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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, September 25, 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
Ron Gagnon, DEM Rep
Joy Montanaro
Trish Reynolds
Lisette Gomes

Excused:
Mike Hudner
Jerry Sahagian
Michelle Collie

Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
Laura K. Miguel, Principal 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 minutes:

  • September 11, 2018
    • Motion: Vice Chair Coia
    • Second: Mr. Gomez
    • Motion carried on a unanimous voice vote

3. SUBCOMMITTEE REPORTS

None.

4. STAFF REPORTS

Mr. Fugate reported on the following:

  • The Coastal States Organization (CSO) Conference is scheduled for Monday, October 15th through Friday, October 19th. It is anticipated that 80 people would be in attendance from at least 34 coastal states also including Puerto Rico, Virgin Islands and Guam.
    • The topics of discussion on Thursday, October 18th might be of interest to the Council members and that if anyone wanted to attend, please contact CRMC staff.
    • Mr. Fugate would be speaking on Thurs, October 18th as well.

5. 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.

Attorney Nicole Martucci of Kelly, Souza, Rocha & Parmenter P.C addressed the members of the Council asking that the Gardiners be granted a third continuance of hearing as they had retained their environmental consultant within the last two weeks and that a site evaluation had just been performed
the previous day. Ms. Martucci stated that it was the client’s belief that the 1992 wetlands determination was no longer valid pursuant to DEM regulations which state that any wetlands determination prior to April of 1994 is no longer valid. Ms. Martucci stated that it was the opinion of their environmental consultant, Brandon Faneuf, based on his site inspection on September 24, 2018 that there are no wetlands on the Gardiner’s property and that he would be able to present his findings in a written report if a continuance was granted by the Council. Ms. Martucci stated that the means of determination of the presence of wetlands had become more technical since 1992 and that it may be found that an enforcement hearing would not be needed. Ms. Martucci stated that if given two more weeks the consultant’s report could be submitted and CRMC would be able to conduct another site inspection.

Chair Cervenka asked why the Gardiners had not filed a modification to their 1992 CRMC assent or submitted a declaratory judgement to the Council to seek relief of the delineation rather than disregarding CRMC staff orders. Ms. Martucci stated that the information that the property did not contain wetlands was just brought to light and once they have a written report from Mr. Faneuf, they can determine their course of action regarding the outstanding notice of enforcement. Chair Cervenka clarified through Ms. Miguel that the Gardiners were in agreement with their 1992 DEM delineation at the time of issuance. Ms. Miguel confirmed that the DEM permit was incorporated into a CRMC permit and that neither permit had expired.

Mr. Gomez inquired as to the involvement of Scott Rabideau of Natural Resource Service who was known to and appeared before the Council as an expert witness on previous cases. Ms. Martucci explained that Mr. Rabideau had been involved in discussions with CRMC and Mr. Gardiner regarding a restoration plan until July 31, 2018. Ms. Martucci also stated that Mr. Rabideau did not make any wetland determination recently but was relying on the information from the original 1992 determination. Ms. Martucci further explained that Mr. Rabideau was helping with the restoration plan.

Mr. Gomez asked if RI DEM got involved with the demarcation of the wetland area. Ms. Martucci stated that the Gardiners did submit an application to RIDEM for the written determination of the existence of wetlands in 1992 and that DEM determined that wetlands were present. Ms. Martucci stated that the standards used were more liberal and less accurate and that in the early 1990’s wetland determination was done by visualization of wetland vegetation and not as it is done now by scientific soil-boring testing. Ms. Martucci stated that DEM Rules and Regulations for the Freshwater Wetland Environmental Assessment specifically say that those determinations of wetland in the 1990’s were no longer valid.

Ms. Miguel spoke to this topic stating that the wetland delineation plan that was approved by the DEM permit and the CRMC 1992 permit was provided by Natural Resource Services. Ms. Miguel also pointed out that to say that if wetland determinations prior to 1994 we no longer valid, that would call into question all DEM permits that were issued in the early 1990’s. Ms. Miguel also stated that we need to rely on that permit for wetland delineation due to the fact that there has been 25 years of alteration of the site.

Chair Cervenka again asked why the Gardiners did not seek relief from the CRMC if they had knowledge or belief that there were no wetlands on their property. Ms. Martucci stated that the Gardiners did not believe there were significant alterations to their property. Ms. Martucci stated that there was no notification prior to 2017 that there was a violation of previous permits. Chair Cervenka explained that it is the responsibility of the property owner to comply with their assent and not up to CRMC to monitor properties for compliance. The burden is on the property owner.

Mr. Gagnon clarified that while DEM had jurisdiction in 1992, CRMC now has exclusive jurisdiction over freshwater wetlands in the vicinity of the coast. Ms. Martucci invited the CRMC staff to the Gardiner property to determine the presence of wetlands.

Chair Cervenka expressed her concern that the Gardiners approach to this situation was backwards. The Gardiners ignored CRMC orders and requested many continuances when this should have been done in a cooperative manner by applying to modify their permit. Instead CRMC is forced to employ all resources of enforcement. Chair Cervenka also pointed out that the Continuance fee had not been submitted with the first continuance request and that there did not seem to be any cooperation from the Gardiners up to this point. Chair Cervenka explained that the CRMC enforcement staff is relying upon an assent that was sought and agreed to by the Gardiners not a decision that imposed upon them by DEM or CRMC and that if the Gardiners needed relief from the decision that was made based on their application submittal a request to modify that decision should have been sought.

Ms. Martucci stated that the Gardiners appreciated the previous continuances granted by the Council and agreed that amending the Assent was the way to approach the situation. Ms. Martucci stated it was not their intention to delay the matter. Ms. Martucci was also unaware of a Continuance fee or the nonpayment of the continuance fee. Ms. Martucci explained that the Gardiners defense would be that there was no significant alteration to a wetland as there is not wetland on their property; and, a separate action would have to be taken to amend the original assent.

Mr. Willis clarified that what is before the Council at this time is the noncompliance to an existing assent and that the wetlands issue is separate. Mr. Willis pointed out that the buffer zone was not in compliance and that noncompliance with the assent was the enforcement issue. Mr. Willis stated that CRMC staff has been trying to rectify the non-compliance issue to no avail, and that is why it is before the Council – noncompliance to an existing Assent. Mr. Willis stated that the continuance fee was discussed with Mr. Kelly’s office through Administrative staff and Mr. Fugate added that it is also part of the Fee Schedule in the CRMC Management Procedures. Ms. Martucci stated that they would pay the first and second continuance fee but that it was the first they were hearing of it.

Chair Cervenka encouraged Council members to ask questions.

Mr. Gagnon stated that other violations were on the property aside from the alteration to the wetlands and that those violations still needed to be corrected.

Chair Cervenka asked if the applicant was seeking a continuance on the entire matter. Ms. Martucci responded by saying that the request was made in good faith and that the Gardiners were not trying to delay the process but that they would like to work with the Council to get a resolution that makes sense for everybody. Chair Cervenka stated that it was her understanding that the Gardiners engaged Counsel 3-4 weeks ago, that the Council does not believe that the Gardiners were acting in bad faith but that the Council need to see if there is good cause to approve the continuance request.

Chair Cervenka stated that she does not feel that there has been good cause shown due to the backward way of going about this especially with a wetland delineation that you have been aware of for over 25 years.

There were no further questions from Council for Ms. Martucci and the public hearing was closed.

Mr. Gagnon asked for clarification if the continuance was not granted.

Ms. Miguel informed the Council that the violation was issued in December of 2017. Ms. Miguel stated that usually the enforcement staff uses the winter months to work with the owners for resolution which then begins the Spring planting season. Ms. Miguel explained that if we continue again there will be two growing seasons without resolution.

Mr. DeSisto answered Mr. Gagnon stating that if the continuance is not granted, the matter would go forward on its merits.

Based on the substantial evidence contained in the staff report, Mr. Gomez motioned to deny the request for continuance. Ms. Reynolds seconded the motion. Motion to deny request for continuance carried on a unanimous voice vote.

Ms. Miguel gave an overview of the enforcement timeline:

  • October 23, 2017 -- The Gardiners submitted a Preliminary Determination Request for the feasibility of an addition. The plan submitted showed significantly different wetland edge from what was delineated in 1992.
  • December 5, 2017 -- Cease and Desist Order 17-0147 was issued.
  • December 12, 2017 -- Ms. Miguel spoke with Buz Gardiner. He stated that he was out of state and not available. Mr. Gardiner agreed to contact Ms. Miguel by Feb 1, 2018.
  • March 7, 2018 -- Ms. Miguel sent correspondence to M/M Gardiner requiring a restoration plan by April 15, 2018.
  • March 15, 2018 -- Ms. Miguel was contacted by Scott Rabideau from NRS SR Mr. Rabideau indicated that he was going to assist Buz Gardiner on this matter.
  • Following several extensions to deadlines and many requests by Laura as to the status of restoration plan, deadline of July 31st for the submittal of a complete application, restoration plan or combination of the plan was given.
  • July 31, 2018 -- Email from Scott Rabideau which is attachment H saying that the Gardiners were not going to pursue a restoration plan or an application. Scott Rabideau advised them to hire an attorney because the matter would likely be forwarded to the Council. Ms. Miguel stated that there has been no progress toward resolution in 9 months.

Chair Cervenka questioned meaning of complete application and Ms. Miguel clarified that all informational and physical application materials had to be submitted and all fatalities met. Ms.Miguel expressed her frustration at the lack of cooperation of the Gardiners over the nine month period from December to September.

Ms. Miguel clarified for Vice Chair Coia the communications between CRMC and Mr. Gardiner stating that on December 12, 2017 Mr. Gardiner called in response to the Cease and Desist Order. Mr. Gardiner stated he was out of State and that he would call again in February when he returned. Ms. Miguel stated that from that point on she was only contacted by Scott Rabideau.

Chair Cervenka asked Ms. Miguel to cite the violations on the Gardiner property. Ms. Miguel referred the Council to their packet that had the Cease and Desist Order which was issued on December 5, 2017 and the two Notices of Administrative Fine which were issued to both Buz and Cynthia Gardiner. Ms. Miguel stated that the Gardiners were not cited for the driveway and deck at that time as it was her understanding that they were working towards a resolution with Scott Rabideau.

Ms. Miguel stated that the Gardiners options were a complete restoration and a separate application for the deck and driveway or a partial restoration with an application for deck and driveway. Ms. Miguel stated that she received a draft conceptual plan on June 25th indicating how they planned on approaching the resolution of the violation.

Ms. Miguel explained to the Council that after 25 years of alteration to the property, a soils test would not give accurate results as to the validity of a wetland delineation from 1992.

Ms. Martucci began her presentation to the Council clarifying that she would be focusing on the subject of the Cease and Desist Order which was the undertaking of alterations to a wetland at Plat RN, lots 1229 and 1330; One Allagash Trail. Ms. Martucci introduced Mr. Faneuf and the property owner Mr. Gardiner who were sworn in and identified themselves for the record as Buz Gardiner and Brandon Burke Faneuf of Ecosystems Solutions who talked of his credentials and 20 years of experience in wetland science, wildlife habitat evaluation, stormwater systems, erosion sediment control in the land development industry.

Mr. Faneuf explained that he was retained in 2016 to make wetland determination on property by the Gardiners. Mr. Faneuf stated that there was a very small wetland in the very back of the property but mostly off the property. Mr. Faneuf stated that he had made a site visit over the past week and that he made observations of vegetation, done soil morphology testing and surface hydrology. Mr. Faneuf explained that he took soil cores with an auger in their back yard and found no evidence of hydric soils. Mr. Faneuf admitted that he had not done any permit research on the property prior to his site visit. Mr. Faneuf stated that based on his findings in 2016 and from his visit the previous week, the Gardiners did not have wetlands in their back yard; however there is some wet area in the very back of the property – either a stream or area subject to storm flow. Mr. Faneuf explained that in 1992 when the original wetland delineation was conducted, the hydric soil standards were being developed and there was more reliance on vegetation. Mr. Faneuf stated that there was hydrophytic wetlands vegetation -- black gum and red maple shade trees -- in the backyard. Mr. Faneuf testified that the method of wetland delineation in 1992 was less accurate than the testing standards used today. Mr. Faneuf stated that when there is an increase in drainage in an area, the wetlands get bigger because there is more water. Mr. Faneuf stated that the watershed from the drainage area was flowing towards the Gardiners property but there was no evidence of wetlands on their property.

Chair Cervenka asked Mr. Faneuf whether or not he made a determination that the improvements made by the Gardiners in the area of the back yard were in fact violative of the wetlands as determined by NRS in 1992. Mr. Faneuf answered if you go strictly by that determination in the assent in 1992 then the answer is yes.

Mr. Fugate asked if Mr. Faneuf had given the Gardiners the determination he made in 2016. Mr. Faneuf stated that he had but that his determination was not part of the subsequent application that was submitted to CRMC. Mr. Faneuf stated that when he questioned the Gardiners about rehiring Mr. Rabideau, Mrs. Gardiner stated that Mr. Rabideau had done the initial assessment and they decided to call him but that Mr. Rabideau had backed out. Mr. Faneuf agreed to do another determination and that if his findings led to a potential wetlands location change, he would testify for them. Mr. Faneuf stated that unfortunately he did not have enough time to write his report on his findings.

Mr. Fugate asked about the two lots involved and if they had been merged by the town. Ms. Martucci stated that the lots had not been merged. Mr. Fugate asked about the application to expand the house onto the second piece of property. Mr. Gardiner stated that if the approval was given they would have merged the two properties. Mr. Fugate asked Mr. Faneuf how many test holes he made. Mr. Faneuf explained that he made five test holes at different areas of the property – two in the back lot where the 1992 wetlands is located, two on the front lot and one on the property line.

Mr. Fugate stated that given today’s conditions the expectation would be to see only two out of the three hydric tests as the hydrology would have been changed due to what has been done on the site. Mr. Faneuf stated that it would depend on what alterations had been done, which includes land clearing activities but that the large trees are still present. Mr. Faneuf stated that the understory had been turned into lawn with a few ornamental shrubs and small trees planted. Mr. Faneuf stated that there is a certain amount of fill material or grading that had been done but no fill had been brought in from off site.

Mr. Fugate requested to ask Mr. Gardiner if he was opposed to any restoration of wetlands on the lot. Ms. Martucci stated that their position is that there are no wetlands so there would be nothing to restore. Mr. Fugate stated that there were definitely wetlands on lot 230 and it extends. Ms. Martucci stated that Mr. Gardiner would testify that they haven’t done any significant clearing or tree cutting that would require a restoration. Ms. Martucci acknowledged that when Mr. Rabideau was involved there was discussion of minor restoration activities but then after discussion with Ms. Miguel the request for restoration was very substantial which is why the situation took the turn it did.

Mr. Faneuf confirmed for Mr. Gagnon that he had augered through the lawn area. Mr. Gagnon expressed concern because according to the 1992 permits that area was to have been left undisturbed and with the alteration it is difficult to tell what was there due to the addition of fill. Mr. Faneuf explained that although the trees present were wetland types, the understory is gone but the type of grass planted, bluegrass, is not a wetlands plant. Mr. Faneuf explained that the native soil beneath the fill would not have changed its characteristics. Mr. Faneuf explained that there was enough iron in the upper part of the soils to say it is not wetlands. Mr. Faneuf explained that when you remove vegetation the water table increases but there is still pretty good tree coverage in the back yard, so he does not feel that there was enough of a significant change as to have an impact on the soils.

Ms. Miguel clarified that in April, she and Scott Rabideau had an email exchange about the possibility of an application being submitted. Mr. Miguel stated that at no time did the CRMC receive a formal application so to say that the Gardiners weren’t proposing to restore enough is inaccurate.
Ms. Reynolds inquired to Ms. Miguel as to whether Mr. Gardiner had questioned that wetlands were on his property. Mr. Gardiner answered that Mr. Rabideau made a site visit and stated that he did not believe there were wetlands on the property. Mr. Gardiner stated that his neighbor used to drain their basement in that area that was determined to be wetland. Mr. Gardiner stated that Mr. Rabideau advised him to do minor restoration and the go back and redo it. Mr. Gardiner explained that Mr. Rabideau told him he had to dig the yard down by one foot. Mr. Gardiner stated that he felt that he got dragged down the wrong path and Mr. Rabideau stated he could not take the job because he had a busy schedule.

Vice Chair Coia asked what it would take to appease CRMC based on the current situation of the property. Ms. Miguel stated that CRMC would be open to compromise but that an application or restoration plan was never officially submitted to CRMC staff. Mr. Fugate stated he would like to see no less than the 2017 plan with a wetland delineation. Mr. Fugate stated that his suggestion would to be bring the matter back to the Council in two weeks which would give the Gardiners an opportunity to present what they believe to be a reasonable restoration and it would give our staff the opportunity to go out and verify the soils on the site to see about the accuracy of the 1992 wetland delineation.

Chair Cervenka stated that first they needed to determine whether there is a violation and how to remedy it. Chair Cervenka suggested the council make a determination on whether there is a violation and then bring the matter back for the remedy portion.

Vice Chair Coia asked Ms. Martucci and the Gardiners if they would be amenable to a motion to find that there was a violation of Assent, stay any imposition of fines or order payment of the continuance fee, and return in a couple of weeks with a proposed resolution.

Ms. Martucci stated that they were not in agreement that there is a violation on the site.

Mr. DeSisto addressed the room stating that he believed that it was a good, productive hearing but that there had been an admission of violation of the 1992 assent and he recommended to the Council that that be the finding of the hearing. Mr. DeSisto also stated that he agreed with Chair Cervenka, Vice Chair Coia and Director Fugate that the best way to handle this is to work with staff on a resolution. Chair Cervenka confirmed for Ms. Martucci that Mr. Faneuf made the admission that the 1992 assent had not been complied with. Mr. DeSisto stated that he believed that the compromise was a good one.

Mr. Gagnon stated that the 1992 Assent had provided an area of disturbance that was approved and that they went beyond the limits of disturbance. Mr. Gagnon expressed concern that the procedure for modification of assent was not followed. Mr. Gagnon agreed that the compromise proposed would work.

Ms. Miguel stated that two weeks would not be enough time for Mr. Faneuf and CRMC staff to create and review a proposed resolution. Chair Cervenka suggested 30 days.

Ms. Martucci addressed the Council regarding the admission of violation of the 1992 permit stating that Mr. Faneuf is not an attorney and that she did not believe that the Council can rely on a legal determination from a biologist as to whether or not there has been a violation. Ms. Martucci stated that she did not believe the Mr. Faneuf agreed that there was a violation of a 1992 assent.

Mr. Fugate and Ms. Martucci disagreed on the basis of the admission of violation and the basis for the matter of the violation before the Council.
Mr. DeSisto requested a two minute break to speak with Ms. Martucci.

Break Taken

Upon return, Ms. Martucci asked if Mr. Faneuf could address the assertion that he made a legal determination regarding a violation of the assent.

Mr. DeSisto stated that Mr. Faneuf could not do that has he was not an attorney. Mr. Faneuf was asked a question of fact to which he answered.

Mr. DeSisto stated that the meeting was at an impasse as there were not going to be any agreements. Mr. DeSisto stated that there was enough on the record which would support the finding of a violation if someone chose to make a motion. Mr. DeSisto stated that the remedies that have been outlined accomplish the goals of both parties.

Vice Chair Coia stated that based on the developments, he would not be inclined to make the same motion as he previously stated.

Ms. Martucci stated that while they do not agree that there is a violation, the Council appears to feel that there is and her client is amenable to working with Mr. Faneuf and Ms. Miguel in preparing a plan of restoration and/or application that would appease all parties concerned.

Mr. Fugate pointed out that the assent that was issued in 1992 was contingent and cited to plan and that it had to be in accordance with the plan that was on file with the Council. The plan indicated a line of disturbance and a buffer planting. Mr. Fugate stated that the line of disturbance has been violation and the buffer was never established. Mr. Fugate stated that there is clearly a violation on the property.

Mr. Gardiner explained that the home and deck are exactly the way they were when the house was built and that because the Town required that he repave the road after a sewer-line was connected to the house they decided to pave the driveway.

After no further questions, Chair Cervenka closed the public hearing.

There was some discussion as to what the motion should entail and whether a fine would be assessed. Chair Cervenka suggested that restoration plan or application be submitted by a date certain.

Mr. Gomez motioned that the findings are that there was a violation and that the both parties should get together and a mutually agreed to restoration plan or an application to address restoration of the property back to original or near original conditions. Chair Cervenka amended the motion so that a mutually agreed to resolution would be reached before our second October meeting. Ms. Miguel asked that the motion contain that whatever is submitted must be submitted within 15 days from this date. Chair Cervenka also included that two continuation fees be paid. Mr. Gomez agreed to the amendment and the motion was seconded by Ms. Montanaro. The Motion carried on a 6 in favor to 1 against. Mr. Coia stated that he had proposed a good resolution and that discussion revealed that his resolution was not acceptable to the homeowner or their attorney. Mr. Coia stated that he would have supported a $2,500 administrative fine and a $1,000 a day from the retro original finding through and including today’s date.

Ms. Martucci asked for clarification on what is to be submitted within 15 days. Ms. Miguel and Mr. Fugate answered that they need to submit a restoration plan and/or an application. Chair Cervenka added that the submittal did not assure approval.

Ms. Miguel stated that enforcement staff is available to meet if you have any questions.

7. PUBLIC HEARING ON PROPOSED AMENDMENTS TO THE COASTAL RESOURCES MANAGEMENT PROGRAM:

Summary of Rulemaking Action:

The purpose of this proposed rule is to amend and consolidate the current Red Book [650-RICR-20-00- 1] with existing requirements and standards of the CRMC “Guidelines for the Development of Municipal Harbor Management Plans” [ERLID #5719] and incorporate desirable elements of the CRMC’s “Energy Amendments” [ERLID #1060]. The CRMC will concurrently repeal those rules [ERLIDs #1060 and 5719]. Additionally, a number of amendments are proposed as listed below.

Mr. Willis gave a brief overview of Jim Boyd’s staff report. Mr. Willis explained that the some of the minor and technical comments/changes that were submitted by Save The Bay were agreed to and that the color scheme of Mr. Boyd’s report would help define the changes. Mr. Willis explained that the only exception for changes suggested was Section 91 which would remain the same.

Mr. Gomez motioned to accept the changes as presented in Mr. Boyd’s report with the exception of 91.

Mr. Coia seconded the motion. Motion carried on a unanimous voice vote.

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

Motion to enter into Executive Session:
Motion: Mr. Gagnon
Second: Ms. Reynolds

Roll call vote:

Ms. Gomes Yes
Mr. Gomez Yes
Vice Chair Coia Yes
Chair Cervenka Yes
Ms. Montanaro Yes
Mr. Gagnon Yes
Ms. Reynolds Yes

Motion carried.

Informational only – no decisions were made.

Move to come out of Executive Session at 8:04 p.m.:
Motion: Chair Cervenka
Second: Vice Chair Coia
Motion carried on a unanimous voice vote.

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

8. ADJOURN

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

Meeting adjourned at: 8:10 p.m.

 

Respectfully submitted,

Lisa A. Turner
Recording Secretary

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