In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, January 24, 2012 at 6:00 p.m. in Council Chambers of the Jamestown Town Hall at 93 Narragansett Avenue, Jamestown, RI.

Members Present
Anne Maxwell Livingston, Chair
Paul Lemont, Vice Chair
Dave Abedon
Donald Gomez
Bruce Dawson
Ronald Gagnon, RIDEM
Guillaume de Ramel
Raymond Coia

Members Excused
Michael Hudner
Tony Affigne

Staff Present
Grover J. Fugate, Executive Director
Jeffrey M. Willis, Deputy Director
Kenneth Anderson, Spv Engineer
Brian Goldman, Esq.

1. CALL TO ORDER

Chair Livingston called the meeting to order at 6:00 p.m. and made opening statement.

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Chair Livingston called for approval of the minutes from the previous meeting. Vice Chair Lemont motioned, seconded by Mr. Coia, for approval of minutes from January 10, 2012 meeting. Motion carried on unanimous voice vote.

3. STAFF REPORTS

Mr. Goldman stated that his office filed a motion with the Bankruptcy court to rule that CRMC is not subject to the stay of the Bankruptcy Code, and that he would advise the Council of the outcome as soon as a ruling is made on the matter.

Mr. Fugate informed the Council that the Department of the Interior, Bureau of Ocean Energy Management will be in Rhode Island on February 15, 2012 for a 2:00 p.m. meeting with the Habitat Advisory Committee at the University of Rhode Island and then a 4:30 p.m. meeting with the Fisherman’s Advisory Board. Mr. Fugate explained that the meeting will be a briefing on the Massachusetts position and also to bring them up to date on the RI wind project.

4. SUBCOMMITTEE REPORTS

Vice Chair Lemont informed the Council that at the January 17, 2012 Policy and Planning Subcommittee meeting it was decided to seek legislative changes regarding violations to the program and fine capabilities.
Chair Livingston confirmed applicant attendance and discussed timeframes for the applicant’s presentation and the abutter’s presentations. Mr. Fugate made an opening statement.

5. APPLICATIONS WHICH HAVE BEEN OUT-TO-NOTICE FOR 30 DAYS AND ARE BEFORE THE FULL COUNCIL FOR DECISION:

010-05-070 CITY OF NEWPORT -- Construct and maintain a public “Touch and Go” boating facility consisting of 393 linear feet of concrete floating docks and associated pilings. Located at “Ann Street Public Boating Facility”; Thames Street, Newport, RI.

Present for the applicant, the City of Newport, is Joseph DeAngelis, Esq., Adler Pollock & Sheehan, and Joseph Nicholson, Jr., Esq., Law Offices of Joseph Nicholson, Jr. Present for the objector, Newport OnShore Marina is Turner Scott, Esq., Miller Scott & Holbrook; for the objector, 41 North and 802 Partners is Sean Coffey, Esq., Burns & Levinson; for objector, Astoria Realty, Gregory Fater, Esq.; and for objector 359 Thames Street, James Mullowney, Pro Se.

Mr. Anderson gave a brief overview of the project to the Council stating that the City of Newport was requesting permission to extend the city-owned Ann Street Pier facility consisting of 393 linear foot long by 10-foot wide floating concrete pier which would extend to within 20 feet of the anchorage of the federal navigation project requiring a variance of 19 feet (RICRMP Section 300.3.E.1.D. Mr. Anderson stated that since the application was submitted, the anchorage for the had been de-authorized but that needed confirmation from the USACE. Mr. Anderson stated that staff raised no objections to the issuance of the variance if it was required and that staff recommended approval of the application as detailed in the CRMC staff report. Mr. Anderson stated that the project was considered to enhance public access to and from Newport Harbor. Mr. Anderson explained that issues raised by the objectors such as administrative finality, regulation applicability, navigational impacts and littoral rights objections.

Mayor Steve Waluk, City of Newport, gave public comment regarding the project. Mayor Waluk gave a broad overview of the importance of the expansion of the pier to the City of Newport, starting with the explanation of the history of Ann Street Pier and its existence long before the current operation of the abutters to the south and north. Mayor Waluk stated that the City had received a $750,000 grant from Fish & Wildlife to build a transient boating facility in the Armory building with abuts this property which will include shower facilities, locker facilities, internet access, and information center, with the intent that it become the gateway of the City of Newport for boaters that come to the City every year. Mayor Waluk expressed the City’s goals to provide an opportunity for the public to have a greater accessibility to the waters of the state with the development of its public resources. Mayor Waluk stated that the pier extension project would provide an economic opportunity for business owners of the City of Newport. Mayor Waluk ended his public comment asking that the Council give considerable measure to the project and vote in favor of it.

Mr. Goldman explained the three procedural matters to the council that were brought out as the September 6, 2011 pre-hearing conference. Mr. Goldman stated that the first matter was whether or not the Doctrine of Administrative Finality bars the CRMC from considering the matter. Mr. Goldman stated that the matter had been briefed by all parties involved and that each attorney would have the chance to summarize the arguments raised in their briefs. Mr. Goldman stated that if the Council finds that the administrative finality bars consideration of the application, then the hearing for this matter will be ended. Mr. Goldman stated that if the Council finds that the Doctrine of Administrative Finality does not bar consideration of the application, then the second issue is whether or not the application should be considered under RICRMP Section 300.3 or Section 300.4. Mr. Goldman stated that after the Redbook Section applicability was decided, then the Council would address the issue regarding littoral rights that have been raised by the objectors. Mr. Goldman also pointed out that the application would also be reviewed under RICRMP Section 300.1 regardless of how the Council votes on Section 300.3 or 300.4. Mr. Goldman stated that all the briefs and submissions and proposed exhibit lists and proposed exhibits are part of the CRMC administrative record.

Mr. DeAngelis opted to allow the objectors to speak first.

Mr. Scott began the explanation of his argument by saying that the City had come before the Council in 1984, 1994 and 2010 for the same project with no substantial difference between their 1994 application and their 2010 application. Mr. Scott stated that the City could not point to a change in circumstances that meets case law. Mr. Scott stated that the town is calling it a touch and go facility now instead of a Marina and quotes Romeo and Juliet, “ A rose by any other name would smell as sweet,” portraying that there was no difference between the proposed touch and go facility and a marina. Mr. Scott asks the Council to rule in favor of the fact that administrative finality governs and the plan should not go through until it is substantially changed.

Mr. DeAngelis explained to the Council that Administrative Finality prevented identical and repetitive applications. Mr. DeAngelis explained that it is clearly illustrated that the 1994 and the 2010 application are submittals of two different facilities. Mr. DeAngelis stated that during the 1994 hearing process the advice of the Council was that the dock extension should be centered more in the fairway and the 2010 application does that. Mr. DeAngelis stated that most importantly the 1994 application indicated that the facility would be privately operated which is not the case with the current application. Mr. DeAngelis stated that there had been a great evolution in the rules and regulations of CRMC since the 1994 submittal giving RICRMP Section 300.4 as an example, stating that the regulation consisted of five pages in 1994 and those regulations are not 17 pages. Mr. DeAngelis also explained that Section 300.3 also changed within that timeframe. Mr. DeAngelis stated that there is specific case law which says that when regulations change, the Doctrine of Administrative Finality is not applicable. Mr. DeAngelis ended by saying that the circumstances are different and the relief requested in different and respectfully requested that the issue of administrative finality be set aside and overruled.

Mr. Goldman read a paragraph from the Supreme Court case of Johnston Ambulatory Surgical Assoc vs Patricia Nolan describing that when an administrative agency receives an application and denies it, the same subsequent application may not be granted absent a showing of a material or substantial change in circumstances in the time intervening between the two applications. Mr. Goldman stated that the rule places a burden on the applicant to identify the substantial changes. Mr. Goldman stated that whether or not it is a substantial change is a factual decision for the Council to make based upon the application before them. Mr. Coia asked if the lapse of time could play a part in the substantial change. Mr. Goldman stated that the lapse of time is not a factor. Mr. Goldman stated that staff had addressed the issue of administrative finality in their reports and staff’s conclusion was that it is a different application, regulations are different and that there has been a substantial change in circumstances. Vice Chair Lemont motioned, seconded by Mr. Dawson, that the issue of administrative finality does not apply. Motion carried on a unanimous voice vote.

Mr. Goldman stated that the next issue was whether the application should be governed under RI CRMP Section 300.3 or Section 300.4 (among other sections as well). Mr. Goldman stated that the objectors had argued that the application should be considered under Section 300.4. Mr. Fugate addressed the Council stating that CRMC staff had quite a bit of discussion at the staff level in terms of Sections 300.3 and 300.4 and pointed out the differences between the sections stating that 300.4 does not contain regulations regarding ship repair facilities, ship sales, small craft rental, sailing schools, ferry docks and public access. Mr. Fugate stated that CRMC is required under the Federal Coastal Zone Management act and the Council’s regulations to give difference to public access which a touch and go facility can be considered to be used for public access. Mr. Fugate stated that staff has been consistent in that interpretation with other applications and that they believe this application should be regulated under 300.3 not 300.4.

Mr. Coffey addressed the Council and stated that he and the other attorneys present join Mr. Scott in support of all arguments. Mr. Coffey states that it seems pretty obvious that project proposed is a marina facility under the definition contained in Section 300.4 as it will accommodate five or more recreational boats and that Section 300.4 is the only regulation that references tough-and-go facilities. Mr. Coffey expressed his opinion that the only significant change for 300.4 was the requirement that marinas go through the preliminary determination process to vet out potential issues. Mr. Coffey also stated that the City of Newport did not approach the littoral owners for permission to extend the dock within the setback area. Mr. Coffey finished addressing the Council by asked that the Council send the application back for reconsideration and rereview to determine its compliance under Section 300.4 which would include all the steps required such as the Preliminary Determination process and consultation with neighbors.

Mr. DeAngelis reiterated that there has been an evolution in the way the Council regulates marinas with the expansion of RICRMP Section 300.4 and also talked about the difference between this project and a marina which usually offered more services than the touch-and-go facility proposed. Mr. DeAngelis stated that the most important point of difference was boat count which the proposed project did not have as it was a 48 hour maximum touch-and-go transient facility. Mr. DeAngelis made one more point stating that the Council had changed 300.4 to take out the commercial-type operations such as touch-and-go facility as proposed by the City of Newport.

Mr. Fugate addressed the Council to reiterate the distinction between Section 300.3 and Section 300.4. Mr. Fugate stated that a pre-application review is done internally by staff but not mandatory by his discretion for marinas with a boat count of 25 or less. Mr. Scott disagreed with Mr. Fugate’s assertion that he can waive the preliminary review. Mr. Scott strongly argued that the proposed facility was a marina but that if it was a commercial facility the City of Newport would be subject to its own zoning ordinances which would include providing parking.

Vice Chair Lemont motioned, for the sake of discussion, to recommend the Council hear the application under CRMCP Section 300.3. Mr. Coia seconded the motion, for purpose of discussion. Mr. Dawson talked about parking concerns due to the fact that most of the boats are transient and covered under Section 300.3. Mr. Dawson and Vice Chair Lemont asked for further clarification from Mr. Fugate regarding his ability to waive an internal review to which Mr. Fugate stated that the review for 300.3 and 300.1 would be the same and that given the issues, the outcome would be the same as it is now. Mr. Fugate stated that since the regs have changed, staff has been pretty consistent treating these facilities under Section 300.3. Mr. Fugate stated that touch-and-go facilities are allowed to charge a full usage fee but he is unaware as to whether or not the City plans to charge but it would make no difference to the determination of the facility.

Mr. Anderson informed that Council that staff not only reviewed the Perotti Park application but also used the Town of Jamestown as a guide for the touch-and-go dock added to their marina.

Mr. Coffey stated that it is not the number of the boats but the number of spaces that are allocated for boat that is recognized under the regulations and the City has allocated 25 more spaces in addition to the spaces that were left over on the old portion of the Ann Street Pier.

Mr. Scott answered Mr. Lemont’s questions in regards to charging for space at the facility. Mr. Scott stated that the City would be charging market rates which would mean that the City is entering into a commercial business.

Chair Livingston called a vote on the motion made stating that an “aye” would be to follow the recommendation of staff to consider the application under Section 300.3. Motion carried on a unanimous voice vote.

Mr. Goldman introduced the third issue stating that it is uncertain as to what the littoral boundaries are of all of the properties and the argument is that the Council should not consider this matter until there is a resolution of who owns what littoral areas. Mr. Goldman stated that when staff reviewed the application they used the property line extension.

Mr. Coffey stated that he was speaking on behalf of 41 North and 802 partners as well as Astoria Realty. Mr. Coffey stated that the application was filed based on a straight line extension of the property line boundaries and also explained a second way to determine littoral boundaries was to draw a straight line to the harbor line or mooring area. Mr. Coffey stated that the Coastal Resources Management Council did not have the authority with respect to the issue of littoral rights and that the Council should stop until the matter is either resolved by agreement with the property owners or determined by Superior Court which does have jurisdiction. Mr. Coffey stated that the expansion substantially and unreasonably interferes with the littoral rights and existing uses of the objectors which have been established for many years. Mr. Coffey stated that the proposed dock extension would be a disaster to navigation and would impinge on the rights of littoral owners to the north and the south.

Mr. Fater, on behalf of Astoria Realty Trust, spoke to the Council regarding fairness and equity. Mr. Fater stated in 2006 Astoria Realty Trust applied to the CRMC for a small transient boating facility located in front of his property at 359 Thames Street. Mr. Fater distributed a packet containing materials submitted in their full memo (for illustration purposed only). Mr. Fater stated that his client had received a letter from Mr. Fugate stating that the riparian boundary lines needed to be established prior to acting on their application and the application was cancelled without prejudice. Mr. Fater stated that Astoria Realty did not get the opportunity to state their case as did the City of Newport and went into detail of their review with the City and with CRMC. Mr. Fater asked that the application be dismissed.

Mr. Mullowney, owner of property on 359 Thames Street, spoke about the lack of open space water in the City of Newport and stated that the City of Newport did not own the property.

Mr. DeAngelis agreed with the other attorneys in the fact that the Council did not have jurisdiction to determine or declare littoral rights of the various parties. Mr. DeAngelis stated that when Mr. Fater received the letter of cancellation for Astoria Realty in 2006, he had the opportunity to appeal but chose not to nor did he choose to go to Superior Court to declare the littoral rights.

Mr. Fugate explained the differences between the City of Newport’s 2010 application and Astoria Realty 2006 application stating that the 2006 application extending over property line extensions to the Ann Street Pier property line extension and displace some of the City’s floats to put their own private floats within the property line extension of the right-of-way. Mr. Fugate stated that an objection was received from another area property owner stating that may have been a misrepresentation of the property line extensions.
Mr. Coffey brought up a point that if the 1994 littoral line was correct, then the current pier layout is located within the littoral waters of Astoria Realty who shares it with 802 Partners and 41 North.

Mr. DeAngelis stated that the 1994 application showed a harbor line and harbor lines are no longer exists as abolished by the General Assembly. Mr. DeAngelis stated that CRMC regulations use property line extensions.

Mr. Goldman stated that if there is a dispute in littoral boundaries the CRMC will stop the consideration of the application only when it is in litigation in Superior Court. Mr. Goldman explained that the Council also did not have the authority to determine ownership. Mr. Goldman stated that he was advised by staff that everything that is taking place is within the property line extension of the City of Newport for Ann Street Pier. Mr. Goldman confirmed that if parties came to an agreement which was embodied in a legal document then CRMC could act on the application. Mr. de Ramel motioned, seconded by Mr. Dawson, to proceed with the matter at hand without determining littoral rights. Vice Chair Lemont and Mr. Dawson both expressed concern at going ahead with the consideration of the application based on the issues at hand. Chair Livingston stated that an “aye” vote will be to continue this matter. Motion carried unanimously. Vice Chair Lemont abstained.

Brief recess.

Mr. DeAngelis introduced Newport City Solicitor Joe Nicholson stating that they were prepared to proceed. Mr. DeAngelis made a brief opening argument stating that because of his experience before the Council he had a good perspective on this issue. Mr. DeAngelis stated that the Cities project would provide a public facility to enable boaters from throughout the region to visit the City, contribute to economic growth and enjoy what Newport has to offer. Mr. DeAngelis stated that the objectors claim interference with their business ventures. Mr. DeAngelis submits a survey from Ocean State Planners (marked as Applicant’s Exhibit 1) dated revised 03-23-2009 and explains the layout of the survey regarding location of facilities in the area. Mr. DeAngelis stated that the public’s interest in a public facility owned by the City of Newport should not be jeopardized by abutting facilities berthing mega yachts in the area.

Mr. DeAngelis called Mr. LaVallee as witness. Mr. LaVallee identified himself as Edward LaVallee, former City Manager of the City of Newport from 2006 and retired in December 2011. Mr. LaVallee gave a brief overview of the Ann Street Pier being a three phase project involving the whole property, the armory building and the pier. Mr. LaVallee stated that the City took formal ownership of the property in 2008 and with the receipt of a 714,000 federal grant, the City began plans to restore the existing pier, improve the building, create a transient boating facility on the ground level waterside, and to restore upper floors in which it was suggested to create a venue for special events or market place. Mr. LaVallee stated that the pier will be the only public access within a mile and a half for the general public and that there was no public dock space. Mr. LaVallee stated that the determination was to create a visitor site to be used by the general public on the water side of Newport. Mr. LaVallee stated that the operation will be self sufficient by design, does not received any tax dollars but will receive its own operating fees and generate it own revenue. Mr. LaVallee stated that facility will be run by the City’s harbormaster and meets all the City’s local codes.

Mr. LaVallee is cross-examined by Mr. Scott. Mr. LaVallee, at the request of Mr. Scott, explains that public dock space meant that the general public can come and visit the city using a publicly operated facility owned by the City of Newport. Mr. Scott asked Mr. LaVallee about the City’s business plan to which Mr. LaVallee stated that as a public entity it is in the public interest to have a service that the City can guarantee will be available to the public and run as a public entity. Mr. LaVallee stated that any money made by the facility will go back into the facility. Mr. Scott questioned Mr. LaVallee on the City’s zoning ordinance in regards to entering into a business on city owned property. Mr. LaVallee stated that the project was to serve the public and that the money generated has to stay with the harbor management program to enhance the service. Mr. Scott asked Mr. LaVallee about other public docking facilities at Wellington Avenue, Coddington Wharf Park, and West Extension dinghy dock. The Zoning Ordinance submitted by Mr. Scott was marked as Objector’s A full. Mr. Scott asked Mr. LaVallee about the Cecil report; asking about the warning of problems with maneuvering and safe operating. Mr. LaVallee stated that he remembered the report made recommendations to the full revenue for the program. Mr. Scott asked Mr. LaVallee about the application submitted to the CRMC and asked what research had gone into the determination that there was an unmet need for affordable public transient berthing facilities. Mr. LaVallee stated that the city considers it a benefit to the public to have publicly operated dock; a publicly regulated amenity, regulated by the city and the revenues will be returned to the program to enhance the dock space in the Armory. Mr. Scott asked about the length of time limitation. Mr. LaVallee stated that the time frame for dockage was always 48 hours. Mr. Coffee asked Mr. LaVallee whether the City had ever contemplated submitting the application as a single application. Mr. LaVallee stated that the project was meant to be in three separate phases of improvement. Discussion on project being marina vs. commercial facility. Mr. DeAngelis asked Mr. LaVallee about the economic impact of the project would have on the lower Thames Street area. Mr. LaVallee stated that the City hoped the project would bring more foot traffic to the businesses in the area by patronizing the shops and restaurants. Mr. LaVallee stated that in some cases the support was not as positive as they thought it would be. Mr. LaVallee was put under oath and affirmed that his testimony was as if under oath.

Hank Kniskern was called, sworn in and identified himself as the Chairman of the Waterfront Commission since 2006 which is a voluntary position. In questioning by Mr. DeAngelis, Mr. Kniskern explained the duties of the Waterfront Commission saying that the Commission advised the City Council on all matters related to the harbor’s operation and management. Mr. Kniskern stated that the Commission was actively involved in the Armory project and the Ann Street Pier extension project as they were involved in the Newport Harbor Management Plan (HMP). Mr. Kniskern explained the City’s Maritime Fund which was enacted to make the City’s Harbor run like its own business; meaning that whatever money came in for moorings or other operating harbor expenses were invested back into the harbor. Mr. Kniskern went over the sections in the Newport Harbor Management Plan that referred to the Ann Street Pier and the Armory. The Newport Harbor Management Plan was submitted for the record and marked Applicant’s 2 ID. Discussion on the different versions of the Harbor Management Plan and which was the most recent. Mr. Goldman asked that they work off one plan and get together later to confirm that they have the most recent plan. Mr. Kniskern informed the Council that in developing the HMP, a determination was made of the transient boating needs in Newport Harbor and with that study it was determined that there was a tremendous lack of public facilities in Newport Harbor in comparison to sister cities that were researched. Mr. Kniskern was questioned by Mr. Scott regarding the research, surveys and studies completed to develop the HMP, in some instances page by page. Mr. Kniskern stated that when applying for the federal grant, the City needed to described why this kind of facility was needed for this area as it was in competition with other surrounding waterfront cities. Mr. Kniskern stated that in listening to the public comment that there is a need for dock or mooring space. Plan of Ann Street Pier extension marked as Applicant’s 3 full. Mr. Scott asked Mr. Kniskern about safety ladder requirements on dock which were not evident on the marked plan. Mr. Kniskern explained that water service for the docked boats would be at various intervals along the dock. Mr. Kniskern stated that a pumpout facility was located along the far end of the dock but not written on the plan. Mr. Kniskern explained the vision for how the Ann Street pier would be set up for specific regular boats such as the Jamestown Ferry. Time limitation for docking was discussed and how the decision to use a 48 hour timeframe came about. Discussion and questioning on rents to be charged and how the decision to charge market value rents came about so as to not undercut other businesses. Discussion on size of boats using the transient dock space and availability of space in the harbor for them. Mr. Scott asked Mr. Kniskern to research the date in which the final proformer was given to the City so that questioning could continue at the next meeting. Mr. Scott questions Mr. Kniskern regarding the lack of Ann Street Pier extension information in the HMP. Mr. DeAngelis expresses that the HMP was a document that was approved by the Council and speaks for itself. Discussion resumes on which version is the approved version.

Chair Livingston ends discussion and asks Attorneys to come to agreement on HMP document. Chair Livingston states that the matter will be rescheduled for February 14, 2012.

6. ADJOURN

Vice Chair Lemont motioned, seconded by Mr. Dawson, to adjourn. Motion carried on unanimous voice vote.

Meeting adjourned at 9:25 p.m.

Respectfully submitted,

Lisa A. Turner
Recording Secretary

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