In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, September 12, 2017 at 6:00 p.m. in Conference Room A, Administration Building, One Capitol Hill, Providence, RI.

Members Present
Jennifer Cervenka, Chair
Raymond Coia
Ron Gagnon, DEM Rep Don Gomez
Jerry Sahagian
Trish Reynolds
Michelle Collie
Lisette Gomes
Joy Montanaro

Members Excused
Mike Hudner

Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
Dave Beutel, Aquaculture Coordinator
Amy Silva, Sr Environmental Scientist
Anthony DeSisto, Legal Counsel

1. CALL TO ORDER

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

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Chair Cervenka called for approval of the minutes from the previous meeting.

Mr. Coia motioned for the approval of the minutes from the July 25, 2017 Semimonthly meeting; seconded by Mr. Sahagian. Motion carried on unanimous voice vote.

4. SUBCOMMITTEE REPORTS

None were heard.

5. STAFF REPORTS

Mr. Fugate reported the following to the Council:

• Educational series on Beach SAMP
• Council co-sponsoring 2 science symposiums one of which will be on wind energy to be held in
  November.
• Mr. Gomez talked about the dedication of the UCG the previous week in Providence at ProvPort.

5. APPLICATION REQUESTING EXTENSION OF ASSENT BEFORE THE COUNCIL:

2004-03-041 CAPITOL PROPERTIES – Extension of Assent to construct and maintain two (2) 4.5 story residential/apartment buildings (263 units total) with ground level retail space and underground parking areas (374 spaces total), associated infrastructure, stormwater management and landscaping, per approved plans. The Assent was modified in May of 2017 to include modification of building design with regard to height and exterior wall configuration (footprint); providing 169 apartments and a parking garage for 168 cars with 4 exterior parking spaces; modification to entrance. This project is located at plat 4, lot 262; 80 Smith Street, Providence, RI.

Present for applicant was Attorney Robert Stolzman. Mr. Stolzman explained that the applicant requested the fourth extension as the work being done would not be completed on time under terms of the permit (property at corner of Smith and Canal Streets). Mr. Fugate asked and was given a guarantee that the outside structure would be done within the year. Mr. Sahagian motioned for a one year extension with added language from Mr. DeSisto. Mr. Gagnon seconded the motion. Chair Cervenka asked if the permit had extended through the tolling period. It was confirmed that the applicant had the timeframe through the tolling period.

The motion to approve the extension was approved on a unanimous voice vote.

6. APPLICATION REQUESTING MODIFICATION OF ASSENT BEFORE THE COUNCIL:

2001-02-026 JOHN & CINDY WEST -- CEDAR ISLAND OYSTER CO. -- Modification to: expand an existing float on their 50’ x 50’ lease to include two 8’x20’ upwellers and an 8’x20 raft to house solar panels. The raft size currently permitted is 720 square feet. The expansion, if approved, would result in a profile of 1088 square feet. Located in the Point Judith Pond, Narragansett, RI.

Mr. Beutel gave a brief overview of the application explaining that although the floats would change it stays within the lease area thereby not needing a lease change. Mr. Gomez pointed out that there were no objectors and that the project seemed reasonable and efficient without causing risk to oyster seed. Mr. Beutel stated that there were two other sites in the area that use upwellers.

The applicants thanked the council for the commitment to environmental efforts and explained to Council that the marina changed from a public use marina to a private dockominium and they had opportunity to keep working there.

Mr. Gomez’s motion to approve was seconded. Chair Cervenka stated that although there was potential for visual impacts, there were no objectors, and she did not have a problem with it.

The motion was carried on a unanimous voice vote.

7. APPLICATIONS REQUIRING A PUBLIC HEARING FOR SPECIAL EXCEPTION REQUEST AND ARE BEFORE THE COUNCIL FOR DECISION:

2012-10-036 FORT NINIGRET WATERFRONT ASSOCIATION -- Construct and maintain: a residential boating facility consisting of a 2’ x 3’ access ramp, a 4’ x 15’ fixed pier, a 3.5’ x 10’ ramp and two 5’ x 15’ floats. A variance to RICRMP 300.4.E.3.K is required (facility is within 25’ of extension of abutting property lines). The facility will extend 44’ beyond Mean Low Water. The facility will be utilized by a Homeowner’s Association. Staff has recommended that the application may require a Special Exception to Section 300.4.A.3, requiring residential boating facilities to be “contiguous to a private residence, condominium, cooperative or other home owners association properties..”. The final determination shall be made by the Coastal Council. Located at plat 12, lot 75; Fort Ninigret Road, Charlestown, RI.

Chair Cervenka recused herself. Mr. Gomez sat in as Chair.

Ms. Silva gave a brief overview of the application stating that the residential boating facility would be built at the end of Fort Ninigret Road, but that there was no street access to this property. Ms. Silva explained that the application hand been before the Council in 2015 as residential facility for one homeowner and the application was found to not be connected to property and therefore could not be considered as a residential facility which was not eligible for variance, therefore, it required a special exception. The applicant changed and became Fort Ninigret Waterfront Association (homeowner’s association) and the association resubmitted their application. Ms. Silva stated that according to CRMC regulations, homeowner’s associations are subject to the same regulations, and CRMC staff does not believe that this is contiguous to homeowner’s association property. The homeowner’s association did not ask for a special exception because they are challenging staff’s interpretation of the regulations.

Attorney Andrew Teitz was present to represent the applicants, Robert Krause and Brandon Cleary, Fort Ninigret Homeowner’s Association members.
Mr. DeSisto clarified how Ms. Silva came to her measurement of distance of properties to the dock lot as Mr. Teitz disagreed with Ms. Silva’s measurements. Mr. DeSisto stated that he disagreed with the case law that was submitted with Mr. Teitz’s supplemental packet.

Mr. Teitz began by stating that the application to construct a dock did not require a special exception from RICRMP regulations. Mr. Teitz explained that the relevant point is the boundary of Fort Ninigret Park and the fact that the road is one parcel within the boundary of the property as DEM does maintain the road so essentially what you have is 2 lots abutting public property that also abuts the dock lot, so that’s what I will focus on. If that’s where Council is going factually, it will be determined by road and DEM property.

Mr. Gomez stated that it was his opinion that a special exception was needed.

Mr. Krause spoke stating that the dock would be used recreationally and mostly be kids as they play on that lot now.

Ms. Silva stated that there was no proof that historically there had been a permitted facility there other than two photos with a dock present in the photo from 1952 and approx. 1971. Other than the photos, there is no documentation that there was a dock there for any duration of time.

Michael Jarbeau from Save The Bay submitted comments. Mr. Jarbeau stated that Save The Bay’s comments were in line with Mr. DeSisto’s comments, and that DEM had not addressed any other issue in proposal other than setback variance in their letter of no objection. Mr. Jarbeau stated that Save The Bay supported denial of the permit.

Mr. Teitz explained that the DEM letter is specifically a letter of no objection to the setback. Mr. Teitz also stated that in conversations with DEM, it was clear that they asked that the homeowner’s association abide by rules of the park.

Mr. DeSisto explained to Council that they needed to decide if Special Exception would be required or not before they voted to approve or deny.

Mr. Sahagian stated that the Council needed to define what an association dock is, and what the burden is to apply for an association dock. Are there ramifications of approving it and would they be setting a precedent. Mr. DeSisto stated he did not think it was precedent setting, but needed to have findings of fact. After considering the different ways to interpret contiguous, and recognizing that the applicant did not have any other option but to apply as an association, Mr. Sahagian motioned that the project did not require a Special Exception based on facts presented and the approval of other association docks without contiguous properties.

Mr. Gagnon asked where the difference is between the original dock and the association dock. Amy stated that the only difference is in the ownership of the dock property, which is owned by a Homeowners Association, the residential lots and the dock lot are all a part of the association.

Ms. Reynolds and Ms. Montanaro asked for clarification on the dock lot ownership. Mr. Teitz confirmed that in 1942 the lot was purchased to link the lots for boating access. Mr. Cleary stated that the parcel was deeded to be used as a boating facility.

Motion was reiterated and seconded. A roll call vote was done with an outcome of five (5) – Mr. Coia, Mr. Sahagian, Ms. Reynolds, Ms. Collie, Ms. Gomes -- in favor that the proposal did not require a special exception and three (3) -- Mr. Gagnon, Ms. Montanaro, Mr. Gomez -- voted that the proposal did require a special exception. The project did not require a special exception.

The application was then considered for the approval of the dock which required a variance from both abutting properties because of dock size. Mr. Fugate stated that the dock property and the residences would need to be linked together such that there could be no separation. There were signoffs submitted from both affected abutting property owners. The staff report stated that there was no objections to the dock itself. The dock would service four boats for the two members of the homeowner’s association.

Mr. Coia motioned to approve the dock with Mr. Fugate’s request for properties to be linked. The motion was seconded by Mr. Sahagian.

Motion carried.

 

8. ADJOURN

Mr. Gomez motioned, seconded by Mr. Coia to adjourn.

Motion carried on unanimous voice vote. Meeting adjourned at 8:05.

Respectfully submitted,

Lisa A. Turner
Recording Secretary

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