Guillaume deRamel recused himself.

Mr. and Mrs. Aluzzo were present along with their attorney, Joseph DeAngelis, and Scott Rabideau as their environmental consultant.

Dave Reis gave overview of the Petition for Declaratory ruling explaining three points in questions:

1. Assent and approved plans neither prohibit nor regulate cantilevered balconies on this property.
   Mr. Reis stated that staff was of the opinion that the assent, approved plans and deed restriction restricted all further expansion of the authorized improvements.
2. The proposed cantilevered balconies are not a porch and deck as commonly termed by CRMC
   Mr. Reis stated that programmatically the balconies fit the definition of development and they fit the definition of any alteration or activity within the Council’s jurisdiction but most importantly, they fit the definition of association residential structure by Section 300.4. Mr. Reis stated that staff’s position is that they are regulated.
3. Proposed balconies are consistent with the Assent.
   Mr. Reis stated that staff’s position is that the balconies or decks are an expanded improvement, which is inconsistent with the Assent, approved plans and the deed restriction.

Mr. Reis explained that the original applicant came to CRMC with a severely restricted piece of property based on CRMC standards and staff does not like to deny people of reasonable use of their property. Mr. Reis stated that they kept the original assent review at the administrative level as the director felt that we could negotiate with the owners of the property. Mr. Reis stated that along with his supervision, the staff review was done by Tim Motte. Mr. Reis stated that a compromise was reached among all parties that were fully supported. Mr. Reis stated that the Assent was written permanently limiting the work to what was agreed upon by all parties. Mr. Reis stated that the applicant agreed to put notes on the plan that said there shall be no further expansion or improvement of what was authorized and their attorney, Stephen Hartford, drew up a deed restriction that said “there shall be no further expansion of the proposed improvements.” Mr. Reis stated that the assent was administratively approved by the Executive Director and all documents were properly recorded in the land evidence records so that any future owner would be on notice of the restrictions on the property. Mr. Reis stated that the new owner purchased the property and started construction and are now in violation of assent. Mr. Reis stated that permitting staff and enforcement staff tried to work through what they could work through with the current owners, a consent agreement was reached and many of the violations were resolved but the one item that is still in question is the supports for the balconies which wrap around three sides of the dwelling. Mr. Reis stated that staff agreed and recommended approval administratively for the third floor balcony on the north side and the second floor porch on the street side, both of which would have the least environmental impact. Mr. Reis stated that staff did not feel it was appropriate to further compromise on the east and west sides which have a minimum setback of ten feet. Council members had no questions for Mr. Reis.

Mr. DeAngelis explained the series of events the led the applicants to this point stating that Mr. Aluzzo stopped the construction immediately once he knew there were issues and consulted his architect Herb Arnold and then in turn retained Mr. Rabideau. Mr. DeAngelis stated that Mr. Rabideau went to the property to check things out and took pictures – all happening with a few days of finding that there was an issue. Mr. DeAngelis explained that the Aluzzo’s bought the property from Mr. Howard and have done everything above board. Mr. DeAngelis stated that collectively all three professionals, he, Mr. Arnold and Mr. Rabideau had never heard of a CRMC prohibition of a cantilevered balcony.

Scott Rabideau was called to testify, was sworn in and identified himself for the record as the Principal of Natural Resource Service, Inc in Harrisville, RI. Mr. Rabideau was qualified as an expert witness as a coastal biologist. Mr. Rabideau’s experience with CRMC application process was established. Mr. Rabideau used the photos he took in November 2012 and September 2013 of the property to testify about his involvement in the application with the cantilevered balconies. Mr. Rabideau described the site conditions explaining that the 10’ setback around the house was a stabilized grass lawn area and that from the edge of the retaining wall it is naturalized vegetation. Mr. Rabideau stated that the east and west sides of the property were dominated by phragmites and that the wooded area had a fairly dense understory. Mr. Rabideau confirmed that he had read the CRMC staff report by David Reis. Mr. Rabideau was asked to testify to the adverse effect of the balcony due to the presence of ticks and mosquitoes. Mr. Rabideau stated that most homeowners treat their lawns for tick and mosquitoes and the cantilevered balcony wouldn’t have any effect on that one way or another. Mr. Rabideau testified that the Aluzzo’s were prepared to compromise by excluding the 24’ x 10’ patio and the wrap around structure on north side of dwelling and that he thought it was a very fair compromise with less impact overall on the functions and values of both the buffer zone and the coastal wetland. Mr. Rabideau then testified to his familiarity with CRMC assent language specifically that the assent must be complied with in accordance with the plans on file. Mr. Rabideau testified regarding the CRMC approved plans for the property stating that the plan was and ISDS approval plan that showed the footprint of the house and that it was very busy with many notations and notes. Mr. Rabideau testified to the best of his knowledge that the Aluzzo’s built the structure in compliance with the plan’s footprint. Mr. Rabideau testified that the plans do not reference anything about balconies. Mr. Rabideau testified that in his 25 years of experience with CRMC, he does not know of any prohibition in the language of the assent that says that you cannot have a second story deck on top of a porch. No further questions of Mr. Rabideau.

Mr. Motte made a few clarifications regarding the permitting situation stating that he had reviewed the application and stated that he had worked for 2.5 years with the previous owner to be able to gain viable economic use of the property by building the minimum size structure. Mr. Motte stated that the footprint measured 24’ x 24’ with minimum accessories, allowing for an 8’ x 12’ entry porch that could not be part of the foundation. Mr. Motte stated that the CRMC staff tried to have a limited human interference in the coastal wetland resource. Mr. Motte explained that septic and stormwater were taken into consideration. Mr. Motte stated that the project was tightly defined in permitting and a conservation easement and that the new owners were supposed to follow the permit and have compliance. Mr. Motte stated when he visited the site prior to construction of the house; he saw the proposed diagram of the house and explained to the contractor that the balconies were not approved in the assent or on the site plans. Mr. Motte explained that there were enforcement issues as well. Mr. Motte talked about CRMC staff’s effort in permitting and the compromises that staff makes so property owners can use the property.

Vice Chair Lemont asked if the issue before the Council concerned only the cantilevered structure, what the impact would be to the property and would there be any hardship to the environment. Mr. Reis answered that yes the cantilevered structures were an issue and that the buffer issue is that owners will agree to buffer zones and then come back later asking for relief as the buffers are causing difficulty. Mr. Reis explained that the developed property is to be sold and that at some point the new owner will approach CRMC staff and explain that there are issues such as mold, mildew, ticks and mosquitoes and want to modify the assent. Mr. Reis stated that staff is trying to protect the integrity of what they know have been issues in the past. Mr. Reis explained that trees have been cut off in the conservation easement so there could be a view from the deck and a new owner will want to come in and maintain the views that should not have been there to begin with. Mr. Reis explained that the assent had been recorded to begin with and when the present owners bought the property were aware of the stipulations but want to change them anyways.

Mr. Goldman explained the process of a declaratory ruling.

Mr. Affigne asked for clarification of the timeframe between Mr. Motte’s site visit and Mr. Rabideau’s involvement at CRMC. Mr. Motte answered two – three months. Mr. Motte again stated that when he visited the site there was not structure but the picture of the proposed dwelling was there which did not match CRMC authorization. Mr. Motte confirmed that at the time there were not violations on the site. The other violations were not realized until Mr. Rabideau became involved with CRMC 2-3 months later. Mr. Rabideau stated that the Aluzzo’s were very cooperative with CRMC enforcement staff to fix the violation situation. Mr. Affigne expressed concern that the owners, whose property is out of compliance with CRMC assent, were requesting more from CRMC rather than fixing violations on site.

Mr. Rabideau stated that a mistake was made on the site in the filling of a portion of the buffer zone, but that it was rectified as was all other violations.

Mr. Reis confirmed that CRMC was looking for the cantilevers to be removed from all sides but was willing to compromise by allowing the balcony on the north side.

Mr. Fugate clarified for the Council that the CRMC does regulate the structure the owners are calling a balcony, stating that CRMC recognizes all appendages emanating from houses as decks and there are very specific language to deal with them. Mr. Fugate stated that staff works very diligently to compromise on issues of applications with property owners, making a lot of concessions and thought that it was set in such a way that change would not be a possibility.

Mr. Reis stated that as a supervisor he tries to, in many cases, give guidance to his staff to compromise with applicants but that when those compromises become further and further compromises, it is difficult to continue to promote negotiation.

Mr. DeAngelis clarified to the Council that it was Mrs. Aluzzo that filed a complaint with the office of Regulatory Reform. Mr. DeAngelis also stated that nobody has a history of CRMC regulating cantilevered balconies and that a balcony has never been considered an expansion by this agency.

Mr. Aluzzo was called to testify; he was sworn in and identified himself for the record. Mr. Aluzzo testified to his 25 years of experience in construction/contracting field. Mr. Aluzzo stated that he never sought regulatory approval for cantilevered balconies and built houses with approved footprint. Mr. Aluzzo stated that he received blueprint of the house with balconies all around it at the closing when they purchased the property in April of 2012. Mr. Aluzzo testified that he was not informed that a CRMC Staff member expressed concern about the decks to be placed on the house. Mr. Aluzzo testified to the economics of this business. Mr. Aluzzo testified to his first encounter with CRMC staff regarding the balconies and that he immediately contact Herb Arnold and retained Scott Rabideau. Mr. Aluzzo testified that the balconies were very important to the square footage of the home and for maintenance purposes of the exterior of the home. Mr. Aluzzo testified that the Watch Hill Fire Department made a site visit and wrote a letter saying there was no problem for the fire department. Mr. Aluzzo confirmed the size of the house as being 1470 s.f.

Jane Austin was sworn in and identified herself for the record as being a Senior Policy Analyst for Save The Bay and stated that Save The Bay was opposed to the petition to grant declaratory judgment in this case and made a presentation of their objection pointing out that the CRMP Section 300.4 refers to the Council of American Building Officials building code for definitions and that it is consistent with the balcony of this project; that it was clear from the CRMP Section 300.3 that CRMC regulates such appendages; and that the owner should be informed of all aspects of permitting on their property.

Mr. DeAngelis made a closing statement based on previous testimony.

Mr. Affigne asked for a clarification on what makes a balcony not structurally equivalent to a deck. Mr. DeAngelis answered that a balconies are supported by a support system from inside the house where decks are supported by columns.

Mr. Fugate clarified that he suggested bringing the issue before the Council for a declaratory ruling as the project was not eligible for a modification of assent. Mr. Fugate confirmed that cantilevered decks were regulated. Mr. Fugate clarified that staff had offered a compromise.

Chair Livingston asked for a motion.

Mr. Affigne made a motion to deny the petition for declaratory ruling. Mr. Gomez seconded the motion.
Chair Livingston stated she felt that it was very clear that the assent said no further expansions and that any and all changes needed prior approval from CRMC. Chair Livingston stated that she wanted to encourage compromises by staff to be able to handle applications on an administrative level. Chair Livingston stated that she was supporting the motion to deny.

Mr. Coia stated that he did not feel that a vote to deny the regulatory ruling should inhibit staff from compromising.

Mr. Gomez stated that he thought the case was argued well on both sides and that with all considered he would support the position of motion to deny.

Vice Chair Lemont stated that he always tried to respect property owner’s rights to occupy and build and did not see where the environmental impact would come from balconies, therefore, he would not support the motion to deny.

Mr. Sahagina echoed Vice Chair Lemont’s comments.

Mr. Goldman did a roll call vote stating that a vote in the affirmative was to deny declaratory ruling.

Mr. Sahagian No
Mr. Gomez Yes
Mr. Coia No.
Ms. Montanaro Yes
Mr. Affigne Yes
Mr. Gagnon Yes
Mr. Lemont No
Chair Livingston Yes

Mr. Goldman counted 5 in the affirmative and three in the negative. Motion to deny declaratory judgment is approved.

Mr. Reis gave a brief overview to Council. Mr. Sahagian and Vice Chair Lemont motioned for approval of application, seconded by Mr. Coia. Motion carried with one abstention from Mr. Gagnon.

Mr. Reis gave a brief overview to the Council. Mr. deRamel motioned approval seconded by Vice Chair Lemont. Mr. deRamel expressed his encouragement for the project. Motion carried with one abstention from Mr. Gagnon.

Mr. Reis gave a brief overview stating that staff recommended approval. Mr. Sahagian motioned to approve the application with a second from Vice Chair Lemont. Motion carried on a unanimous voice vote.

Mr. Boyd gave an overview of the program change.

Chair Livingston opened the Public Hearing stating that comments from Save The Bay, Conservation Law Foundation and Surfrider were all in packet and that at this time staff is not recommended any changes to what has been publicly noticed.

Mr. Affigne asked Mr. Boyd’s reaction to the objection letter from CLF. Mr. Boyd stated that he disagreed with their view point that the experimental controls were age old shoreline hardening labeled as hybrid systems. Mr. Boyd explained that the experimental controls that had been permitted were sand bagging, burritos made with manmade materials. Mr. Fugate stated that language was very specific when regulations were drafted and that it banned all hardened structures in Type 1 waters. Mr. Affigne asked for confirmation that CRMC would resume enforcement action after the Council adopted the new regulations. Mr. Fugate confirmed that after the Council adopted the regulations and they had gone through the 20 day SOS period that CRMC staff would send a letter to people giving them the chance to apply for experimental protection and that if they did not then enforcement letters would go out.

Mr.Gomez asked for clarification of the sunset clause. Mr. Boyd stated that after a six year period the rules would be rescinded and hopefully there will be some answers to the question of shoreline protection.

Mr. Fugate explained the four elements to the proposal: first was to approve the town wall, the second was the development of the SAMP, third was to develop experimental regulations and the fourth is the removal of illegal structures.

Chair Livingston opened public comment.

Jane Austin read comments from Save The Bay expressing their concern with adding the small area of the South Kingstown Town Beach to the experimental erosion allowances.

The Town of South Kingstown was represented Stephen Alfred, Town Manager who expressed the Town’s interest in trying experimental controls on the area that has eroded due to the armorstone that abuts property used by the condominium association.

Mr. Affigne asked what kind of experimental mechanisms the Town was considering. Mr. Alfred talked about geomattresses.

Chair Livingston closed the public hearing.

Mr. Sahagian motioned to approve the regulations seconded by Mr. Gomez.

Mr. Fugate explained the enforcement oversight of the areas stating that letters would go out offering the ability for experimental control applications. If applications come in and are approved, illegal structures would need to be removed prior to experimental controls being built. If the property owners decide not to try experimental methods, and illegal structures are not removed, enforcement staff would seek action.

Motion carried on a unanimous voice vote.