...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, May 9, 2017 at 6:00 p.m. in Conference Room B & C, Administration Building, One Capitol Hill, Providence, RI.
Anne Maxwell Livingston, Chair Raymond Coia
Ron Gagnon, DEM Rep
Grover Fugate, Executive Director
Jeffrey M. Willis, Deputy Director
David Reis, Spv Environmental Scientist
Rich Lucia, Spv Civil Engineer
Anthony DeSisto, Legal Counsel
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
Chair Livingston called for approval of the minutes from the previous meeting.
Mr. Coia motioned for the approval of the minutes from the April 11, 2017 Semimonthly meeting; seconded by Mr. Beaudette. Motion carried on unanimous voice vote.
3. STAFF REPORTS
Mr. Fugate reported the following to the Council:
Mr. Gomez stated that he had received the Aquaculture report today and said it was well done. Mr. Fugate explained that aquaculture is continuing to grow in the State and that both Ninigret Pond and Point Judith Pond have almost reached their limit but that access to the ponds is constraining further expansion and that CRMC needs to work on access issue.
Mr. Beaudette asked for an update on the National Grid/Fox Point process. Mr. Fugate stated that a letter was sent out on continuance of proceedings and that CRMC staff are meeting with National Grid on some of the staff concerns still relative to the project. Mr. Fugate stated that meeting locations were being looked into. Mr. Gagnon stated that National Grid needs to provide information to DEM on cleanup of the site.
4. SUBCOMMITTEE REPORTS
None were heard.
5. APPLICATIONS WHICH HAVE BEEN OUT-TO-NOTICE AND ARE BEFORE THE FULL COUNCIL FOR DECISION:
2016-02-024 CHRISTOPHER & ANNE SARGENT -- Construct and maintain a 4 bedroom single family dwelling with OWTS and private well. Located at plat 12, lot 9; 66 Sakonnet Point Road, Little Compton, RI.
Mr. Reis gave an overview of the application to the Council explaining that the house would be on a parcel of land which is primarily a wetland associated with Long Pond. Mr. Reis stated that the application required a Category B review by the Council due to large variances to the buffer zone and setback. Mr. Reis stated that the dwelling proposed would be 24’ x 36’ which is relatively small. Mr. Reis stated that the staff had issued a Preliminary Determination for the project in 2008 and recommended that the dwelling be reduced in size which the applicant has done. Mr. Reis stated that objections were received regarding the project. Mr. Reis explained that staff has gone through the application and that it meets the minimization criteria for FWW but is also a coastal pond – 50’ buffer zone is met – staff believes that application meets the regulations. Mr. Reis stated that staff had no objections to the project but defers to the council for the allowance of hearing objections.
Chair Livingston asked about access issue. Mr. Reis stated that there would eventually be an issue with sea level rise and smaller storms. Mr. Reis explained that Section 145 climate change rules are currently provided for guidance purposes and staff makes the applicants aware of the issues so they can plan accordingly. Mr. Reis stated that the right-of-way provides access to two properties. There is discussion on plans and stated that Ms. Main would distribute larger plans.
Attorney Robin Main, Counsel for the applicant, explained the larger plan that was distributed to the Council in regards to the location of the subject property.
Mr. Gomez explained that he was familiar with the area and had travelled the road after two inches of rain with moon tides. Mr. Gomez stated that there was water there but not up in the road and that there was not much of a storm surge because of the pond.
Mr. Reis stated that he talked to the applicants about 5 -10 year storms which would be a storm surge going over the coastal pond. Mr. Reis stated that the barrier does not have a permanent breachway but staff had been working with the neighborhood association for breaching of the pond.
Mr. Fugate asked if a Conservation Easement was proposed with development. Mr. Reis stated that there is no requirement for easement but has been discussed with Ms. Main prior to the hearing. Ms. Main stated that Mr. Sargent would speak to his willingness to have a conservation easement.
Mr. Reis explained that the applicant had stated in their environmental assessment submitted by Scott Rabideau that the property would not be affected by up to three feet of seal level rise. Mr. Reis stated that staff reviews the sea level rise plus storms which would have impacts from storms. Mr. Reis explained that the property was in a V-zone which would be impacted by a 100 year storm with or without sea level rise.
Mr. Beaudette asked if the waste treatment system would be affected due to flooding or water intrusion. Mr. Fugate explained waste treatment along the entire shoreline stating that DEM would get involved in the event of a system failure. Mr. Reis explained that the Advantex sand filtered denitrification system proposed would remove nitrogen.
Mr. Gomez asked about building plans providing reinforced building practices. Mr. Reis stated that although requires site plan for buffers and setbacks, the CRMC will defer to town and local building regulations and that the house being in a V-zone would be required to be a pile-supported dwelling with an elevation of 16’ above. Mr. Fugate added that the CRMC recommends that the applicant take the maximum amount of freeboard (5’) elevation. There was discussion on the use of StormTools.
Mr. Affigne expressed concern regarding the waste water treatment system. Mr. Reis stated that all advanced systems are required to have a management and maintenance plan which would come into effect after a storm event if necessary. Mr. Beaudette asked if the system would affect the neighboring properties. Mr. Reis explained that the treatment system is 100’ from neighboring wells.
Ms. Reynolds inquired as to the protection of the well in case of flooding due to storm event. Mr. Reis stated that most drilled wells would not be affected by one storm as they are very deep.
Ms. Main presented her first witness, Christopher Sargent who was sworn in and identified himself for the record. Mr. Sargent described the subject property and that as the owner of the lot, he changed the plans to be environmentally responsible. Mr. Sargent stated that he had donated to local conservation efforts such as Save Long Pond and Sakonnet Preservation. Mr. Sargent agreed to a conservation easement.
Ms. Main presented her second witness, William Smith who was sworn in and identified himself for the record. Mr. Smith was recognized by the Council as an expert witness from previous Council dealings. Mr. Smith used plans to explain the proposed project and location of the house in regards to the abutting properties, including discussions on the rain garden and the wastewater treatment system which were all in accordance to CRMC and RIDEM regulations. Mr. Smith explained that DEM permits and local permits were in place as required.
Mr. Gomez asked about the cutting of the vegetation and trees on the property. Would mature maples be saved? Mr. Smith stated that they would try to keep as many trees as they can but can’t say they will keep all the trees.
Mr. Hudner asked if an alternative location was considered on the site. Mr. Smith stated that due to site constraints there was no room to do anything with town setbacks.
Ms. Main presented her third witness, Scott Rabideau, who was sworn in and identified himself for the record. Mr. Rabideau stated that he had prepared the application and narrative for CRMC and gave a brief explanation of the application history with the CRMC staff using aerial photos and plans and discussing how the house was reduced in size and the location of the house was determined. Mr. Rabideau believed that Section 120 was demonstrated and that CRMC staff agrees. Mr. Rabideau stated that the house would not cause significant adverse impacts, that the applicant utilized all best management practices such as using pervious driveway which is acceptable by RIDEM and CRMC. Mr. Rabideau stated that they put in all buffer zone markers and are providing screening vegetation such as northern white cedar and giant rhododendron.
Mr. Rabideau stated that Section 300 requirements were addressed with no comments from staff in staff report and he believes it meets requirements.
Mr. Rabideau stated that Rule 9 of Freshwater Wetland Requirements which are not as stringent as coastal rules were followed by avoiding the 50’ perimeter wetland but within the wetland for the construction of the driveway which minimized impact to the greatest degree practicable also using screening vegetation and stormwater standards.
Chair Livingston called a five minute break.
Chair Livingston resumed the meeting and called for any objectors to come forward.
There were three people present to object to the project and all three sworn in and identified themselves for the record: John marshal, Stephen Linder and Sharon Linder.
Mr. Marshal spoke in his capacity as neighbor on the northeastern boundary line on Sakonnet point road and also as the President of the Save Long Pond program. Mr. Marshall spoke of the programs dealings with CRMC in the removal of 50 acres of adult Phragmites through dealings with Caitlin Chaffee and the CRMC grant process. Mr. Marshall expressed his concern regarding the buffer and setback variance, the well and water main so close to the wetland edge and the flooding of the roads every spring. Mr. Marshall talked of setting a precedent.
Ms. Linder spoke of her dealings with CRMC in terms of doing Long Pond project that has been very successful to maintain the water quality of Long Pond. Ms. Linder stated that they had been on property for 34 years and during that time, when Mr. Sargent bought the land it was dryer and that in the time we have been there we have raised that road by over a foot but the road continues to flood every summer.
Mr. Affigne left meeting at 7:45
Mr. Linder stated that they had been through the CRMC review process to fix the road so it wouldn’t be flood but the road does flood every. Mr. Linder explained that during heavy storm events his concern is that the road will flood out. Mr. Linder discussed flood zone map and distributed these to Council. Mr. Linder also expressed concern regarding setting a precedent as well as the buffer and setback reduction. Mr. and Mrs. Linder spoke of a letter from the Little Compton Town Council to Mr. Fugate.
Ms. Deborah Ladd was sworn in and identified herself for the record and spoke in in support of the application as both a member of the town and a real estate agent.
Ms. Main called Mr. Rabideau back to speak about lot 12 which he stated was contiguous wetland to Type 1 waters and cannot be crossed and was addressed in staff report.
Mr. Beaudette asked Mr. Reis if there could be expectation that there would be wetland migration. Mr. Reis stated that the barrier beach separates tidal waters from Long Pond.
Mr. Gomez motioned approval with a conservation easement. Motion seconded by Mr. Hudner and Mr. Sahagian. Mr. Reis asked for a clarification to include the buffer zone and wetland. Mr. Gomez agreed.
Mr. Gomez began Council discussion stating that they were not discussing lot 12 only lot 9. Mr. Gomez stated that was worried about cumulative effects of this project and could possible start a precedent. Mr. Gomez stated that this was a unique site and he was very familiar with it. Mr. Gomez is concerned that if the application is denied it could be viewed as a “takings”.
Mr. Hudner spoke saying different issues that need to be balanced out between conservation and a property owner of long standing who has worked with staff and has been environmentally responsible. Mr. Hudner also expressed his concern of a “takings” but also expresses concern on setting a precedent. Mr. Hudner agreed with the conservation easement and agreed that the applicant had done enough work with staff and should be granted what he asked for.
Mr. Beaudette stated that his main concern was with the wastewater treatment system and that many of his questions have been resolved. Mr. Beaudette expressed concern regarding allowing the project in Type 1 waters, which is pristine waters with such a large variance percentage to CRMC regulations and could CRMC be setting precedent in this area.
Mr. Fugate stated that CRMC has been steadfast in its adherence that each application is judged on it own merits. Mr. Fugate agreed that there is concern with staff regarding the project being so close to Type 1 waters but that the dominant regulations were the freshwater wetlands regulations which allow for more flexibility. Mr. Fugate stated he did not feel that this would be a precedential site.
Mr. DeSisto stated that in looking at all issues that staff had brought to the Council on this project he did not have precedential value.
Chair Livingston asked for clarification of staff recommendation. Mr. Reis stated that the staff recommendation is a no objection but defer to the Council to hear from the applicant and objectors.
Mr. Sahagian began discussion and clarification of buffer and setback in regards to lot size. Mr. Fugate stated that the lot size governs the buffer size so the larger the lot the larger the buffer.
Chair Livingston explained why she would be voting against this project stating that buffer regulations were put in effect for a reason. Chair Livingston expressed concern regarding the road access flooding, the health of Long Pond, degradation of the environment and concern of sea level rise.
Mr. Gomez stated that the area of concern is a freshwater pond, not Type 1 waters and there is a huge barrier beach to the south
Chair Livingston called for a vote.
There were eight votes in favor and two votes to deny – Chair Livingston and Mr. Beaudette. Motion carried on a majority voice vote.
7. APPLICATIONS REQUIRING A PUBLIC HEARING FOR SPECIAL EXCEPTION REQUEST AND ARE BEFORE THE COUNCIL FOR DECISION:
2017-01-034 CITY OF WARWICK/RI DEM – DIVISION OF PLANNING & DEVELOPMENT -- Demolish and remove the remnants of the old Rocky Point Pier and construct a replacement facility consisting of: A fixed timber pier extending 281 feet from shore at a width of 20’ for the nearshore portion and 10’ for the offshore portion which terminates at a “T” head pier having dimensions of 110 feet long by 21’ wide oriented parallel to shore. A roofed shade structure 36’ long by 21’ wide will be constructed on the “T” head pier along with bench seating. The full build-out including the “bid 1 alternative” further proposes a series of aluminum ramps and gangways which will provide access to floating dock structures having 4 finger piers designed to provide the boating public with access to Rocky Point. A cast-in-place headwall is proposed to provide a connection between the existing walk way and the new pier. The proposed pier is designed in accordance with ADA guidelines for recreational fishing piers and marinas. The project requires a special exception for the construction of a recreational structure (wharf/pier) and/or a boating facility which meets the definition of a “marina” (accommodates 5 or more recreational boats) in Type 2 (Low Intensity Use) Waters. This project is located at plat 380, lot 287, Rocky Point – Rocky Point Avenue, Warwick, RI.
Mr. Gagnon an employee of the RIDEM and Ms. Reynolds an employee of the City of Warwick recused themselves.
Mr. Lucia gave a brief overview of the project stating that the City of Warwick and RIDEM were asking to demolish the old remnant Rocky Point Pier and construction of a replacement facility. The new facility would consist of a 281 feet long fixed pier terminating at a T-head section with a roof structure over the T. Mr. Lucia explained that ramps, floating docks and finger piers for public access boating. Mr. Lucia explained that a Special Exception would be required for the construction of commercial pier and/or marina in Type 2 waters. Mr. Lucia stated that the staff recommendation was “no objections” with a deferral to the Council for the special exception criteria #3. Mr. Lucia stated that staff believes that Criteria 1 and 2 have been met. Mr. Lucia explained that RIDEM would be providing information at the hearing about criteria #3 being met.
Mr. Lucia stated that there are three recommended stipulations – the first being coordination with the US Coast Guard; navigation aids, and dock lighting at the proposed site. Also, prior to construction, stamped engineers plan of the roof are required. One additional stipulation would be top the float with tie-off piles, cut-off at the elevation of the V-zone and Float V-board plus an additional one foot to keep the float in place in case of a storm event.
Chair Livingston asked if the main purpose of the pier was to be fishing. Mr. Lucia explained there would also be transient boating – a touch and go facility. Mr. Lucia confirmed that because more than five boats could be there at one time, the dock is considered a marina.
Mr. Beaudette asked if the dock would be used as a ferry commuter pier. Mr. Fugate stated that it was the original concept but no longer a consideration. Mr. Beaudette inquired as to the handicap access. Mr. Lucia stated that the parking area was wide enough, smooth enough and close to the pier. Mr. Beaudette asked about DEM fishing access. Mr. Reis stated that DEM would address that issue.
Applicants were called forward, identified themselves and were sworn in for the record.
Present for RIDEM: Lisa Primiano, Chief of the Division of Planning & Development; and Andres Aveledo, Engineer at the Division of Planning & Development.
Present for City of Warwick: Dan Geagan, Principle Planner
Ms. Primiano answered the question about accessibility by stating that RIDEM was working very closely with the City of Warwick and that a smaller parking lot closer to the facility was developed and that handicapped accessible parking would be available when the City of Warwick opened the main gates on Palmer Avenue this year. Mr. Aveledo stated that the plans for the main gate parking area were not referenced on the plan before the Council. Ms. Primiano stated that the development of the Rocky Point project was a very slow phase development and would evolve over time. Ms. Primiano also stated that DEM was in the process of getting a consultant for India Street fishing access (former Shooter’s property). Ms. Primiano stated that DEM has a very active public access program for fishing and boating and are continually looking across the State for access points to the public.
Chair Livingston asked about Special Exception Criteria #3. Mr. Aveledo explained that other locations were addressed within the property but all parties involved believed that the original location would have the least impact as; historically, there has been a pier there. Mr. Aveledo also stated that accessibility in terms of getting to the location from the park. Mr. Aveledo stated that due to no change throughout the entire rocky shoreline would have required a special exception.
Chair Livingston confirmed for Mr. Hudner that there were no objections in the file and that the exact date of a dock at this location is unknown. Mr. Hudner stated that he thought it was a great project.
Mr. Sahagian made a motion to approve the special exception based on staff recommendation and that the project serves a compelling public purpose. The motion was seconded by Mr. Gomez and Mr. Hudner.
Chair Livingston opened the public hearing.
George Schuster, the cofounder of the Rocky Point Foundation spoke in support of the pier construction.
Chair Livingston closed the Public hearing.
With a motion on the floor, Mr. DeSisto proceeded with a roll call vote.
Mr. Sahagian Yes
Mr. Hudner Yes
Mr. Gomez Yes
Mr. Coia Yes
Ms. Montanaro Yes
Mr. Affigne Yes
Mr. Beaudette Yes
Chair Livingston Yes
Mr. Sahagian motioned for the approval of the project, seconded by Mr. Gomez and Mr. Hudner.
Motion carried on a unanimous voice vote.
Ms. Montanaro motioned, seconded by Ms. Reynolds, to adjourn.
Motion carried on unanimous voice vote. Meeting adjourned at 8:15 p.m.
Lisa A. Turner