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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, February 28, 2006 at 6:00 PM at the Narragansett
Town Hall – Council Chambers – 25 Fifth Avenue - Narragansett, RI.

MEMBERS
Mike Tikoian, Chair
Paul Lemont, Vice Chair
Jerry Sahagian
Jerry Zarrella
Ray Coia
Tom Ricci
Neill Gray
Dave Abedon
Michael Sullivan
Joe Shekarchi

STAFF PRESENT
Grover Fugate, CRMC Executive Director
Jeff Willis, CRMC Deputy Director
Ken Anderson, CRMC Senior Engineer
Amy Silva, CRMC Environmental Scientist
Dan Goulet, CRMC Dredging Coordinator
Laura Ricketson, CRMC Public Educator & Information Coordinator
Brian Kavanagh, CRMC Staff
Ryan Moore, CRMC Staff
Michael Rubin, Special Assistant Attorney General, Legal Counsel
Brian Goldman, Legal Counsel
John Longo, Assistant Legal Counsel

 

1. Chair Tikoian called the meeting to order at 6:00 P.M. Chair Tikoian introduced the members of the council.

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

Mr. Coia, seconded by Mr. Zarrella moved approval of the February 14, 2006 minutes as amended. The motion was carried on a unanimous voice vote.

2. STAFF REPORTS

There were no staff reports.

3. SUBCOMMITTEE REPORTS

There were no subcommittee reports.

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

5. APPLICATIONS REQUESTING EXTENSIONS OF EXISTING ASSENT:

2000-09-038 COSMO HARALAMBIDIS & DESPINA STEFANOPOULOS – Extension of existing permit to build dwelling and ISDS. Located at plat 19, lot 76; Cottrell Road, North Kingstown, RI.

Mrs. Haralambidis, the applicant's wife was present on behalf of her husband. Mr. Fugate stated that the applicants had been granted a one-year administrative extension and this was their first council extension request. Mr. Fugate stated that the application had been checked out by the enforcement staff and that there was no enforcement action on any of the application. Mr. Fugate also stated that there had been no regulation changes that would effect the application. Mr. Zarrella, seconded by Mr. Coia moved approval of a one-year extension of the assent. The motion was carried on a unanimous voice vote.

2005-09-125 MOTIVA ENTERPRISES -- Install and maintain two (2) new breasting dolphins, and four (4) new mooring dolphins (monopiles), per plans. Located at plat 55, lots 17 & 18; 520 Allens Avenue; Providence, RI.

Chris Hogan of Motiva Enterprises, the applicant was present. Mr. Fugate stated that the applicant had been granted a one-year administrative extension and this was their first council extension request. Mr. Fugate stated that the application had been checked out by the enforcement staff and that there was no enforcement action on any of the application. Mr. Fugate also stated that there had been no regulation changes that would effect the application. Mr. Zarrella, seconded by Mr. Coia and Mr. Sahagian moved approval of a one-year extension of the assent. The motion was carried on a unanimous voice vote.

6. APPLICATIONS WHICH HAVE HAD A PUBLIC HEARING AND ARE BEFORE THE FULL COUNCIL FOR FINAL DECISION:

2003-05-155 CHAMPLIN'S REALTY ASSOCIATES and TOWN OF NEW SHOREHAM – Expansion of existing marina facility consisting of an additional 2,990 linear feet of fixed pier, and 755 linear feet of floating docks, with corresponding expansion of existing marina perimeter limit (area) by approximately 4 acres, however, it should be noted that the requested marina perimeter limit ("MPL") sought approximately 13 acres. The stated increase in marina capacity is 140 boats. Additionally, this matter was consolidated with the Town of New Shoreham's request for CRMC approval of its Harbor Management Plan. The Harbor Management Plan issues were limited to the location and size of Mooring Field E. Project to be located at Plat 19; Lots 5 and 6; West Shore Road, New Shoreham, RI. The proposal was modified by CRMC Subcommittee Recommendation.

Robert Goldberg, attorney for the applicant was present. Attorneys Tom DiPrete and Kathy Monahan were also present on behalf of the applicant. Daniel Prentiss, attorney for the Committee for the Great Salt Pond; Joseph Priestly, attorney for the Block Island Land Trust and Block Island Conservancy; Joseph D'Ovidio, attorney for the Conservation Law Foundation and Donald Packer, attorney for the Town of New Shoreham, the objectors were also present.

Chair Tikoian stated that there was a Motion for Recusal filed requesting that he and Mr.Abedon recuse themselves from voting on this application. Chair Tikoian turned themeeting over to Vice Chair Lemont on the Motion for Recusal. Michael Rubin, SpecialAssistant Attorney General was present on behalf of the Chair. Vice Chair Lemontasked legal counsel to brief council members on this motion. Mr. Goldman explainedafter the October 24th workshop on the Champlin’s Marina application, the applicant’sattorney filed a motion requesting that the Chair and Mr. Abedon recuse themselvesfrom voting on this application because of their statements made in the Block IslandTimes and The Providence Journal. Mr. Goldman stated that an ex-parte motion wasfiled for the depositions of Peter Lord (Providence Journal) , Peter Vascamp (BlockIsland Times), Chair Tikoian and Mr. Abedon. Mr. Goldman said he moved to quash thesubpoenas of Chair Tikoian and Mr. Abedon and that the Superior Court agreed. Mr.Goldman stated they need to have a public hearing on the motion to recuse and allowChamplin's attorney and the objectors’ attorneys ask questions of Chair Tikoian and Mr.Abedon. Mr. Goldman said the decision to recuse themselves from the applicationwould be up to Chair Tikoian and Mr. Abedon not the council. Mr. Goldman markedPeter Lords’ depo, Peter Vascamp’s depo and Mr. Summer’s affidavit as exhibits. ViceChair Lemont asked if there was a limitation on the questions and the scope of thequestions. Mr. Goldman replied that the Court said Champlin's has the to opportunity toask on record the question as to bias, prejudice or pre-determination concerning theirdecision the Champlin’s Marina application and it was up to them whether they chooseto answer the question and whether to recuse themselves. Vice Chair Lemont asked ifthe Chair wished to make a statement. Chair Tikoian stated that he read the motion torecuse himself, the memorandums in favor of his recusal and opposed to his recusal, hehas also read the depositions of Peter Lord and Peter Vascamp and the affidavit ofAttorney Daniel Summer. Chair Tikoian read a statement of facts. Chair Tikoianaddressed the statement that he made to Peter Lord of the Providence Journal that hewas disappointed with the Champlin’s subcommittee. Chair Tikoian stated that this wasbased on the majority of the subcommittee not considering his letter dated Feb. 23, 2003to the subcommittee which marked as an exhibit at the subcommittee proceedings.Chair Tikoian said his disappointment stemmed from the fact that the majority did notdiscuss a more efficient utilization of the existing marina perimeter, removal of theobstructions to provide for more efficient use of the water space or possiblereconfiguration of the existing marina rather than the proposed expansion. Chair Tikoianstated that his letter set out a number of items and this he did as an ex-officio member ofthe subcommittee and asked the subcommittee to consider these items. Chair Tikoiannoted that he had read all the transcripts of the subcommittee and reviewed all theexhibits. Chair Tikoian stated that he attended almost all of the subcommittee meetingsand workshops. Chair Tikoian stated that everything in his statement was derived fromthe administrative record before the subcommittee and he considered no other sourceother than what was before the subcommittee and on the record. He said his statementthat he was disappointed the deliberations of the subcommittee majority but that in noway indicated that he had made up his mind on the final disposition of this matter. ChairTikoian stated that he never indicated to Peter Lord what his final vote would be and atno point did he indicate that his mind was made up on this application. Chair Tikoianaddressed the statements in Atty. Sumner’s affidavit regarding the subcommittee actionwere essentially the same as those made to Peter Lord. Chair Tikoian addressed thestatement in Atty. Sumner’s affidavit that he was upset with Atty. Goldberg. He said hewas not happy that Mr. Goldberg had gone to court ex-parte to try to take his depositionand Mr. Abedon’s deposition without notice to CRMC legal counsel, Mr.Goldman, whilehe was court excused. Chair Tikoian said he did not say the council did not have thevotes to get this passed and he did not know how the council would vote. Chair Tikoian stated that no one outside of these proceedings tried to influence his vote on this matter.Mr. Goldberg wanted some documents marked as exhibits. Vice Chair Lemont askedhow this complied with the 5-day rule to the council. Mr. Goldberg felt it complied withthe court order. Mr. Goldman said there was no representation by Mr. Goldberg that hewould be introducing documents all they talked about was asking questions of ChairTikoian and Mr. Abedon. Mr. Goldman said they had met with Judge Fortunato inChambers and Mr. Goldberg said he would not introduce the recusal forms before thecouncil. Mr. Goldberg wanted them marked as identification and wanted to introducedocuments from LLC Corp, the engagement of Piccerelli & Goldstein, the firm that Mr.Tikoian is a partner and are doing work for Mr. DiPrete, who is part of the application and18 different recusal forms. Chair Tikoian noted upon learning of this, he said that nowork was done and no money exchanged and immediately canceled the contract withLLC Corp. Mr. Packer stated that he was a party to this as well and that he was entitledto these documents as well and he did not see them and was not privy to any of thesedocuments. Vice Chair Lemont sated that these were only marked as ID. Mr. Goldbergsaid it was not his intent that these be heard at the same time and requested that this bedone at a separate hearing and not tonight. Mr. Goldberg said a motion to recuse was adifficult motion for an attorney to present and that this was not done lightly and is only toprotect his clients rights. Mr. Goldberg said he had a lengthy conversation with KennethMcKay from the Governor’s office on Saturday afternoon and he told him that the Chairwent to the Governor’s office specifically to engage their aid in defeating this project.Atty. Rubin said the Chair could answer the questions as to going to the Governor’soffice but did not have to disclose the discussion of the meeting. Chair Tikoian repliedhe went to the Governor’ office. Mr. Goldberg asked if he discussed the Champlin’sapplication. Chair Tikoian replied yes. Mr. Goldberg asked if this meeting took placeover the summer while the hearings were pending. Chair Tikoian replied no. Mr.Goldberg asked if he discussed with Mr. McKay his position and view on the project.Chair Tikoian said this was incorrect. Mr. Goldberg asked if he sought the Governor’said to defeat this. Chair Tikoian replied no. Mr. Goldberg said Mr. McKay said he spoketo other council members on this and asked if he knew who those council memberswere. Chair Tikoian replied no. Mr. Goldberg said doesn’t he normally recuse himselffrom an application if he has done work for an attorney on an application. Chair Tikoianreplied yes. Mr. Goldberg asked if Piccerelli & Goldstein does work for LLC. ChairTikoian replied that he became aware of this at 4:30 p.m. today. Mr. Goldberg asked ifhe read the ethic rules on recusals when a business associate comes before the council.Chair Tikoian responded yes and said that his firm terminated and resigned from theLLC partnership today and stated that they did no work and no money was received andrequested that the letter be part of the record. Mr. Goldman marked this as part of therecord. Mr. Goldberg objected as this was not done in accordance with the 5-day rule.Mr. Rubin explained that Mr. Goldberg had his documents for more than 5 days and thatthis document was generated today and requested that it be marked as a full exhibit.Mr. Goldberg objected. Mr. Goldberg asked about the tax documents delivered to hisoffice over a month ago. Chair Tikoian replied that they resigned from that work and nowork had been done and the documents would be returned. Mr. Goldberg had nofurther questions. Attorney Rubin asked the Chair to ask the objectors whether theyobjected to Mr. Tikoian’s participating on the grounds of an alleged affiliation of his firmwith the Champlin’s application. Attorneys Packer, Prentiss, Priestly and D’Ovido hadno objection and waived their objection. Mr. Goldberg said there is an objectivestandard here and the newspaper said how Chair Tikoian was going to vote on thisapplication and this was not good for either side. Mr. Goldberg requested that ChairTikoian recuse himself in this matter. Mr. Prentiss felt there was no basis for a recusaland had no problem with the Chair participating on the application. Mr. Packer, Mr. Priestly and Mr. D’Ovido agreed. Chair Tikoian requested Atty. Rubin’s advice on thismatter. Mr. Rubin provided council members with a copy of the “Attorney General’sMemorandum Regarding the Questioning of CRMC Members: Members can only beasked about their Observations of Events and not Their Thoughts or Motives”. Mr.Rubin stated that council members are the decision makers on a panel. Mr. Rubinaddressed the issue of “extra judicial source” and said this was material that wasreceived from outside the record or proceedings and anything that they learned separateand apart from the hearings. Mr. Rubin said a disqualification was in order if informationwas received from an extra judicial source from outside the formal legal process. Mr.Rubin said if the decision is based on testimony and materials submitted there is noextra judicial source and there is no recusal needed. Mr. Rubin said on this basis it wasthe advice of the Attorney General that there was no extra judicial source in this case.Mr. Rubin said in viewing the facts that it was his advice that a recusal was not called forin this case. Chair Tikoian replied that he could make an unbiased decision on theapplication and he did not see a need to recuse himself. Vice Chair Lemont handed thegavel back to the Chair. Chair Tikoian addressed the motion for recusal of Mr. Abedonand asked if he wanted to make a statement. Mr. Abedon addressed a statement madeafter the October 24th subcommittee workshop, which he is not a member of thesubcommittee, he spoke generally and he did not say he was in favor or not of theapplication and whether a less intrusive structure would be better. Mr. Abedon said hehad not made up his mind as he had not read the entire record. Mr. Abedon said inorder to make a decision he would have to read all the transcripts and hear all thearguments, which he had not done at that time. Mr. Abedon said he had not made uphis mind as was stated in a Providence Journal article on October 25th. Mr. Abedonnoted that he addressed this at the November semi-monthly council meeting. Mr.Goldberg wanted to submit a copy of the Providence Journal article as an exhibit. Mr.Goldman replied that this was already on the record and marked as an exhibit. Mr.Goldberg asked if he read the paper today on how he was going to vote today. Mr.Rubin advised Mr. Abedon not to answer the questions on the grounds of form. Mr.Goldberg asked if he read today’s newspaper article. Mr. Abedon replied yes. Mr.Goldberg said the article stated that he would vote for a smaller project. Mr. Abedonreplied he did not recall that in the article. Mr. Goldberg rested. Mr. Prentiss said thequestion was whether or not a council member had made up their mind without readingthe record. Mr. Prentiss, Mr. Packer, Mr. Priestly and Mr. D’Ovidos had no objectionsMr. Rubin said based on facts as actually exist there was no firm determination made byMr. Abedon and his decision was made on the application. Mr. Rubin stated that theAttorney General recommended that no recusal was needed. Mr. Abedon stated that hecould make a fair and impartial decision on the application and did not see a reason torecuse himself and the motion is denied. Chair Tikoian thanked the Attorney Generaland Attorney General Rubin for their service and time they spent on this matter and theirdue diligence on this and the CRMC and state thank them for protecting the rights ofRhode Islanders. Chair Tikoian also thanked Mr. Goldman for his legal advice andprotecting the rights of the members of the council and appreciated his work.Chair Tikoian called for a recess at 6:48 p.m. Chair Tikoian called the meetingback to order at 6:52 pm.Chair Tikoian noted that this was a contested case. Chair Tikoian stated that asubcommittee had heard all the testimony and received evidence and made arecommendation to the full council. Chair Tikoian stated that only new evidence wouldbe accepted this evening and there would be a polling on the reading of the record forthe vote. Chair Tikoian explained the process the council would follow. Chair Tikoian stated that he would allow the applicants to speak for 20 minutes, the four objectors to speak for a total of 45 minutes, 5 minute rebuttal by the applicant and then open it up to council discussion with a limit a 5 minutes per council member and the council would make a decision to either adopt, deny or modify the findings of the subcommittee. Chair Tikoian called for a roll call vote on the reading of the record:

On the reading of the record.

Mr. Zarrella Yes
Director Sullivan Yes
Mr. Shekarchi Yes
Mr. Abedon Yes
Mr. Sahagian Yes
Mr. Ricci Yes
Mr. Coia Yes
Vice Chair Lemont Yes
Mr. Gray Yes
Chair Tikoian Yes

10 Affirmative 0 Negative 0 Absentation

Mr. Goldberg thanked the members of the subcommittee. Mr. Goldberg stated that hehad two arguments the project itself and the work and efforts put in by the subcommitteeand the standards to go by. Mr. Goldberg explained the process for the application. Mr.Goldberg felt the applicant met every test for development as proposed. Mr. Goldbergstated that the project was in type 3 waters where marinas are allowed and preferred.Mr. Goldberg said they were not asking for a change or reclassification of the water type.Mr. Goldberg said there was an issue raised regarding the public trust and felt thatmarinas were consistent with the public trust. Mr. Goldberg felt that the applicationmatched up to the regulations in Section 300.4.B.11 for marina expansions which was allin the subcommittee recommendation. Mr. Goldberg said the findings of fact aresupported in the record and evidence. Mr. Goldberg said there were no findings fromthe dissenter of the subcommittee just that he disagreed with the ultimaterecommendation and did not say he objected to the findings of fact. Mr. Goldberg saidthe dissenter stated that he had a sweet spot in his heart for this area and that the ViceChair did not disagree with the subcommittee findings. Mr. Goldberg said the objectorslisted a number of objectors but they did not testify. Mr. Goldberg felt the objectors didnot put credible evidence before the subcommittee. Mr. Goldberg said there was a hugeneed for marina space. Mr. Goldberg said the people who own property on the islanddid not want other people on the island. Mr. Goldberg stated that the water qualitycertification (WQC) was very difficult for DEM to issue. Mr. Goldberg noted that the townhas not applied for their WQC for their harbor management plan. Mr. Goldberg felt therewas nothing wrong with this marinas and noted that they were required to put in trashremoval for the entire pond, bathrooms, pumpout facilities and a launch boat. Mr.Goldberg thanked the subcommittee for their very hard work on this. Mr. Goldberg feltthe subcommittee recommendation should not be ignored and that the council look atthe merits of the application. Mr. Goldberg rested.

Objectors.

Daniel Prentiss, attorney for the Committee for the Great Salt Pond, thanked the subcommittee and full council for their work on this application. Mr. Prentiss stated that he was speaking against the subcommittee recommendation and felt the subcommittee recommendation did lip service to the WQC. Mr. Prentiss felt the DEM had to look at the water pollution impact. Mr. Prentiss felt CRMC was the guardian of public trust resources. Mr. Prentiss felt they would be allowing part of the public trust to be privatized by allowing the marina. Mr. Prentiss stated that DEM found the activity level could be increased by 1/3 without degrading the Salt Pond and this was based on thenumber of boats with a maximum capacity of 250 boats. He said this would allow 75boats to Champlin’s. Mr. Prentiss stated that the subcommittee recommended a 75%increase. Mr. Prentiss stated that the subcommittee report said the objectors failed toprovide a viable alternative and they felt they did this. Mr. Prentiss felt a 1/3 expansioncould be done without expansion of the marina. Mr. Prentiss felt the subcommitteeignored evidence that the expansion could be confined close to areas close to shore ifdredging were done. Joseph Priestly, attorney for the Block Island Land Trust andBlock Island Conservancy, felt the Salt Pond was a priceless natural resource and anychange of use on any part of the pond would impact the pond. Mr. Priestly felt thecouncil was poorly served by the subcommittee majority and felt the subcommitteerecommendation would worsen the pond. Mr. Priestly felt Champlin’s would influencethe activity in Salt Pond and impact the docks in this area. Mr. Priestly felt there wouldbe cumulative impact on the pond and that cumulative impact on the pond was notaddressed by the applicant. Mr. Priestly said 4 1/2 acres of the pond would be removedfrom use and felt CRMC must address the cumulative impact as the applicant had not.Mr. Priestly also felt there would be impact on navigation on the pond and that nonavigational path had been determined. Mr. Priestly requested that the council deny theproposed expansion. Christopher D’Ovidio, attorney for the Conservation LawFoundation, stated that the question was whether this expansion is consistent with thestate’s public trust doctrine. Mr. D’Ovidio felt Champlin’s operates in reverse of typicalmarinas, instead of providing public access to public trust waters it provides access toBlock Island for boats. Mr. D’Ovidio felt that if this was approved it would affect publicresources and have a significant impact on shellfish area. Mr. D’Ovidio felt theexpansion should be denied. Mr. D’Ovidio felt $50,000 fee proposed by thesubcommittee for the use of public trust waters wouldn’t even begin to repay the state.Donald Packer, attorney for the Town of New Shoreham, responded to a statement byMr. Goldberg that the objectors did not present all their witnesses. Mr. Packer felt it wasup to Mr. Goldberg to present his case and felt that they did not have to meet theapplicant’s burden. Mr. Packer stated that the town did not need a WQC for their harbormanagement plan and that there were no changes that would trigger a new WQC. Mr.Packer noted that they would not draw Mooring Field E on a perimeter line on the planand they could not accommodate the 100 moorings they are entitled to as this would cutinto the mooring field. Mr. Packer said that because of a legislative grant, the town ownsthe pond. Mr. Packer felt the riparian rights issues were not addressed by thesubcommittee. Mr. Packer stated that the expansion of the marina goes into the town’sproperty to the south. Mr. Packer felt the town’s riparian lines would be infringed upon.Mr. Packer said if the CRMC gives four acres to the applicant it is confiscation withoutcompensation. Mr. Packer felt the proposed $50,000 fee isn’t enough. Mr. Packerrequested that the council deny the application.

Rebuttal.

Mr. Goldberg felt that there was no rebuttal testimony by Mr. Packer that their riparianlines would be infringed. Mr. Goldberg said to use the area to the south they would haveto do 6’ of dredging and it would be less than what Champlin’s has now. Mr. Goldbergsuggested that it was the council’s job to follow the evidence and apply it to the rulesand regulations of the program. Mr. Goldberg felt the applicant met the CRMC rules andregulations. Mr. Goldberg requested that Rhode Islanders be allowed to go to BlockIsland. Mr. Goldberg requested the council’s approval of the application.

Chair Tikoian called for a recess at 7:55 p.m. Chair Tikoian called the meetingback to order at 8:05 p.m.

Chair Tikoian address the subcommittee report findings. Chair Tikoian addressedfinding #42 which stated that no reasonable alternative to the Champlin’s applicationwas made by the objectors. Chair Tikoian felt it was not up to the objectors to offer analternative that it was the applicant’s responsibility for this burden of proof. Mr. Coiaasked if he was saying this was not a factual statement. Chair Tikoian replied yes. Mr.Coia felt this was a factual statement and could stand on its own. Chair Tikoianaddressed findings 13, 15, 16 and 17 and said based on what he read felt the applicantdid not meet the burdens of Section 200.3.C.3. Chair Tikoian referred to his letter ofFeb. 23, 2003 to the Vice Chair regarding the current configuration of the marina andallowing better utilization of the water space. Chair Tikoian felt the subcommitteeaddressed the marina expansion and not the better utilization of the water space. ChairTikoian stated that these were his comments and felt that they were not addressed to hissatisfaction. Mr. Zarrella replied that these were the findings of fact that thesubcommittee found. Mr. Zarrella said he took an insult from Mr. Priestly that he did apoor job and felt that he did a good job and it should have not been on the table. Mr.Zarrella asked if the Chair could tear apart the findings of facts by the subcommittee.Mr. Gray said if he understood Mr. Zarrella correctly that he does not have to be heretonight. Mr. Gray felt the council and he were entitled to their opinions. Mr. Gray agreedwith finding #13 and felt there was an alternative within the existing facility and it couldhave been truly explored to see where they could better design the facility and get abetter use. Mr. Gray felt the applicant could have done a better job. Mr. Zarrella repliedthat they did look at going west but the cost of the dredging was around $1 millionaccording the applicant or $126,00 according to CRMC. Mr. Zarrella felt neither of thesefigures were correct. Mr. Zarrella stated that if the applicant went west they would notget the depth that they needed and they would not be able to keep their water qualitycertificate. Vice Chair Lemont stated that as Chair of the subcommittee he paid closeattention to all the evidence. Vice Chair Lemont said there was an issue of alternativesand there was an effort to discredit the alternative proposals and looking at them youcould see why they would not work. Vice Chair Lemont said there was the question ofwhether a marina could extend to the west at reasonable cost and not interfere with therest of the pond. Vice Chair Lemont felt the numbers for dredging by Mr. Goldberg wereoutrageous and the numbers by staff were reasonable much more acceptable. ViceChair Lemont said he recommended that the applicant expand to the west, dredge, therewas a place to take the spoils and the depth could have been increased. Vice ChairLemont said they could determine what was a better utilization of the pond and wouldnot interfere with other activities in the pond. Vice Chair Lemont stated that he did notagree with Mr. Zarrella on his position on this. Chair Tikoian referred to findings 29, 20and 31 and felt there was confusion in the transcript on the 100’ buffer in transcript #19.Chair Tikoian asked if there was a 100’ or 50’ minimum setback for moorings and what isthe regulation on separation of the moorings. Mr. Fugate replied that the regulationstates a minimum of 50’, which is the minimum the towns cannot exceed based on thenavigation in that area. Mr. Fugate said 50’ is the bare minimum allowed for separationdistance for navigation. Chair Tikoian referred to finding #32 regarding the 365’between the existing dock to the existing mooring or to the boundary of the mooringfield. Mr. Fugate replied to the actual mooring ball. Mr. Gray felt on the 365’ distance tothe buoy and not the mooring field line. Mr. Fugate replied that the mooring field is anestablished line permitted by the Army Corps. Mr. Gray said the CRMC regulationsrequire the town to keep their moorings and vessels attached to their moorings within thefield that is approved. Mr. Fugate replied yes, all the mooring tackle has to be within themooring field. Mr. Gray felt the 365’ distance was not correct. Mr. Gray stated that heasked staff to look at this and measure the distance. Mr. Gray said staff found that there was 340’ at the north end of the pier and 310’ at the south end of the pier between themooring field line and the dock. Mr. Gray felt that this needed to be re-addressed as thechannel would be narrow and there could be a congestion problem. Mr. Zarrella statedthat the 365’ was given by an expert witness and the testimony was not challenged. Mr.Gray felt the engineer’s information was from the dock to the buoy and not to the edge ofthe mooring field and it was the edge of the mooring field that we cannot go past. Mr.Zarrella replied that he did not think it was the buoy, he thought it was the mooring. Mr.Sahagian asked the Chair if they could revisit the plan. Chair Tikoian replied absolutely.Mr. Gray felt the council needed to agree on what this area was because they need toknow where they can go. Chair Tikoian asked staff to scale the distance from the dockto mooring field edge line on the plan. Mr. Anderson concurred with Mr. Gray that thereis 310’ to a maximum of 340’ distance. Mr. Sahagian said it was his recollection thatthey considered relocating some of the moorings in this area and that was how theycame up with the 365’. Mr. Zarrella also stated that testimony came in from theapplicant that he was going to have to relocate those moorings and the subcommitteefelt comfortable knowing that there were going to be some moorings and he based hisdecision on moving the moorings. Mr. Gray said he saw that the moorings were outsideof the mooring field that was actually in the channel, in what they now use as a channel.Mr. Gray asked if they were talking about taking the approved mooring line by the ArmyCorps and saying push it back another 55 feet. He said he did not see this in thedocument. Mr. Gray said what they are working with is that the line was not going toencroach any closer to the applicant and they were not going to expand or go towardsthe applicant. Mr. Abedon asked about Mooring Field E and wherever the perimeter thatthe Army Corps delineated and if the council could move that line. Mr. Gray replied thatyou can petition the Federal Government. Mr. Fugate replied that the Army Corps is aseparate permit. Mr. Fugate said the council can say we are going to move the mooringfield to this point and the Army Corps can say no your not. Mr. Abedon asked if it waswithin the council’s purview to do this. Mr. Fugate replied that the council does not havethe authority to tell the Army Corps what to do. Mr. Gray stated that the council neededto determine if it was 340’ to 310’ feet because the last thing the council wants to do ishave a narrow tight channel that big boats are going through then you will have a realcongestion problem. Mr. Zarrella said the whole subcommittee went out to the sight andthey knew where 240 feet was and knew where the mooring field was. Mr. Gray said hecould not process the 365 feet because it did not compute. Mr. Sahagian addressed thefigures of 310’ on one side and 340’ on the other side that Mr. Gray mentions. Mr.Sahagian said if you use these numbers and subtract 170’ expansion that thesubcommittee recommended and the 25’ perimeter that leaves 115’ which is 15’ morethan the Town of New Shoreham requires. Mr. Gray agreed that there was 115’distance left but said the council had to be careful because it was not just the buffer itwas also the channel. Mr. Gray was concerned with 165’ boats coming in the channeland the vessel taking up the channel and not leaving room for navigation. Mr. Gray hada concern with using the word “ensure” and ensuring that there would be no negativeimpacts in findings #26 and 28 and felt that the council could not guarantee this and feltthey should change it to “there shouldn’t be any negative impacts” . Mr. Gray addressedthe pump outs in finding #28 and felt that there should not just be pump outs but thatthere should be a plan for pump outs and felt that they should be promoted and theyshould have to create a plan with staff that shows they will promote their use so that weget good water quality. Mr. Zarrella stated that the subcommittee recommended thatthey put pump out at every slip. Mr. Gray stated that would be one pump out on the newdocks. Mr. Gray said that was good he wanted to make sure the pump outs werepromoted. Chair Tikoian address findings #19, 20, 21 and 22 which made references tolanguage in type 2 waters and type 3 waters and he felt in reading the transcript and the findings of fact, he got the impression that just because type 3 waters existed that youcan expand the marina period. Chair Tikoian asked about the percentage of usage forthe pond. Chair Tikoian asked Mr. Fugate how the council looked at type 3 waters andexpansion. Mr. Fugate replied in type 3 waters that moorings and marinas need tobalance the existing uses of the area. Mr. Fugate said you need to look at the publicentity rather than the two private entities. Mr. Abedon asked if he was saying that thepublic use sometimes comes before the private use. Mr. Fugate explained that bystatue when you look at the public trust doctrine and it comes down between private useand public use, the public use will always take precedent. Mr. Sahagian addressed theissues of percentages. Mr. Sahagian stated that right now there is 57 acres in the entirepond and 9% of the pond marinas are permitted. Mr. Sahagian stated that thisexpansion was adopted 22% of the 57 acres will be utilized for marinas, so it would beless than one quarter of what is zoned or classified for marinas. Mr. Sahagian felt thiswas a great balance of use of the pond. Chair Tikoian stated that it was not just marinasbut the mooring fields too. Mr. Sahagian stated that there were 194 acres of type 2waters where mooring fields are allowed. Mr. Ricci agreed with Mr. Sahagian regardingthe balancing issue and said he signed off on the findings of fact and felt thesubcommittee did this with finding of fact #16. Mr. Zarrella stated that they could haveeasily changed this by changing the water type so that they could not put in a marina butright now the regulations say you can have a marina. Mr. Sahagian stated that theChamplin’s application has been around since the fall of 2003 and that when the peopleof Block Island should have petitioned CRMC for a water classification change. Mr.Abedon addressed the balance issue and said marinas can expand in type 3 water butyou also have to balance off how well they’re utilizing the space so you can determinehow much they can expand or not. Mr. Ricci noted that the subcommitteerecommendation denied any expansion to the west. Mr. Ricci stated that in a perfectworld you could fit these boats in without any expansion. Mr. Ricci said they did look atother alternatives but some of them were laughable. Mr. Abedon said some of theexhibits showed the depths at low tide, they could not accommodate a 165’ boat butcould take certain size boats without dredging. Mr. Zarrella replied that they did look atthis but there were two big boulders or ledge out there that hindered the ability to comein this area. Mr. Abedon felt there was a way to have an expansion and be viable for adifferent clientele or different reason in a different area. Chair Tikoian stated that Mr.Goulet stated that the area could be dredge and they could move the boulders. ChairTikoian felt missing from the subcommittee’s recommendation was the cumulativeimpacts this would have to the area. Mr. Sahagian read finding #31 which stated thatthe subcommittee majority found that notwithstanding the arguments of the objectorsthat no expansion would be acceptable and that position was nullified when their ownexpert said that an expansion of approximately 200’ would be a viable plan.” ChairTikoian did not agree with finding #31. Mr. Gray asked if Mr. Sahagian was saying thatthe testimony of a witness that the 200’ expansion would be viable. Mr. Sahagianreplied that he dealt with the facts and the expert witness testimony that was presented.Mr. Sahagian stated that if the objector’s engineer indicated under oath that a 200-205’expansion was viable that he was comfortable supporting a 170’ expansion. Mr. Graysaid experts make mistakes. Mr. Zarrella stated that he had tried to ask questions fromday one of the subcommittee and he always wanted the parties to get together to comeup with a compromise and the subcommittee was trying to find out where there was acompromise or a common ground. Mr. Zarrella stated that Chairman Lemont had askedthe parties numerous times to get together and for one reason or another either groupthought they were winning and did not want to talk to the other group. Mr. Zarrella saidthey wanted these fellows to get together and walk out with a compromise. Mr. Graystated that the council has the responsibility to make sure that whatever compromise is made and they are going to support in the real world will work. Mr. Gray did not feel thata 200’ expansion would work because of the amount of space and also felt that the 365’figure had not been clarified. Chair Tikoian referred back to the Mr. Roberge’s testimonyregarding the 200’ expansion and the questioning of him of what would be viable and feltthat he would have answered a little bit differently if was working for the applicant than ifhe was working for himself. Chair Tikoian stated that Mr. Sahagian’s question askinghim if this was what he thought would be a viable alternative and the expert replied yes.Chair Tikoian felt that the expert was answering the question as if he were testifying forthe applicants. Mr. Sahagian replied that he followed upon that with a question on thebuffer and the expert replied that a 150’ buffer could coexist. Mr. Sahagian then askedthe expert if he were working for the applicant to come up with a viable plan would thatmake sense and the expert replied that was what he said. Chair Tikoian had no furtherquestion on the document at this time. Mr. Gray wanted to go back to the proper marinedesign and what you can do in this area. Mr. Gray stated that if there was 310’ with the35’ beam of a 165’ vessel that leaves you a 275’ channel which is 1.67 times the lengthof a 165 footer. Mr. Gray felt the area would be tight. Mr. Gray said there still under thetwo times rule. Mr. Gray said you need to look at and determine how much of anexpansion can physically fit. Mr. Gray had a major problem with the council trying toredesign the marina and approve something that was going to be squeezed into a tightarea. Mr. Zarrella stated that this was presuming that a 165’ vessel was going down thatchannel and not the main channel. Mr. Gray said it’s the main channel to get to thesefacilities. Mr. Zarrella did not feel that the applicant would put a 165’ boat on this slip.Mr. Gray said the only way around this would be to put a restriction on the facility on thesize of the boats, have a certain size channel and limit the size of the expansion. ChairTikoian asked council members for their comments on the report.

Mr. Zarrella wanted to explain the subcommittee report. Mr. Zarrella stated that whenthe Chair first put him on the subcommittee he thought it was going to be a real toughjob with the letters received and knowing the people on the island. Mr. Zarrella said theonly way out here for these folks is to compromise here and that can’t happen so helistened to the evidence, listened to the experts. Mr. Zarrella felt the objectors did aterrible job trying to come in with the Kookabaurra plan and insulting the subcommittee.Mr. Zarrella said Mr. Packer came in with a 100- plan from the Town and won him overbut then withdrew the plan. Mr. Zarrella said he had to go by the evidence and therewas no other plan in front of him and felt they should have put a plan in from thebeginning. Mr. Zarrella noted that the island has a tendency to say no and they don’tunderstand compromise. Mr. Zarrella said they oppose a project it gets denied and thepeople go to court and get larger projects than they originally applied for. Mr. Zarrellaaddressed Mr. Gray’s concerns about navigation and felt it was going to be okay tonavigate there and felt comfortable with this. Mr. Zarrella asked if Mr. Goldberg gotanything under 100’ would he take it to court. Mr. Goldberg replied in a minute. Mr.Zarrella asked if the objectors would appeal the application for a 100 feet. Mr. Prentissreplied that he could not answer without his client. Mr. Zarrella felt the council shouldbase their decision on the evidence of the application. Mr. Zarrella felt the town shouldbe ashamed of themselves for taking the 100’ plan away. Mr. Zarrella was in favor ofthe subcommittee recommendation. Mr. Sherkarchi had a question of Director Sullivanand asked what the process of the department was when they issue water qualities andhow in his mind, as director how signature is water quality. Director Sullivan replied thatthe water quality certification is based upon the written documents as submitted on theproposal submitted and is evaluated within the construction of the footprint and theestimation of impacts outside the footprint. Director Sullivan stated that if there were anymodifications to the application would have to come back to DEM for reconsideration of the water quality certification on the new plan or modification. Mr. Sahagian addressedsome of the comments made by the objector’s attorney, Mr. Prentiss indicating that thesubcommittee gave lip service to the water quality certificate and disagreed with him.Mr. Sahagian noted that Mr. Prentiss tried to get the meeting continued several timesbecause of the lack of a water quality certificate. Mr. Sahagian address Mr. Priestley’scomment that the subcommittee’s recommendation poorly served the full council andsaid the subcommittee could only go by the evidence and they did not offer any experttestimony concerning the water quality certification. Mr. Sahagain said Mr. D’Ovidiotalked about the public trust doctrine and said he failed to say that marinas areconsistent with the public trust doctrine and if this application was approved there is stillapproximately 598 acres where marinas will not be. Mr. Sahagian said Mr. Packer madesome comments regarding the water quality certification and that he tried to stop thehearing several times because the applicant did not have the water quality certification.Mr. Sahagian said the applicants provided expert testimony to affirm DEM’s water qualitycertification. Mr. Sahagian felt the application broke down to the biological andengineering evidence. Mr. Sahagian stated that the subcommittee recommended a 170’expansion, approximately 29 percent less. Mr. Sahagian stated that the applicant’sattorney put on expert testimony to back this up. Mr. Sahagian stated that he wascomfortable with the application the way the subcommittee recommended and urgedother council members to feel the same way. Mr. Coia said not having been a memberof the subcommittee, thanked Rebecca Forte, the council stenographer, for providinghim with over 3,000 pages of stenographic record in detail for all 23 hearings and theworkshops. Mr. Coia said without her, council members who were not a member of thesubcommittee would not have had an opportunity to review the stenographic record. Mr.Coia thanked Mr. Fugate and CRMC staff for compiling the record and getting it out tocouncil members in a timely manner. Mr. Coia thanked the subcommittee members fortheir time and dedication committed to this review. Mr. Coia commended the attorneyson both sides and felt that they did represent their clients zealously with the evidencethat was available to them. Mr. Coia stated that the subcommittee recommendation wasjust a recommendation and not a compulsory conclusion to which the full council isbound but he believed that after 23 hearings and the time spent that the council couldnot dismiss the time, efforts and deliberation of the subcommittee. Mr. Coia said hetakes each application on its face. Mr. Coia said after having reviewed all of theevidence, he felt confident with his decision and that it was fully supported by theevidence in the record. Mr. Gray echoed Mr. Coia eloquent thanks of everyone and saidthey did a great job. Mr. Gray felt the subcommittee put a lot of effort into thisapplication. Mr. Gray asked for clarification and asked if something gets approvedtonight that they were just approving the area and there are no plans. Mr. Fugate repliedcorrect. Mr. Gray asked if something got approved tonight, they would have to comeback before the council with plans. Mr. Fugate replied yes. Mr. Gray asked if DirectorSullivan would then have to re-access the plans to how it would have changed the waterquality certification. Director Sullivan noted that a water quality certification is basedupon a full and complete set of plans and if there were changes to the plan that it wouldhave to go back to DEM for reconsideration. Mr. Gray stated that he could not supportbased on his knowledge of what will be in place, the subcommittee recommendation asit stands. Mr. Ricci said to characterize this, as a difficult job was an understatement.Mr. Ricci said he was satisfied signing onto to this recommendation and thought theycame up with a recommendation that everyone could live with. Mr. Ricci said it wasclear from the beginning that not everyone would be happy. Mr. Ricci said he had noproblem signing on to the recommendation of the modification as outlined in thesubcommittee recommendation. Director Sullivan echoed the expressions ofappreciation of the staff involved. Director Sullivan also acknowledged the work of the people at DEM in the process of this application. Director Sullivan stated that he canagree with some of the finding of facts of the subcommittee but must disagree withothers. Director Sullivan stated that it was the responsibility of the council to protect thepublic trust and that the council is obligated to review the proposals on a case-by-casebasis and to examine any reasonable alternatives of a proposed activity. DirectorSullivan stated that he is struggling with the proposal in terms of the facility and had toask if it was consistent with the municipal harbor management programs. DirectorSullivan also said in his opinion the potential benefits associated with a proposed projectare small compared to the potential adverse impacts. Director Sullivan stated that hecould not support the subcommittee recommendation as he felt it would diminish thepublic resource. Mr. Abedon had some of the same concerns Mr. Gray had. Mr.Abedon felt you had to consider the existing uses of the public waterways so theexpansion into the fairway area is problematic for him. Mr. Abedon stated that he couldnot support the subcommittee recommendation. Vice Chair Lemont stated as Chairmanof the subcommittee he echoed the sentiments of everyone else for all the time, workand dedication on this application. Vice Chair Lemont stated that he really thought thatbased upon the evidence, based upon everything that you heard, based upon theislanders and people that they talked to, based upon the legal requirements to make adecision based upon the right thing to do. Vice Chair Lemont felt that the expansionbeing sought was not justified and that there were other ways of skinning the cat. ViceChair Lemont disagreed with Mr. Zarrella with regard to the issue of going west and saidit was his recommendation to the subcommittee that they go west and the area bedredged. Vice Chair Lemont stated that he supported a limited increase out into thepond based upon the evidence because he did not think that no increase is justified.Vice Chair Lemont said based on the hours and the testimony that he could not supportthe subcommittee or the full application. Chair Tikoian personally thanked Vice ChairLemont, Mr. Zarrella, Mr. Sahagian and Mr. Ricci for taking all the time that it had takento listen to all this testimony and the patience they had exercised with respect to thearguments and objections. Chair Tikoian also thanked the council members this eveningfor raising the issue, discussing issue and sticking to the facts. Chair Tikoian openedthe floor for any motions. Director Sullivan stated that if he understood the rules if thecouncil was to reject the application as submitted there was nothing in the rules thatwould not allow a revised application to come back before the council. Mr. Goldmanreplied that if the application were rejected in order for the application to come backbefore the council there would have to be a substantial change in circumstances and bea substantially different application. Director Sullivan, seconded by Mr. Gray moved toreject the application as submitted. Mr. Goldman asked as submitted or as thesubcommittee recommended. Director Sullivan replied the motion was to reject assubmitted and that this would reject the recommendation of the subcommittee. ChairTikoian replied that you could not do that. Mr. Goldman explained that the applicationsubmitted for the 240’ increase was what the subcommittee rejected. Mr. Gray withdrewhis second. Director Sullivan withdrew his motion. Director Sullivan, seconded by ViceChair Lemont moved to reject the application as submitted. Chair Tikoian said themotion on the floor was to deny the application as submitted. Mr. Goldman explained asthe application was submitted for the 240’ expansion. Mr. Abedon asked what this did tothe subcommittee recommendation. Chair Tikoian replied it was still on the floor. Mr.Zarrella said the motion was for the 240’ not the subcommittee recommendation. Therewas discussion on the motion and what happens to the subcommittee recommendation.Mr. Coia asked if you reject the original application, how do you reopen it for anothermotion. Mr. Zarrella felt that the as a member of the subcommittee that voted againstthe 240’ application. Chair Tikoian stated that it appears that the motion of the directoris relatively moot. Chair Tikoian stated that he would prefer to vote on the actual recommendation, make amendments or deny it. The previous motion was withdrawn.Mr. Zarrella asked what happens if there is a tie on the motion. Mr. Goldman replied thatif there was a tie, the motion fails and then the full council can modify the subcommitteerecommendation. Mr. Zarrella asked if another motion could be made for a smallerexpansion. Mr. Goldman replied yes, if there was a tie. Mr. Ricci, seconded by Mr.Gray moved approval of the subcommittee recommendation. Chair Tikoian stated thatthere was a motion to approve the subcommittee recommendation. Chair Tikoian calledfor a roll vote on the motion:

On the motion to approve the subcommittee recommendation:

Mr. Zarrella Yes
Director Sullivan No
Mr. Shekarchi Yes
Mr. Abedon No
Mr. Sahagian Yes
Mr. Ricci Yes
Mr. Coia Yes
Vice Chair Lemont No
Mr. Gray No
Chair Tikoian No

5 Affirmative 5 Negative 0 Absentation

The motion failed.

Chair Tikoian called for a motion to adjourn. Director Sullivan, seconded by Mr. Gray moved to reject the original application as submitted with the understanding that the parties could go back and renegotiate and come back with an application that has substantially change. Mr. Zarrella stated that he was one of four people that heard the application and the application for the 240’ was rejected. Mr. Zarrella stated that the 240’ was rejected once already and if there was a tie vote it would end up in court and the judge would have to decide. There was discussion on the motion. Mr. Shekarchi stated that he wanted to modify the subcommittee approval, reduce the length from 165’ to 150’. Mr. Gray withdrew his second. Director Sullivan suggested that they table the matter and allow the parties to work out a compromise. There was no second to the motion. Mr. Shekarchi, seconded by Mr. Coia moved to modify the subcommittee recommendation from 170’ to 150’ with the language change recommended by Mr. Gray for the word “ensure”. Mr. Abedon felt it was up to the applicant to design the marina not the council. Mr. Zarrella stated that Mr. Shekarchi is trying to reach a compromise to see if there is a common ground. Mr. Zarrella said the parties are incapable of compromise. Chair Tikoian stated that there was a motion to modify the subcommittee recommendation. Chair Tikoian called for a roll vote on the motion:

On the motion to modify the subcommittee recommendation:

Mr. Zarrella Yes
Director Sullivan No
Mr. Shekarchi Yes
Mr. Abedon No
Mr. Sahagian Yes
Mr. Ricci Yes
Mr. Coia Yes
Vice Chair Lemont No
Mr. Gray No
Chair Tikoian No

5 Affirmative 5 Negative 0 Absentation

The motion failed.

Mr. Sahagian moved to adjourn there was no second. Director Sullivan felt that you need an affirming action on the application. Chair Tikoian stated that it was denied. Director Sullivan, seconded by Mr. Shekarchi moved to table the application for 60 days. Chair Tikoian called for a roll call vote:

On the motion to table the application:

Mr. Zarrella Yes
Director Sullivan Yes
Mr. Shekarchi Yes
Mr. Abedon No
Mr. Sahagian Yes
Mr. Ricci No
Mr. Coia No
Vice Chair Lemont No
Mr. Gray Yes
Chair Tikoian No

5 Affirmative 5 Negative 0 Absentation

The motion failed.

Mr. Sahagian, seconded by Mr. Coia moved to adjourn. Director Sullivan was opposed. The motion carried.

7. Enforcement Report – January, 2006

There were none held.

8. Category "A" List

There were no Category A’s held.

There being no further business before the council the meeting, the council adjourned at 10:50 p.m.

Respectfully submitted,

Grover Fugate
Executive Director CRMC
Reported by Lori A. Field

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