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RI Coastal Resources Management Council

...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, August 28, 2018 at 6:00 p.m. in Conference Room A, Administration Building, One Capitol Hill, Providence, RI.

Members Present
Jennifer Cervenka, Chair
Raymond Coia, Vice Chair
Don Gomez
Jerry Sahagian
Trish Reynolds
Joy Montanaro
Mike Hudner
Lisette Gomes

Excused
Ron Gagnon, RIDEM
Michelle Collie

Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
Rich Lucia, PE, Spv Civil Engineer
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 minutes:

  • July 24, 2018
    • Motion: Vice Chair Coia
    • Second: Mr. Hudner
    • Motion carried on a unanimous voice vote

3. SUBCOMMITTEE REPORTS

None.

4. STAFF REPORTS

Mr. Fugate reported on the following:

  • Coastal States Organization, which is comprised of 34 participating coastal states, will be holding a conference in Providence, RI on October 15th. Discussions will be coastal policies at the federal level. Information will be sent to each member via email. Please notify CRMC staff if you would like to attend.
  • Army Corps of Engineers has released their Final Report on the Pawcatuck Study. Mr. Fugate explained that answering a federal mandate, a study was completed by coastal states to look at the damage from Superstorm Sandy to determine which area was the worst hit and which area would benefit from flood reduction projects such as the “elevation of structures” in flood areas. ACOE identified 300 structures that would benefit and it would be feasible to conduct an “elevation of the structure” project. Mr. Fugate explained that the ACOE is proposing to provide 65% of the cost if the homeowner chose participate, however, a nonfederal sponsor would be needed for the remaining 35% of the cost. Mr. Fugate explained a few options as to where the 35% could come from such as local communities and State and that the Governor’s office was looking into solutions as well.

5. CRMC ASSENT B2012-09-065 DEEPWATER WIND -- STATUS UPDATE:

-- Grover J. Fugate, Executive Director, CRMC

As stipulated in the DWW Block Island permit, DeepWater is required to retain a CVA in place to act as building inspector and to be kept apprised of every repair required on the site during the year. This would include maintenance on turbines to make sure that they are functioning properly and still at peak capability.

The Operations Verification Report 2017 was received and we will make sure the Council gets the reports as part of email.

6. CHAIR CERVENKA EXPLAINED A FEW CHANGES TO THE AGENDA:

Enforcement Case Before The Council For Order To Restore:

2017-047 BUZ & CYNTHIA GARDINER – Restoration of unauthorized alteration of the buffer zone and wetland on your property located at Plat N-R, Lots 1229,1230, 120 Allagash Trail, Narragansett without benefit of a CRMC assent.

Mr. Willis reported to the Council that Mr. Gardiner had retained legal counsel on Monday, August 27, 2018 and that a continuance was requested to allow them time to better understand the case. Mr. Willis explained that throughout the enforcement procedures, Mr. Gardiner decided he did not want to cooperate with CRMC on a restoration of the buffer zone. Mr. Willis confirmed for Vice Chair Coia that the property remains in nonconformance now and each day until the next hearing date of September 11, 2018.

Vice Chair Coia motioned to ratify the staff’s decision to continue the Restoration Hearing until September 11, 2018. Mr. Hudner seconded the motion. The motion to ratify was carried on a unanimous voice vote.

Permit Revocation:

2017-10-080 CARNEGIE ABBEY CLUB -- Show cause why the Marina Permit should not be revoked due to failure to pay CAD cell fee. Located at Plat 26, lot 2C, 4-15; 379 Willow Lane, Portsmouth, RI.

Mr. Willis gave a brief explanation of the situation stating that the Cad Cell fee from dredge material deposit had not been paid and that 2/3 of the balance had been due. CRMC scheduled them for a Show Cause hearing to explain why they did not pay and talk about the possibility of revoking their marina assent. Mr. Willis explained that a check for the full amount owed was received by CRMC offices on Monday, August 27, 2018.

Mr. DeSisto explained that the representative of the Carnegie Abby Club, Buttonwood Acquisition, was non-responsive to CRMC’s requests for payment. Mr. DeSisto also explained that there was not a regulation that would allow CRMC to assess a penalty for non-payment other than revocation of their permit.

Mr. Fugate explained how the Cad Cell fee was assessed and stated that this was the first time since the process had started that someone did not pay; and, that it if happened again, we would look at other options and methods for payment schedules.

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

2018-02-061 SCOTT’S WHARF LLC -- Redevelop the site as a mixed-use facility housing a boutique hotel, a restaurant, and retail and office space. The facility will include covered and open parking spaces (166 spaces total) and will provide dedicated public access in the form of a pedestrian path along the water. Also, fill an existing boat ramp and associated tidal waters to accommodate the construction of a stormwater treatment facility (bioretention area) designed to treat a portion of the stormwater runoff associated the redevelopment proposal. An open-air elevated deck accessible from America’s Cup Avenue will also be available to the public. Public access improvements are proposed to compensate for the filling of tidal waters and for commercial redevelopment of the site. Located at plat 276, lot 77, 78; west of America’s Cup Avenue, Newport Harbor Waterfront, 4 Commercial Wharf, Newport.

Mr. Reis briefed the Council on the project stating that the applicant was proposing to:

  • redevelop the site into a mixed use facility housing a hotel, restaurant, retail space, office space, and
    166 covered and open parking spaces;
  • dedicated public access in the form of a pedestrian path along the water;
  • fill an existing boat ramp and associated tidal waters to accommodate the construction of a
    stormwater treatment facility (Bioretention area);
  • open-air elevated deck accessible from America’s Cup Avenue will also be available to the public;
    public access improvements are proposed to compensate for filling of tidal waters and commercial redevelopment on the site.

Mr. Reis explained that the project which included the filling in tidal waters required a Category B review by staff and was put out to notice on March 27, 2018. Mr. Reis explained that during the Notice period two objections were received from Save the Bay and from the Friends of the Waterfront objecting to the bifurcation of the application. Based on the objections, and further staff review, an amended notice was put out for 20 days from July 13, 2018 ending on August 2, 2018. Save the Bay and Friends of the Waterfront submitted amended objections.

Mr. Reis explained that the two main issues was the filling of tidal water and the agreement to provide for Public Access.

Mr. Reis explained that specific criteria needed to be met to allow the filling of tidal waters in Type 5 waters. Mr. Reis further explained the criteria and CRMC viewpoint:

1. Fill is made to accommodate a designated priority use for that water area.

a) water dependent and water enhanced commerce such as catering to tourists is proposed;
b) CRMC disagrees with STB objection that the project fails to qualify as “water enhanced
commerce”.

2. All reasonable alternatives have been examined and the Council has determined that the selected
alternative is the most reasonable.

a) the boat ramp provides the lowest point that can accept runoff from the surround impervious
areas;
b) staff agrees using a manmade boat ramp that no longer serves the redevelopment proposal is a
reasonable alternative for stormwater treatment.
c) Fill not only to support the Bioretention area but also for support of the hotel construction
d) Staff defers to the Council on this point.

3. Filling is the minimum to support the designated priority use.

a) Staff biologist considers the proposed filling minimal with regard to impact to tidal waters

Mr. Reis explained the public access plan which was provided by the applicant which meets the requirement when filling of tidal waters and commercial redevelopment occurs. The Public Access pathway will connect with the Newport Harbor Walk on Commercial Wharf. The applicant would like to suggest public access from Dawn to Dusk which coincides with the Newport Harbor Walk time schedule. This will be stipulated in the assent.

Mr. Reis explained that Sea Level Rise was considered when reviewing this project through
“StormTools”. Mr. Reis stated that the applicant responded to staff concerns of flooding by raising the grade of the lower level parking garage based on the project life of the facility which is approximately 30 years. Mr. Lucia agreed that the additional elevation of the parking garage, suggested by staff, would be beneficial to the project due to the age of the City’s stormwater system.

Mr. Reis explained that he discussed landscaping of the redeveloped area, and that due to the lack of buffer zone, staff recommends the planting of small shade trees along the landward side of the public walkway. Mr. Reis also recommended tree planters as either stormwater collection or adding green to landscape.

Mr. Reis stated that based on information review and evaluated by staff, there is no objection to the proposed project with specific staff stipulations. Mr. Reis further explained, confirmed by Mr. Fugate, that if the Council did not agree that the criteria for filling in tidal waters had been met, the application would require a special exception as the project would be considered prohibited.

Mr. Reis stated that due to submitted objection staff deferred to Council and explained the objections submitted by Save The Bay and Friends of the Water Front.

  • Save The Bay’s primary contention is that the project does not meet the criteria for Type 5 waters.
    • Mr. Reis stated that CRMC believes that the project as proposed does fit that definition and meets the criteria as it is water enhanced commerce.
  • Friends of the Waterfront’s primary contention is shoreline access
    • Mr. Reis explained that an agreement was made and objection has been addressed. The
      applicant intends to maintain shoreline access to the Newport Harbor Walk through an affiliated project.

No Council questions to staff at this time.

Representing the applicant was Attorney Sean Coffey of Burns and Levinson, Sam Bradner, Project Manager at Peregrine Group LLC, Neil Galvin, Esq. and witnesses: Gary Deblois and Ashley Iannuccilli. Sam Bradner, Gary Deblois, and Ashley Iannuccilli were sworn in and identified themselves for the record.

Mr. Coffee addressed the Council and stated that staff outlined the project nicely and added that if Council had any questions, he and Mr. Bradner, as well as the other witnesses present, were available to answer questions.

Chair Cervenka inquired as to objectors present:

  • Mike Jarbeau of Save The Bay
  • Mike Ruben representing Friends of the Waterfront

Mr. Coffey explained that in the event of an approval the assent and the access documents would be vetted with the City Solicitor and recorded in the land evidence records at the same time. Mr. Coffey stated that the applicant was concerned about a few assent conditions after reviewing staff reports. The applicant does not feel that a variance to buffer zone regulations is required. Mr. Reis explained that the coastal buffer would provide greening of the coast way which could include more planting such as potted trees, shrubbery, or vegetated areas. Mr. Coffey was concerned that boxed trees would interfere with the berthing areas for boats. Mr. Fugate stated that there were many innovative ways to achieve additional green on the property such as green roofs, green walls, or green inside the facility with stormwater directed in the plants. Mr. Coffey stated that the applicant would be happy to enter into discussion with staff to get more green. Chair Cervenka stated that greenery options could be a condition of the approval.

Mr. Sahagian suggested the Council decide how they would be hearing the application. Mr. DeSisto agreed that the Council should decide if the applicant has sufficiently provided burden of proof for filling in Type 5 waters. Mr. Coffey stated that the boat ramp was constructed in the 1960s and that they did not consider a manmade steel boat ramp to be tidal waters of the state – filling it and providing access would be more beneficial to the City. Mr. Galvin went on record stating the public access would go into effect as soon as the southern property is permitted.

Mr. Ruben spoke on behalf of Friends of the Waterfront stating that their concerns were satisfied over the subject of public access as their requests have been met and exceeded.
Mike Jarbeau, who was sworn in and identified himself for the record, spoke on behalf of Save The Bay stating that their concerns were with filling in tidal waters of the state.

Mr. Sahagian motioned, based on staff recommendation and expert witness testimony that all criteria had been met for Category B review. Mr. Hudner seconded the motion. Motion carried on a unanimous voice vote.

Mr. Bradner offered to answer any questions the Council had.

Mr. Deblois testified that he agreed with statements that have been given and by the reports of Mr. Reis and Mr. Lucia. Using a Demonstrative exhibit, Mr. Deblois explained his plan for the Bioretention area and the proposed filling of the boat ramp. Mr. Deblois stated that no pervious pavement would be used on the project.

Ashley Iannuccilli, RLA, explained how the City was working to provide greenery along America’s Cup Avenue using shade trees, plantings and vegetative beds. Ms. Iannuccilli explained that the boat show took up most of the space and that it would not be possible to put permanent trees in that area. Mr. Fugate asked for the percentage of green vs the total site development. Mr. Deblois stated that it was 95% impervious. Ms. Iannuccilli stated that they had added additional planters on the deck. Mr. Fugate stated that the CRMC was looking for at least 15% greener on site. Chair Cervenka asked if Ms. Iannuccilli agreed to continue discussions with CRCM staff on additional greenery. After discussion on variance options, Mr. Coffey agreed that the applicant would work with CRMC staff on more landscaping/greenery.

Mr. Galvin asked for further streamlining and identification of public access for Friends of the Waterfront. There was discussion on whether or not public access is conditional. Mr. Ruben discussed with Council the daily timeframe public access would be allowed stating that the option was sunrise to sunset. Mr. Ruben’s concern was that during the fall and winter that would be cut by a few hours due to shorter days and asked that the timeframe by no shorter than 8 a.m. to 5 p.m. Mr. Coffey asked that the timeframe be kept to Sunrise to Sunset as is the hours for the entire boardwalk.

Chair Cervenka closed the public comment period.

Mr. Hudner motioned for the approval of the project with additional staff stipulations, further greening of the project pursuant to concepts under the Urban Coastal Greenway Regulation (as opposed to CRMP), granting of public access and labeling of final plans for future access in fill area. Mr. Hudner praised the staff stating that the staff report was exceptionally well written and very informative. The applicant asked for permit and deeds in escrow. Attorney DeSisto clarified that the assent would not be issued until those conditions were met. Mr. Gomez seconded the motion.

The motion carried on a unanimous voice vote.

10. EXECUTIVE SESSION § 42-46-5(2) – Potential Litigation, Ocean SAMP

Motion to enter into Executive Session:
Motion: Ms. Reynolds
Second: Ms. Montanaro

Roll call vote:
Ms. Gomes Yes
Mr. Hudner Yes
Mr. Gomez Yes
Vice Chair Coia Yes
Chair Cervenka Yes
Ms. Montanaro Yes
Ms. Reynolds Yes

Motion to enter in Executive Session was carried on a unanimous roll call vote.

The Council entered Executive Session at 7:45

  • No votes were taken

Move to close Executive Session:
Motion: Vice Chair Coia
Second: Mr. Gomez
Motion carried on a unanimous voice vote.

Motion to seal the minutes:
Motion: Vice Chair Coia
Second: Mr. Gomez
Motion carried on a unanimous voice vote.

7. ADJOURN

Motion to Adjourn:
Motion: Vice Chair Coia
Second: Mr. Gagnon
Motion carried on unanimous voice vote.

Meeting adjourned at: 6:39

 

Respectfully submitted,

Lisa A. Turner
Recording Secretary

 

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