RI Coastal Resources Management Council
...to preserve, protect, develop, and restore coastal resources for all Rhode Islanders
...to preserve, protect, develop, and restore coastal resources for all Rhode Islanders
In accordance with notice to member of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, October 24, 2023 at 6:00 p.m. located at the Administration Building, Conference Room A, One Capitol Hill, Providence, RI.
Members Present
Raymond Coia, Chair
Ronald Gagnon, DEM
Donald Gomez
Stephen Izzi
Kevin Flynn
Joseph Russolino
Excused
Catherine Robinson Hall
Patricia Reynolds
Staff Present
Jeffrey Willis, Executive Director
Laura Miguel, Deputy Director
Amy Silva, Spv Environmental Scientist
Benjamin Goetsch, Aquaculture Coordinator
Anthony DeSisto, Legal Counsel
Mark Hartmann, Asst Legal Counsel
Lisa Turner, Recording Secretary
Cynthia Tangney, Court Reporter
1. CALL TO ORDER
Chair Coia called the meeting to order at 6:10 p.m.
2. Review/Action of the Minutes of the Previous Meeting – October 10, 2023
Chair Coia called for a motion regarding the minutes for the Tuesday, October 10, 2023 Semi-monthly Meeting.
Motion: Mr. Russolino
Second: Mr. Gagnon
Motion carried on unanimous vote.
3. Subcommittee Reports
No Reports.
4. Staff Reports
Mr. Willis updated the Council on the following:
5. Applications requiring a Special Exception before the Full Council for Review and Action on Final Decision:
2023-04-094 RI DEPARTMENT OF TRANSPORTATION -- The reconstruction of the East Bay Bike Path bridges over the Barrington River and Palmer River including the installation of new piers, abutments, truss spans, riprap scour protection, and stormwater management. This project requires special exceptions to CRMC Red Book 650-RICR-20-00-1 §1.3.1(L)(3)(c) – alterations to coastal wetlands not designated for preservation adjacent to Type3 Waters §1.3.1(M)(2)(a) – the construction of new public transportation facilities in tidal waters, and §1.3.1(G)(3)(c) – the filling on a coastal feature or tidal waters. Variances are required for (CRMP §1.3.1(B)(3)(a)(6)), filling rather than cutting on causeway slopes and §1.3.1(B)(3)(e)(1)(AA)) filling on slopes steeper than 15 percent.
Chair Coia read the agenda description into the record.
Sworn in by Mr. DeSisto and Identified for the record were:
Lori Fisette, RIDOT, Administrator for the Division of Project Management
Loreen Doyle, RIDOT Chief Operating Officer
Jeff Klein, Consultant, Vanasse Hangen and Brustlin
Ms. Silva gave a brief overview of the Category B application to the Council stating the RIDOT project was to replace two bike path bridges over the Barrington and Warren Rivers. Ms. Silva informed the Council that the demolition of the Barrington River bridge was permitted in the Spring by CRMC as an administrative review. RIDOT also received RIDEM and ACOE approvals for this project. Mr. Silva explained the two variances requested through the application:
Ms. Silva stated that the application required three special exceptions:
Ms. Silva stated that the applicant proposed mitigation by removal of temporary filling and complete restoration. Ms. Silva explained there would also be 2,610 sf of wetland replication.
Ms. Silva stated that the variance criteria had been met, staff had concerns regarding the special exceptions, specifically section 1.1.8(A)(1)(a) – providing access to the shore for broad sections of the public involving fishing access on the bike path bridges – Ms. Silva stated that the bike path had only 2’ of clearance on either side of the bike path which does not provide for adequate public use.
Ms. Silva stated that public comments had been received in recent weeks from neighboring marinas, the abutting marina being Atlantic Marine who has seen a dangerous increase in tidal flow due to the removal of the old bike path bridge’s piling which slowed the tidal flow and also prevented major ice flow in the winter. Ms. Silva stated that Atlantic Marine owners, the Mainella’s, requested a meeting with RIDOT but have gotten very little cooperation.
Ms. Silva stated that the New England chapter of Back Country also send in an objection regarding concern over fishing access and requested the Council require fishing access.
Questions of council to Ms. Silva:
Mr. Flynn asked Ms. Silva if, in her experience, it is typical to be ignored by a sister agency. Ms. Silva stated that it is common to have dialogue with an applicant that is a state agency.
Chair Coia asked if RIDOT had a presentation.
Representatives from RIDOT stated that while they were not prepared to do a presentation, they were available to answer questions and could comment on CRMC staff concerns.
Ms. Fisette informed the Council that a RIDOT outreach staff member had been in contact with the owners of Atlantic Marine as well as having Representative Knight as part of the communication and agreed that he would be the conduit for any communication. Ms. Fisette stated it had been an ongoing dialogue. Ms. Fisette stated that they had not met with Atlantic Marine as they were waiting to hear from CRMC and that RIDOT had not approved or accepted a design that did restrict any fishing on the proposed bridge.
Mr. Flynn questions RIDOT representatives about the previous bridge.
Andrew Prezioso of VHB was brought up to answer some questions of the Council. He was sworn in and identified himself for the record. Mr. Preziosa stated that the previous bridge has 4’ sidewalks on each side of the bridge and that the bridge was 18’ wide.
Mr. Flynn asked why the new bridge is 14’ wide providing only 2’ sidewalks on each side. Mr. Klein stated that the new bridge will be launched into place and would provide clearance for both tide requirements and overhead utilities. Mr. Klein stated that all the limitations allow for a 14’ wide bridge. Mr. Klein informed the Council that some of the design aspects of the bridge were related to economics as well.
Mr. Klein explained that RIDOT would have to evaluate the project to provide a 4’ sidewalk on only one side of the bridge as there could be conflicts and safety concerns with bikers and fishers using at the same time.
Mr. Gomez stated that fishermen would not be happy with sidewalks on only one side as fishing depends on tide and tide shifts occur.
DG – sidewalk on other side; fisherman would not be too happy about that – tide shift on other side of the bridge – restrict fishermen to one side of the bridge.
Mr. Flynn asked for an estimate of the project.
Ms. Doyle stated that the project had gone out bid and Ms. Fisette confirmed that the bid had been awarded for approximately 17 million dollars. Ms. Doyle could not answer the question of how much it would cost to have two more feet on each side.
No further questions of RIDOT
Chair Coia opened the meeting the Public Comment as it relates to special exception criteria and variance criteria.
Jane Mainella, owner of Atlantic Marina, was sworn in and identified herself for the record. Ms. Mainella addressed the Council and explained all the issues and problems they were experiencing from this onset of the project such as tidal flow and their concerns over the safety of their marina occupants. Ms Mainella showed the Council pictures of the current flow. Ms. Mainella explained their concerns over RIDOT lack of communication with them. Ms. Mainella explained their biggest concern was the danger to the boaters. Ms. Mainella stated that the markers that RIDOT put out in the water a pulled under during certain tides and people call 911 thinking that someone is drowning. Ms. Mainella had a letter from the harbormaster of the area stating that the area was definitely affected by the removal of the pilings on the bridge. Ice flows would break up on the pilings of the old bridge and now have uninhibited flow – no place to break up. Ms. Mainella asked for a design change to alleviate some of the concerns to the neighboring area. Ms. Mainella suggested that the land be cut back on Police Cove and 150’ added on their side. Ms. Mainella stated that the US Coast Guard called the marina to see what was happening and that they were waiting for the meeting to see if issues would be addressed prior to talking to USCG. Mainella’s attended tonight to get answers to the questions.
Chair Coia agreed that the Council needed more answers to questions and asked that RIDOT come back with a proper presentation as well as concerns of the interested parties being addressed.
Owen O’Rourke was sworn in and addressed the Council regarding his concerns stating that he hoped that the historical nature of the fishing in this area would be re-evaluated.
Chair Coia asked RIDOT to look at and address, in a presentation, the concerns of the Council and the interested parties.
Mr. Gomez made a motion to continue the application so that concerns can be addressed and RIDOT can present to the Council. Mr. Gomez also suggested that a list of questions be provided to RIDOT so they can address them.
Mr. DeSisto stated that the transcript could be sent to RIDOT.
Chair Coia asked for a second for the motion on the floor from Mr. Gomez. Mr. Russolino seconded the motion.
Chair Coia polled the Council:
Mr. Russolino aye
Mr. Gagnon aye
Mr. Flynn aye
Mr. Izzi aye
Mr. Gomez aye
Chair Coia aye
Motion carried on unanimous roll call vote.
Paul J Silva was sworn in and identified himself for the record. Mr. Silva expressed his concerns to the Council regarding this project.
6. Applications that have been Out to Public Notice before the Council for Review and Action:
2020-05-083 ANDREW VAN HEMELRIJCK -- Two Aquaculture farm sites (one primary 0.55-acre site and a 0.05-acre winter storage site) for the cultivation of oysters and quahogs using submerged gear in Point Judith Pond, Narragansett, RI.
Mr. Goetsch gave a brief overview of the application stating:
Mr. Goetsch stated that staff was recommending these Stipulations:
Mr. Goetsch stated that CRMC Staff deferred to the Council for objections and most recent parties with entry of appearance. Objections have not been received from them but understand they have questions.
No questions from Council to staff member Mr. Goetsch.
The Applicant, Andrew Van Hemelrijck was sworn in and identified for the record.
Mr. Van Hemelrijck gave his background story and explained his aquaculture farming request to the Council stating that there were two site with one site being for winter storage. Mr. Van Hemelrijck stated that when he had used a site in this area for a commercial viability project for three years, there were no objections from anyone. Mr. Van Hemelrijck stated that only when he wanted to move forward and apply for a full commercial site, did the process become objected to.
Mr. Van Hemelrijck answered questions from the Council:
For Mr. Gagnon, Mr. Van Hemelrijck stated that the winter site was used so his crop would not be killed by exposure to the lower temperatures in a shallow site. Mr. Van Hemelrijck explained that he was hoping to develop a process that works for both sites and said bringing a portion of the animals from the main site to the winter site might work.
Attorney Maureen Hobson addressed the Council on behalf of 26 neighbors in the area stating that mediation in September was successful and brought about an agreement with the applicant.
Mr. DeSisto requested that the result of the mediation be made as part of the written decision and was prepared to accept the document.
Mr. Goetsch confirmed for Mr. Russolino that the staff supported the agreement that came from the mediation and the conditions that will become part of the written decision and the assent if approved.
Mr. Goetsch explained that if an aquaculturist does not use their farm for a year, it is subject to revocation and that each farm/aquaculturist provides CRMC with a performance bond for removal purposes if it becomes necessary for the state to remove the equipment. Mr. Goetsch stated that he inspected/visited each and every farm at least once a year through CRMC and RIDEM.
Members of Audience from Mollusk Drive:
Attorney Mark Fay addressed the Council on behalf of his clients which are a Group of entities and individuals on Comfort Island:
Mr. Fay asked stated that his clients did not receive notice of the proposed aquaculture site or any meetings involved.
Mr. DeSisto addressed the Notice issue pointing to Notification under Section 1.5.1(B) notice to immediate abutters. Mr. DeSisto also pointed to the CRMC Management Procedures as well as the Administrative Procedures Act stating that there’s a question of constructive notice using case law Gardner v. The Cumberland Town Council as well as Graziano v RI State Lottery Commission. Mr. DeSisto stated that these cases pointed to the fact that personal attendance at a meeting waives any alleged defects in notice.
Mr. Fay stated that if the application is granted tonight there will be an immediate filing in the Superior Court.
Mr. Fay stated that his clients did not have the opportunity to participate in the Mediation.
Mr. Fay stated that the notice for aquaculture projects was any property within 1000 feet of the site.
Mr. Fay’s argument was that his client was not properly noticed, that they could not participate in mediation and did not have all the information involved in the application.
Mr. Goetsch stated that the file was submitted to the office prior to the change in the aquaculture process.
Chair Coia asked Mr. Fay’s client was present. Mr. Fay stated he was there to represent them and provided affidavits on their behalf.
In answer to Mr. DeSisto, Mr. Goetsch stated that, as aquaculture coordinator, he did not have knowledge to Mr. Fay’s claim that the US Navy was working within the 1000 feet of the aquaculture site through Frank Mazza’s Point View Marina.
Mr. DeSisto stated that the Guide for Aquaculture was developed in 2022 and that this application was filed in 2020 and that the rules and regulation in place when the application was filed and that the application took three years to get to this point.
Mr. DeSisto explained to the Council the issues at hand tonight:
Mr. DeSisto presented the decision options to the Council:
Accept based on mediated agreement.
Deny based on Mr. Fay’s argument.
The Council had discussions on the most expeditious way of handling the matter.
Mr. Flynn suggested continuing the application for a month to handle the notification aspect of the objection rather than making a decision and having the decision appealed in court. Mr. Flynn stated that it would take less time for the applicant. Mr. Russolino also suggested this option.
Mr. DeSisto stated that there would be an appeal either way and that the matter of an appeal should not enter into the council’s decision. Mr. DeSisto stated that Mr. Fay was not asking for a continuance, he was asking for a denial. Mr. DeSisto explained that all parties, including the applicant, are entitled to due process.
Mr. Fay stated that his clients are open to sit down and he is asking for additional time as they were not included in the mediation.
Mr. DeSisto stated that the applicant is not in agreement to another mediation.
Mr. Gagnon asked if mediation could come after CRMC makes a decision and then after the mediation, staff could review and a modification application could be submitted. Mr. DeSisto stated that this could be an option.
Ms. Hobson stated that her clients were eager for a decision tonight.
Mr. Fay asked if the affidavits were going to be accepted by the Council. Mr. DeSisto stated they were not as they did not come in under the timeframe of the CRMC regulations.
Mr. Van Hemelrijck asked to address the Council and stated that this meeting date was agreed to by Mr. Fay. Mr. Van Hemelrijck stated that the USDA mediator reached out to the two objectors and Mr. Fay multiple times and that they refused to enter into mediation with them.
Mr. Van Hemelrijck stated that Mr. Waugh knew about the aquaculture farm for many years and that he had a discussion with him recently and because Mr. Waugh was building a permanent home on his lot, he did not want to look at four buoys. Mr. Van Hemelrijck stated that Mr. Waugh told him about the US Navy.
Mr. Van Hemelrijck also stated that the channel was not a recognized channel and that it is only accessible by shallow draft boats.
Mr. Van Hemelrijck stated that he had discussed his project with another aquaculturist and they discussed the buoys.
Mr. Van Hemelrijck’s last point was that the entire channel is currently lined with buoys from whelk fishermen.
Decision making time:
Mr. Gomez motioned for approval of the application with stipulations from mediation, based on findings of fact and staff report. Mr. Russolino seconded the motion.
Chair Coia polled the Council:
Mr. Russolino aye
Mr. Gagnon aye
Mr. Flynn aye
Mr. Izzi aye
Mr. Gomez aye
Chair Coia aye
Motion carried on unanimous roll call vote.
7. Enforcement matter before the Council for Order to Restore:
22-0255 Karen McGuinness – Order to Restore for unauthorized earthwork (filling, removing and grading) and vegetative clearing within a freshwater wetland and CRMC designate buffer zone in nonconformance with CRMC Assent W2004-12-070. Located at plat 15, lot 12; 26 Swamp Road, Little Compton, RI.
Mr. Willis explained the continuance stating that the property owner just retained legal counsel and they need to get up to speed in this matter.
8. ADJOURN
Motion to adjourn:
Motion: Mr. Russolino
Second: Mr. Gagnon
Motion to adjourn approved on a unanimous voice vote. The meeting was adjourned 8:00 pm.
Minutes respectfully submitted,
Lisa A. Turner
Recording Secretary
Stedman Government Center
Suite 116, 4808 Tower Hill Road, Wakefield, RI 02879-1900
Voice 401-783-3370 • Fax 401-783-2069 • E-Mail cstaff1@crmc.ri.gov
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