In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, February 11, 2014 at 6:00 p.m. in Conference Room A, Administration Building, One Capitol Hill, Providence, RI.

Members Present
Anne Maxwell Livingston, Chair
Paul Lemont, Vice Chair
Ronald Gagnon, RIDEM
Raymond Coia
Donald Gomez
Tony Affigne
Jerry Sahagian
Joy Montanaro
Michael Hudner

Staff Present
Grover J. Fugate, Executive Director
Jeffrey M. Willis, Deputy Director
David Reis, Spv Environmental Scientist
Brian A. Goldman, Esq.

1. CALL TO ORDER

Chair Livingston called the meeting to order at 6:00 p.m.

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Vice Chair Lemont motioned, seconded by Mr. Coia, for the approval of the minutes from the meeting of Tuesday, January 28, 2014. Motion carried on a unanimous voice vote.

3. SUBCOMMITTEE REPORTS

None

4. STAFF REPORTS

Mr. Fugate reported to the Council on the following issue:

• The Hearing on the Deepwater Wind Application progressed for four hours. It was decided to have two more hearings – one in Block Island on February 24th for as long as it takes or until the last boat leaves and one at the Coastal Institute Auditorium, URI Bay Campus on February 27th at 10:00 a.m. Mr. Goldman relayed that the Hearing notices for Deepwater were advertised in newspaper providing ample public notice which is usually not our practice for public hearing continuances.

Mr. Goldman updated the Council on the following issue:

• The Ludwig case decision was received from Superior Court in Aug/Sept upholding denial. Plaintiff has chosen not to challenge denial in a higher court. Case is over.

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

2014-01-049 CITY OF EAST PROVIDENCE/CleanBays dba Clean the Harbor – Pilot project for debris removal in Bold Point. Located at Waterfront Drive, East Providence, RI.

Mr. Reis gave a brief overview of the application to the Council stating that the project will take place in Green Jack Shoals where Clean Bays will recover old pilings and will place them in Bold Point Park to dry out. Mr. Reis stated that some will be taken to Maine and be sawn to use as timber. Mr. Reis informed the Council that the CRMC staff recommended approval of project as it is consistent with our program and Providence SAMP. Vice Chair Lemont informed the Council that the City of East Providence had been trying to accomplish a clean up of this area for a number of years. Vice Chair Lemont motioned, seconded by Mr. Coia, for approval of the application. Mr. Sahagian asked why the application was brought before the Council as it is a maintenance application. Mr. Willis answered that any work in tidal waters required Full Council approval. Motion carried on a unanimous voice vote.

2013-11-096 FOUR TWENTY CORPORATION – Relocate existing dwelling authorized by CRMC Assent B2007-04-079 due to post construction survey showing construction on adjacent property (of Rose Nulman Park Foundation); also relocate OWTS (septic system) and driveway and construct a bridge to provide access over coastal wetlands. The project requires additional RICRMP coastal buffer zone and setback variances (beyond those previously authorized). Municipal water service will be provided. The area of disturbance on the adjacent property will be restored to pre-construction conditions after the relocation project is completed. Narragansett Assessors Map Plat M, Lots 161 and 161-1 will be merged to accommodate the revised development. A revised conservation easement is proposed along with a pedestrian easement to provide public access along the property shore front. Located at plat M, lots 161, 161-1; 1444 Ocean Road, Narragansett, RI.

Mr. Reis gave a brief overview of the application to the Council explaining that CRMC had previously approved the construction of house in the application but that a survey showed that the house was built on property that was owned by the abutter. Mr. Reis stated that the applicant was asking to relocate the dwelling and build bridge to access the property. Mr. Reis stated that there was a conservation easement that was approved with the previous permit and that staff is ok with the easement which provided public access for the area. Mr. Reis explained the errors that occurred in building the house using plan provided. Mr. Reis stated that the staff recommendation was no objection but a deferral to the Council for the variances required and also to hear the objections. Mr. Reis stated that staff did not have objections to the granting of the variances. Mr. Reis explained that an honest error was made by the engineer and that the applicant was known by CRMC staff and that the applicant worked well with CRMC. Mr. Reis stated that staff believed that there was a valid hardship that was present. Mr. Fugate explained that the applicant in redesigning the project had relocated the septic system further away from coastal feature and the bridge would span over a wetland. Mr. Fugate also explained that the applicant is asking to physically move the house and shift it to minimize impact as much as he can with adjustments given the current circumstances. Mr. Sahagian asked about case law indicating responsibility of the applicant due to an error by a professional. Mr. Packer stated that he had submitted documents with the application package covering case law. Mr. Packer state that the case had been widely publicized and that the applicant had been ordered by the court to move the dwelling from the abutter’s property. Mr. Packer informed the Council that a substantial restoration project was also associated with the current project which included the restoration of a deteriorated wetland.

Mr. Affigne asked if alternatives were considered regarding the positioning of the house on the property. Mr. Packer stated that there were no alternatives as the upland area on this site was utilized for septic system. Mr. Goldman relayed that there was lengthy litigation in Supreme Court regarding the case and that the Rose Nulman Park Foundation would not relay the land in which the house was mistakenly built so Mr. Lamoureux tried to compel the land but the court did not allow. Mr. Packer stated that Mr. Lamoureux also offered to swap land for land or to pay for the land along with a donation to the Foundation, but the abutter refused all offers.

Ms. Jane Austin and Mr. Tom Kutcher of Save The Bay were sworn in and identified themselves for the record.

Mr. Kutcher started to read objection letter to the Council but it was pointed out that the letter was part of the record. Mr. Kutcher asked the Council to deny the application based on their concern that the current proposal proposed no setback or buffers which are extremely important to the wetlands. Mr. Kutcher expressed concern about the location septic system regarding the wetland and his concern about the location of the house in the future with sea level rise of 3-5 feet in area. Mr. Kutcher suggested moving the house to another piece of property and that keeping smaller portion of the house would not satisfy Save The Bay’s concerns.

Ms. Austin reminded the Council of their responsibility to prevent significantly adverse environmental impacts. Ms. Austin expresses concern regarding construction in a coastal V-zone with the applicant requesting a 100% reduction in setback and buffer requirements. Ms. Austin expressed concern that the Council was trying to correct mistakes of the applicant at the expense of the environment.

Mr. Hudner felt that the reason the Council existed was for these situations and that they do have the right to use their judgment and discretion in such matters.

Mr. Affigne asked about title insurance and bonding. Mr. Goldman stated that it would require much litigation. Mr. Affigne expressed that the Council was under no obligation to fix a problem that was not their fault.

Mr. Hudner stated that the decision should be made based on what makes sense in this instance and in knowing that the prior history of the applicant with CRMC was all satisfactory. Mr. Hudner felt that the Council should take into account that the wrong original land survey and subsequent building of the house on the wrong property was an honest mistake.

Chair Livingston stated that she felt that it was a mistake by the Council to permit the construction of the house in the first place and that she felt this was an opportunity to correct a bad decision made 7 years ago. Chair Livingston expressed her belief in institutional systems and stated that she was inclined to vote against moving the house even though I think it is a very problematic application.

Mr. Affigne stated that had he been on the Council back then he would have voted to deny it as the buffer and setback that was authorized in this initial assent was right on the boundary. Mr. Affigne did not think it was appropriate for the Council to give retroactive approval of an inappropriate application.

Mr. Sahagian stated that based on the fact that the applicant did not create his own hardship as staff indicated in their package, he motioned to approve the application with staff stipulations. Mr. Hudner seconded the motion with all staff stipulations.

Mr. Lemont asked Mr. Reis’ opinion on the environmental impacts to the wetland. Mr. Reis stated that there would be minimal impact with just one septic system and that system would not tax the wetland negatively. Mr. Reis stated that the staff review applications and have to find a balance everyday between what is proposed and what is allowed by our regulations. Mr. Reis stated that when looking at the whole picture, it did not appear to be the end of environmental protection in RI and that this was unique circumstance for people to use their judgment professionally.

Mr. Gagnon stated that the RIDEM approved the new improved septic system with trepidation and therefore he would support the approval of the application before the Council.

Mr. Affigne asked Mr. Reis if he thought the wetland could withstand additional nitrogen and if the wetland was changing conditions due to weather or sea level rise. Mr. Reis stated that wetlands are a true value to us and that they always change due to environment. Mr. Reis informed the Council that the applicant was approved by RIDEM for an advanced technology septic system which would remove 50% of the nitrogen causing less of an impact on the wetland than a traditional system.

Chair Livingston stated that she agreed with Mr. Kutcher regarding sea level rise and the danger of building a house too close to the coastal feature. Chair Livingston stated that should wanted to go on record that this was one place where CRMC could take one house out of the danger of losing as the water will be rising on all sides of the property.

Mr. Reis stated that he respected everyone’s opinion and that the application weighed on his mind but that there was an existing permit for the project and an existing house on the property.

Mr. Affigne stated that he appreciated the staff’s focus and details their projects but if the Council is repeatedly confronted with problems such as this and give a little each time, all those little bits will begin to add up to the detriment of the environment.

Chair Livingston stated that a motion had been made and asked for a vote. Mr. Sahagian’s motion, seconded by Mr. Hudner was approved on a 5 to 2 vote with Chair Livingston and Mr. Affigne opposed.

10. ADJOURN

Mr. Sahagian motioned, seconded by Mr. Hudner to adjourn. Motion carried on a unanimous voice vote. Meeting adjourned at 6:50

Respectfully submitted,
Lisa A. Turner, Recording Secretary

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