated that the staff had worked with the applicant to try to bring the project into compliance with the prior assent and based on the modifications that they made that staff concluded that the application is consistent with the prior approval and recommended approval of the application for modification.  Mr. Fugate added that there had been some correspondence received that was contained within the packet between the objectors and himself.  Mr. Fugate said when staff was originally reviewing the application, he had indicated to the objector that the staff had reviewed and rejected an application that was significantly larger both in footprint of disturbance and the structure.  Mr. Fugate said staff had denied both modifications of the application as they did not met the criteria for a modification.  Mr. Fugate stated that the objectors felt this was a new Category A application.  Mr. Fugate explained whether this was a Category A or a modification of the assent the staff review would have been the same.  Mr. Brenner stated that as they reviewed the minutes of August 23rd and Mr. Fugate’s letter dated August 3rd which stated that the council can only grant projects which are equal to or less than the current approval.  Mr. Brenner noted that on the 2nd page of Mr. Fugate’s letter stated that the project was larger than the previously granted assent and the request for the modification would be rejected and a larger project could be approved through a new assent submission.   Mr. Brenner stated that at the August 23rd meeting  Mr. Gray said an extension allows the applicant to go forward on the 2,800-foot footprint and if she wanted more she would have to come back before the council with a completely new application.  Mr. Brenner said the point he was trying to make while the standard might be the same as he read the council’s modification statue it stated that the standards look at the overall impact of the State’s coastal resources and whether this would be less than or equal to the existing assent.  Mr. Brenner was also concerned with the notification on the application and felt there was a short time between when the application for the modification was filed and the abutters and  objectors are notified.  Mr. Brenner said this does not give people who are objecting to an application time to review the application and get experts to testify.  Mr. Brenner felt this was a procedural problem with requests for modifications of assents.  Chair Tikoian stated that Mr. Brenner raised two issues, Mr. Fugate’s letter and one on the rules.  Chair Tikoian asked Mr. Goldman to address the section in the rules.  Mr. Goldman explained that under the management procedures, Section 8.3 allows the Executive Director, without coming back before the Council can modify an assent if he is satisfied that the overall impact would be less than or equal to the existing assent.  Mr. Goldman said if in the Executive Director’s opinion the it has a larger impact the application would come back before the council, if not the Executive Director could grant an administrative modification of the assent without a public hearing.  Mr. Goldman said the council could modify its actions at any time.  Mr. Brenner felt this might be a gray area in the regulation.  Mr. Brenner felt they were short tracking the application that had changed significantly. Mr. Fugate explained that when they look at a project, whether it is larger does not just mean the dimensional structure but also the impacts and the envelope of disturbance to the site.  Mr. Fugate said staff  review of the application would have been the same whether it was a new Category A application or a modification of the assent.  Mr. Shekarchi said the application followed the same review path as a Category A or a modification.  Mr. Fugate replied yes. Mr. Shekarchi asked if the staff recommendation would be the same on either path of review.  Mr. Fugate replied the recommendations would have been the same on either path.  Mr. Brenner did not disagree with Mr. Fugate but was concerned with the track for neighbors, who might object or may not object and felt this was a short track and did not allow them time to review the application and prejudiced his client.  Mr. Reis clarified that the last time this application was before the council, the neighbors and objectors had an opportunity to speak but did not.  Mr. Reis said they indicated that they had been meeting with the applicant and informed them that they need to meet the buffer and setbacks which had been approved in the prior application.  Mr. Reis said the structure was closer to the buffer and did not meet the setback.  Mr. Reis stated that the applicant made a series of modifications to the plan and they reflagged the coastal feature to make sure there had been no erosion during this time period.  Mr. Reis said based on staff review of the application they recommended approval of the application.  Mr. Brenner felt the application required a new assent.  Chair Tikoian asked if he planned to put on expert witnesses tonight.  Mr. Brenner replied no but he might have if they had a chance to get expert testimony.  Chair Tikoian recommended putting the application off for 30 days to give all parties a chance to review the file and they can present what they want to present.  Mr. Shekarchi asked how Mr. Brenner felt his clients were being prejudice as they were present at the August meeting and it was not a surprise then.  Mr. Brenner replied that no one knew that it was going to be heard at a November meeting.  Mr. Brenner replied that his clients, the Atttiways did not receive formal notice of the hearing but heard about it from a neighbor.  Mr. Brenner felt there was not enough time to review and analyze what was essentially a new application.  Ms. Barrett, an objector, representing her parents, the abutters wanted to address the issue of public notice.  Ms. Barrett said she came from LA to attend this meeting after seeing it on the CRMC website.  Ms. Barrett stated that when she called CRMC to get confirmation of the meeting was told that the hearing was still tentative.  Ms. Barrett did not feel this was public notice.  Mr. Goldman replied that this was public notice.  Mr. Sahagian suggested instead of postponing the meeting 30 days that they continue it to the next meeting.  Chair Tikoian said we could do that but wanted to give all parties an opportunity to review the application.  Mr. Zarrella noted that this application was before the council in August and now it’s November.  Mr. Zarrella felt that if an objector was going to object to an application that they should be prepared to move forward.  Mr. Zarrella said he was ready to hear  the application tonight.  Ms. Barrett stated that after reading Mr. Fugate’s letter which stated that the applicant’s project was larger and she would have to get a new assent they thought the matter was closed and the applicant would have to come before the full council.  Vice Chair Lemont, seconded by Mr. Gray moved to continue the application for a minimum of 30 days.  Chair Tikoian called for a roll call vote on the motion.

On the motion to continue the application.

Mr. Gray Yes
Mr. Shekarchi No
Mr. Ballou Yes
Mr. Coia No
Mr. Abedon Yes
Vice Chair Lemont Yes
Mr. Zarrella No
Chair Tikoian Yes
Mr. Sahagian No

5  Affirmative
4  Negative
0  Absentation

The motion carried. 

6. PUBLIC HEARING ON CHANGES TO THE RHODE ISLAND COASTAL RESOURCES MANAGEMENT PROCEDURES:

Chair Tikoian opened the public hearing.   Mr. Fugate explained the program changes.  Mr. Fugate stated that this was a regulation change that has been opened up to the freshwater wetland in the vicinity of the coast.  Mr. Fugate noted that they had received public comment from the Conservation Law Foundation and Save the Bay as well as comments from DEM and the Rhode Island Boaters Association.  Mr. Fugate said they were able to address the latter two but that they had just received comments tonight from the Conservation Law Foundation and Save the Bay.  Mr. Fugate suggested that the council open the public hearing, take in the public comments regarding these regulations and then close the public hearing and then staff can go back and analyze the comments and provide the Council with a response to those comments and make recommendations as to whether there should be changes or not to the regulations.  

Public Comment.

Cynthia Giles, Conservation Law Foundation, stated that they are in favor of the improved projections for freshwater wetland that  are outlined and agreed that freshwater wetland protection is critical to the state.  Ms. Giles said they have three problems with the proposed regulations – first the policy section.  Ms. Giles stated that the purpose stated there should be protection of the freshwater wetland under the jurisdiction of CRMC and they believe some of the language included suggested that some wetland should be protected over others by reference.  Ms. Giles said they have proposed language in their written comments to address this.  Chair Tikoian noted that this was the same language as in the DEM freshwater wetland regulations and asked if they were going to object to DEM’s regulations. Ms. Giles said she was talking about the proposed regulations.  Chair Tikoian stated that these regulations are mirrored by DEM regulations, the specific words she had indicated.  Ms. Giles replied that they are commenting on the proposed regulations.  Chair Tikoian wanted to make sure we were on the same page.  Ms. Giles addressed the issue regarding access to buildable land and the limited provision for filling wetlands.  Ms. Giles felt this was not clear and suggested some additional language that emphases that policy.  Ms. Giles third point referred to Section F2 in reference to priority uses with regard to freshwater wetlands which was not in the DEM regulations and exempted prior wetlands.  Ms. Giles felt this had potential to weaken the protection of freshwater wetlands.  Ms. Giles felt this section should be stricken so there is not an implication that freshwater wetlands can be filled if they are in the vicinity of priority uses.   Eugenia Marks, Audobon Society, submitted copies of her comments regarding the proposed program changes to the council.  Ms. Marks stated that they are looking to protect the biological, physical and chemical integrity of the waters and habitat and looking for clear, direct language in these regulations.  Ms. Marks understood that these freshwater wetland regulations work with DEM regulations.  Ms. Marks questioned the use of tributary wetlands under the definition section and whether this added confusion and why it was necessary beyond streams and rivers that interface between freshwater and estuarine or marine waters..  Ms. Marks suggested some language could be added that would clarify those kinds of hydrologic connections.  Ms. Marks referred to a section on determining the authority of a wetlands in the vicinity of the coast and felt there needed to be delineation of CRMC authority somewhere in the text.  Ms. Marks also objected to the DEM 50’ from a vernal pool as she felt it was insufficient to protect wildlife from mitigating far beyond their 50‘ terrestrial habitat to their breeding habitat in the water.  Ms. Marks felt it would be useful to emphasize the benefit to the vegetation in flood control so that people understand that clearing the land is an issues in protecting the nearby wetland.  Ms. Marks stated that under the policy section the word “precise” edge of a wetland should be set as a standard to the wetland edge.  Mr. Zarrella stated that if the council adopted her changes and the lot was an unbuildable lot that they would be taking away the owners right to use thier land and they would still have to pay taxes on a non-buildable lot.  Wendy Wallor, Save the Bay, acknowledged the council’s intent to strengthen the freshwater wetlands protection.  Ms. Wallor stated that Save the Bay had submitted written comments which were in line with the Conservation Law Foundation’s comments.  Ms. Wallor wanted the council to omit the provision that defined freshwater wetlands by water types.  Chair Tikoian replied that the freshwater wetland regulations are not governed by water type.  Mr. Fugate responded that there was a reference to it in terms of prior use.  Mr. Reis explained that basically Section 210.2 of the coastal wetlands sections as opposed to the freshwater wetland sections allows for alterations of a coastal wetland bordering certain water types for designated priority used provided they meet all of the criteria for evaluating projects.  Mr. Reis said all they were saying was that they were deferring back to the existing section in the CRMC rules that do allow for potentional alteration to those wetlands for designated priority uses.  Mr. Reis said these rules are saying that certain things are outright prohibited and they were strengthening the existing rules.  Mr. Reis stated that staff would like the opportunity to review some of the comments made and felt some of the comments were really good and there were misunderstandings on other things that needed to be clarified.  Chair Tikoian called for public comment.  There was none.  Chair Tikoian closed the public hearing.  Chair Tikoian continued the hearing to allow staff to review the comments received and come back to the council with their recommendations.                                                       

Chair Tikoian opened the public hearing.  Mr. Fugate gave council members a brief summary on the proposed program changes.  Mr. Fugate stated that there were no objections received on this proposed change other than some suggestions by the Rhode Island Boaters Association.   Mr. Fugate said the suggested change would be in some cases of barrier islands and spits that do not have dunes associated with them.  Mr. Fugate said for the purposes of measuring setbacks all features shall be the coastal beach, dike or revetment, whichever was a greater setback.  Mr. Fugate stated that this would give staff and the applicant guidance when measuring setbacks.  Mr. Gray asked if a beach dike or revetment was part of this because his stops at the beach.  Mr. Fugate replied yes, they would add in dike and redevelopment whichever was the greater setback.  Chair Tikoian called for public comment.  There was none.  Chair Tikoian closed the public hearing.  Vice Chair Lemont, seconded by Mr. Gray moved approval of the proposed changes to Section 210.2 – Barrier Islands and Spits.  Mr. Zarrella and Mr. Shekarchi were opposed.  The motion carried.    

7. Enforcement Report – October, 2005

There were none held.

8. Category “A” List

There were none held.

 

There being no further business before the council the meeting, the council adjourned at 6:47 p.m.  

Respectfully submitted,

Grover Fugate

Executive Director CRMC

Reported by Lori A. Field

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