In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, June 8, 2010 at 6:00 p.m. in Conference Room A, Administration Building, One Capitol Hill, Providence, RI.

Members Present
Michael M. Tikoian, Chair
Paul Lemont, Vice Chair
Raymond Coia
Bruce Dawson
Donald Gomez
Michael Sullivan, DEM
Robert Driscoll

Staff Present
Grover J. Fugate, Executive Director
Jeffrey M. Willis, Deputy Director
Jim Boyd, Coastal Policy Analyst
Brian Harrington, Sr. Environmental Scientist
Laura Miguel, Principal Environmental Scientist
Laura Ricketson Dwyer, Public Education/Outreach Coord
Brian Goldman, Legal Counsel

1. CALL TO ORDER

Chair Tikoian called the meeting to order at 6:00 p.m. dispensing with the opening statement.

Chair Tikoian thanked Council members for juggling schedules to be able to attend meeting.

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING:

May 27, 2010 meeting minutes held over to June 25, 2010.

3. SUBCOMMITTEE REPORTS

Nothing to report

4. STAFF REPORTS

Nothing to report 5. Update on Recent Events and Status of Filing leading to the Enforcement and Removal Order for unpermitted marina in tidal waters: 2007-0028 Harris Marina – located at Plat 999, lot 99; Rocky Hollow Road, East Greenwich, RI. Attorney Casby Harrison in attendance representing Ken Harris also in attendance.
Mr. Harrison was given a copy of Army Corps of Engineers (ACE) permit for the Anderson property that was part of record he had reviewed in Council offices on June 7, 2010. Mr. Harrison questioned Mr. Willis on where document was obtained and the reasons it was not in file when he reviewed it on June 7, 2010. Mr. Willis stated that CRMC staff did not realize that our copy of the ACE permit was not in the file and when it was

Mr. Goldman stated that an update to the Council on recent events that occurred during the interim between meetings was in order and Mr. Fugate, Mr. Willis and Mr. Harrington were sworn in. Mr. Fugate informed the Council that the Council had given Mr. Harris certain direction at their last meeting requiring Mr. Harris to pursue two documents which were absolutely key to the Council acting upon a submitted application. Mr. Fugate stated that one requirement was a legal agreement between Mr. Harris and the Town of East Greenwich so that he can use the land; and the second requirement was an Army Corps of Engineers (ACE) Grandfather permit. Mr. Fugate explained the ACE permitting scenario stating that when Mr. Harris attempted to obtain a grandfather permit from the Council, the ACE sent a letter stating that Mr. Harris did not meet the requirements for a grandfather permit given the information presented. Mr. Fugate explained the process by which Mr. Harris would have to go through in order to get a CRMC permit which would require a special exception. Mr. Willis stated that in the Council’s agenda package there was a copy of meeting minutes from the Town of East Greenwich stating that the Town will enter into such a lease but the lease has not come to us as of yet. Mr. Willis stated that Mr. Harrison had submitted application materials to the CRMC offices on behalf of Mr. Harris but that the application did not include some of the required documentation needed to review the application. Mr. Willis stated that a letter was sent to Mr. Harrison outlining the information required. Mr. Willis stated that staff is more than happy to sit down and try to work out the regulatory issues if the Council so chooses. Mr. Harrington stated that CRMC staff had received a complaint on May 24th that the floats had been installed at the Harris Marina which was confirmed by staff site visit on May 25, 2010. Mr. Harrington stated that a Cease and Desist Order and a Notice of Administrative Fine were issued on May 26, 2010. Mr. Harrington stated that a phone call was received by CRMC stating that the floats had been removed which staff confirmed by site visit on June 3, 2010. Mr. Harrington stated that Mr. Harris came to CRMC offices on June 3 and spoke to staff member Laura Miguel.

Mr. Harrison asked Mr. Goldman if he had a recommendation regarding the Administrative Fines. Mr. Goldman and Mr. Harrison discussed telephone conversation. Mr. Goldman stated that he had not indicated that he would make recommendation regarding the Administrative Fines.

Mr. Harrison stated that he had spent many hours in the CRMC offices reviewing files for abutters Anderson/Carcieri and Andrew Craig file page by page looking at every single document in both files. Mr. Harrison stated that neither file contained a permit from the ACE. Mr. Harrison stated that the review revealed that the marinas side by side had the same thing in common, which was they had all existed for at least 20 years after the CRMC was created. Mr. Harrison explained the history of ownership and management of the abutting marinas. Mr. Harrison stated that when Mr. Craig applied to CRMC to legalize his marina the application was considered an application for an existing marina, however Mr. Harris is doing much the same thing and his application is being considered an application for an illegal marina. Mr. Harrison stated that the Anderson/Carcieri application submitted 23 years after CRMC was created was also treated as an application for existing marina. Mr. Harrison stated that he had a motion to rescind the Cease & Desist order to enter into the record on the premise that all three marinas were illegal upon application to the CRMC nor did they have ACE permits. Mr. Harrison stated that also, Anderson/Carcieri were allowed to continue to operate and have their docks in the water while their application for CRMC assent was pending and their administrative fine was rescinded. Mr. Harrison stated that Mr. Craig was also permitted to operate his marina during the application process. Mr. Harrison stated that the Anderson/Carcieri application was approved for a 36-slip marina but at this time there are approximately 50 slips but was not cited when staff was in the area visiting Mr. Harris’ site.

Mr. Harrison explained a photo dated 1955 from the Craig file stating that based on photo both marinas were on equal footing. Mr. Harrison argued further about the three marinas being in similar situation at times of application and should all be treated the same. Mr. Harrison started to discuss the administrative fine situation. Chair Tikoian stated that a formal appeal of the Administrative fine had not been filed therefore could not be discussed. Mr. Harrison stated that during his conversation with Mr. Goldman he had requested that Mr. Goldman make a recommendation to the Council and sent a letter to his client informing him of conversation. Mr. Harrison stated that he would like to argue it. Mr. Goldman stated that he had informed Mr. Harrison that he was glad the floats had been removed as he was scheduling a meeting to ask the Council to authorize going to superior court to seek injunctive relief against Mr. Harris, however, since the structures had been removed, Mr. Goldman stated that it would be put in front of the Council on an expedited basis and then given expedited permit review. Chair Tikoian stated that it would be best if applicant when through normal procedures to appeal the administrative fine. Mr. Goldman stated that Chair Tikoian could accept Mr. Harrison as appealing the fine in a timely manner and that it can take its normal course. Mr. Harrison stated that he was making a verbal motion to appeal the fine and would like to be heard on that issue. Chair Tikoian asked Council members for input. Chair Tikoian stated that he would like to hold the arguments on the fine for the moment and get the record complete on all other issues regarding marina. Minor disruption from audience.

Mr. Harrison read several excerpts from March 23, 2010 transcript, the first being that Mr. Fugate talked about obtaining the ACE permit and it becoming part of the CRMC permit chain allowing CRMC to move forward. Mr. Harrison stated that Mr. Craig did not have ACE permit but was still issued a permit. Mr. Harrison stated that in the same case as Mr. Craig’s CRMC application, Mr. Harris had stated that no toilet facilities would be on the premises therefore not needing a DEM WQ certificate. Mr. Harrison stated that the amnesty program window ended prior to January 1999, yet Mr. Anderson submitted his application after that window of opportunity ended but was granted a permit for existing marina without ACE permit. Mr. Harrison stated that in the transcript it refers to local authority having no objection to Mr. Harris operating a marina at the site as long as it complies with applicable rules and regulations. Mr. Harrison stated that Mr. Harris appeared before the East Greenwich Town Council and pledged under oath to comply with all application rules of the Town of East Greenwich. Mr. Harrison stated that Mr. Harris was being treated by different standards that Mr. Anderson and Mr. Craig in that they were allowed to operate their marinas while their application was being processed, however Mr. Harris was ordered to remove his floats. Mr. Harrison asked that the Council rescind Cease and Desist Order issued on March 23, 2010 and to allow Mr. Harris to operate his marina during the time that his application for CRMC is pending and until such a time as he has exhausted all of his administrative and appellate remedies.

Mr. Fugate explained the permitting process for the Craig marina stating that in 1994 the General Assembly enacted a statute to grandfather recreational boating facilities and the Council instituted a marina certification program which ran concurrent with the General Assembly’s forgiveness program. The General Assembly had extended the program several times and closed the door on the process in 1999. Mr. Fugate stated that during the forgiveness program, which was heavily publicized, any marina could make application to our office providing proof that the marina had been in existence prior to 1971 and possibly receive a certification for their marina which would grant a marina perimeter limit and a boat count. Mr. Fugate stated that Mr. Craig received his permit under this program which did not require a previous ACE permit. Mr. Fugate stated that the Anderson/Carcieri marina was cited during the enforcement sweep that was going through East Greenwich. Mr. Fugate stated that what is being offered to Mr. Harris is the same thing that was offered to Mr. Anderson and Mr. Carcieri for their marina meaning they went to the ACE and received a pre-existing marina permit which they in turn submitted to CRMC for their state pre-existing marina certification. Mr. Fugate stated that CRMC did not issue a permit to Mr. Anderson and Mr. Carcieri until their ACE permit was received. Mr. Fugate went on to say that if Mr. Harris is not able to obtain ACE grandfather permit, it will be very difficult to obtain a CRMC permit for his marina facility as he may not be able to meet the special exception burdens. Mr. Fugate reiterated that the ACE grandfather permit would be the least difficult path to obtaining a CRMC permit. Mr. Dawson asked Mr. Fugate about the marinas in Greenwich Cove that were involved in the enforcement sweep. Mr. Fugate stated that Mr. Harris’ marina was one of the marinas. Mr. Fugate stated that CRMC still offers for any marina that if they can get a grandfather permit from ACE, CRMC will recognize them as a pre-existing marina. Chair Tikoian asked for clarification of the date for the opportunity to grandfather the marina. Mr. Fugate stated that even today, if a marina can provide ACE grandfather permit, CRMC will review the application for a pre-existing marina. Chair Tikoian asked if an ACE permit was applied for as of this time. Mr. Harrison stated that the application is quite in depth and had not been completed as of yet. Mr. Fugate stated that perhaps Mr. Harrison should call the ACE and speak with someone about the grandfather permit application which is quite different than asking for a new marina permit. Mr. Fugate stated that proof needed to be provided to the ACE that the marina had been in existence prior to 1961. Discussion on the use of aerial photos as proof. Chair Tikoian asked Mr. Fugate if the abutting marina owners owned their land. Mr. Fugate stated that both marinas owned the land but that there had been instances where grandfather permits had been issued for leased property.

Mr. Harrison questioned Mr. Fugate on the timeframe by which Mr. Harris was informed that his marina needed to be permitted. Mr. Fugate stated that in most cases, CRMC enforcement responds to complaint calls and it is when they investigate the complaint that they will also uncover other situations. Mr. Harris’ case was discovered when responding to a call on the Anderson/Carcieri marina. It was again clarified that the Anderson/Carieri marina was allowed to operate during permit process. Mr. Harrison talked about a photo from 1955 in regards to using it as basis for ACE permit. Mr. Fugate stated that he could not speak for ACE. Mr. Fugate stated again that the best way for Mr. Harris to legalize his marina is by obtaining and ACE grandfather permit and when that is received, the CRMC can issue a permit for whatever the ACE recognizes as prior to 1961.

Chair Tikoian asked Mr. Harrison about the local authorization/lease. Mr. Harrison stated that a draft lease had been drawn and that the town if prepared to execute it once they know that Mr. Harris has a permit to operate. Discussion on the application materials submitted to the CRMC office for legalization of marina.

Mr. Harrison expressed to the Council that Mr. Harris is acting diligently to obtain all the necessary documents to operate his marina. Discussion amongst Council on whether to let Mr. Harris operate marina during permitting process and the timeframe that would be required to obtain an ACE permit and submit to CRMC for pre-existing marina approval. Mr. Sullivan also suggested that the Council address the issue of riparian rights if the marina is going to be operational. Mr. Goldman and Mr. Harrison discuss details of plat and lot boundaries for the purpose of setting riparian boundaries. Mr. Sullivan stated that the lot width could be construed as an extension of the terminus of the road. Chair Tikoian stated that the Council would like to have a written agreement with Mr. Harris prior to putting the floats back in. Mr. Goldman and Mr. Harrison agreed to work on the agreement in the coming week; in the event of a breakdown in communication the subject can be revisited at the June 22, 2010 semimonthly meeting. Mr. Sullivan motioned, seconded by Mr. Dawson, that the Council grant the right to Mr. Harris to operate a marina facility consistent with use agreement acceptable to Counselor Goldman on behalf of the CRMC and conditioned with lot line extension as practiced by the Council in all matters, and sensitive to the language specifically used in the May 12th communication to Mr. Fugate from the Corps where it mentions structures should not extend beyond the properly line easterly in the cove; for the period of the boating season of 2010 to end on or about October 31, 2010. Motion carried on unanimous voice vote.

6. Enforcement Report – May, 2010

None were held.

7. CATEGORY “A” LIST

Accepted as presented.

8. ADJOURN

Meeting adjourned at 7:41 p.m.

Respectfully submitted,
Grover Fugate, Executive Director
Reported by Lisa A. Mattscheck

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