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, December 12, 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
Patricia Reynolds
Catherine Robinson Hall
Stephen Izzi
Kevin Flynn
Joseph Russolino
Staff Present
Jeffrey Willis, Executive Director
Laura Miguel, Deputy Director
Brian Harrington, Enforcement
Justin Skenyon, Ocean Engineer
Mark Hartmannn, Asst Legal Counsel
John Longo, Deputy Legal Counsel
Lisa Turner, Recording Secretary
Cynthia Tangney, Court Reporter
1. CALL TO ORDER
Chair Coia called the meeting to order at 6:05 p.m.
2. Review/Action of the Minutes of the Previous Meeting – November 14, 2023
Chair Coia called for a motion regarding the minutes for the Tuesday, November 28, 2023 Semi-monthly Meeting.
Motion: Mr. Izzi
Second: Mr. Gagnon
Motion carried on unanimous vote.
3. Subcommittee Reports
None.
4. Staff Reports
Mr. Willis updated the Council on the following:
5. Federal Consistency before the Council for Review and Action:
2022-03-080 SouthCoast Wind Energy, LLC
Mr. Hartmannn informed the Council that Anthony DeSisto Law is recusing due to a potential conflict with another client and that Deputy Legal Counsel John Longo, Esq present.
Mr. Willis gave a brief overview of the Federal Consistency process and how it applies to CRMC under the Federal Coastal Zone Management Act. Mr. Willis explained that the applicant had met with the Fishermen’s Advisory Board prior to their mass resignation which fulfilled the requirement of Necessary Data and Information under the 15 CFR 930, subparts D and E as well as our own Ocean SAMP Section 11.10.1(D). Mr. Willis also explained that the lack of a Power Purchase Agreement (PPA) would not preclude a state’s coastal program from conducting its federal consistency review under the CZMA because the Bureau of Ocean Energy Management (BOEM) is able to develop and Environmental Impact Statement regardless of PPAs. Mr. Willis explained that the review process for this project is due to the export cable corridor in Brayton Point which is located within two of Rhode Island’s Geographic Location Descriptors (GLDs) and that CRMC will not be reviewing the entirety of the wind farm as it is located outside of Rhode Island GLDs.
Mr. Willis explained that the corridor is surveyed to be up to 2,300 feet wide and would consist of up to six cables wrapped in two bundles one of which would span 27 miles and the other 22.7miles through the two GLDs. Mr. Willis also explained that the project is a 4-year phased export cable installation period to allow the developer some flexibility.
Mr. Willis ended with stating that the staff review concluded with a determination of Concurrence with Conditions. Mr. Willis stated that micrositing of the cables would be included with the requirement of reporting and that a Memorandum of Understanding would be agreed with to facilitate a survey of fishing activity along the export cable corridor.
Mr. Willis confirmed for Chair Coia that the developer had agreed to the conditions as set forth in the staff report.
Ms. Hall asked for more details on the MOW for the fishery survey. Mr. Willis stated that the survey would provide information such as what type of fishing occurs out there. We are looking for more data on what goes on in the offshore environment for future activities.
Ms. Reynolds arrived at 6:25 p.m. (heavy traffic due to Washing Bridge shutdown)
Attorney Christian Capizzo, the Environmental and Energy Chair at Patridge Snow and Hahn was present to represent SouthCoast Wind for Federal Consistency review. Mr. Capizzo set the stage for the presenters of the project from SouthCoast Wind, all of whom were sworn in by Mr. Longo.
Mr. Capizzo introduced the presenters’ CVs for the record.
Introduce the CVs for the record.
Ms. Flood addressed the Council and introduced the project and gave an overview of the benefits of the project to the environment as well as the benefits to the surrounding states due to supply chain opportunities, new jobs, as well as net zero emission goals for New England states.
Ms. Flood briefly explained about the entire SouthCoast Wind Farm and then the export cable from the wind farm offshore substation to Brayton Point in Somerset, MA and Falmouth, MA. Ms. Flood explained that CRMC reviewed the federal consistency request for the export cable corridor to Brayton Point.
Mr. Cassidy briefly explained that the Federal Consistency request was for the offshore cable routes within the RI 2011 and 2018 GLD’s and that the cable routes within RI state waters would be submitted separately through a Category B application for staff review later in 2024. Mr. Cassidy also gave an overview of work done for the project which included benthic habitat mapping studies and cable routing surveys.
Ms. Thurlow gave an overview of the 50 miles of export cable section that intersected RI GLDs stating that the target burial depth would be 6’ and that the 3-cable bundle would be 13” wide. Ms. Thurlow explained the cable equipment that would be used to clear boulders and trench for the cable. Ms. Thurlow explained that the timeline within the RI GLDs would be 178 days. Ms. Thurlow stated that surveys would be done prior to the cable installation and after cable installation. Mr. Thurlow gave an overview of the cable laying process as well as the cable crossing protection with concrete mattresses.
Mr. Cassidy returned to discuss benthic monitoring developed in conjunction with Inspire Environmental to look at what the physical disturbances are to the environment around the cable installation.
Mr. Asci gave an overview of the fisheries management including the overlapping of commercial and recreational fishing within the RI and MA lease area. Mr. Asci provided information regarding communication with the fishing community through fishery representatives, Fred Mattera in Rhode Island. Mr. Asci also explained the gear loss program. Lastly, Mr. Asci explained the mitigation package for financial impact to fishermen - $280,000 in total -- $250,000 for direct compensation and $30,000 for general support, such as training, research, and navigational safety.
Chair Coia – questions from Council:
Mr. Flynn asked about the cable route and avoidance of areas of concern. Ms. Thurlow stated there are constraints on either side of the cable route keeping them close to an area of concern. Ms. Thurlow stated that Oakley and King had given a positive response to the route.
Ms. Thurlow explained the cable laying equipment to Mr. Flynn stating that equipment is attached to the cable laying vessel and operated from the vessel.
Mr. Flynn asked who monitors the Fisheries Research and Monitoring plan. Mr. Asci stated that the monitoring plans are being conducted with Inspire using requirements laid out by BOEM. Mr. Cassidy stated that SouthCoast had agreed to share annual reports with CRMC. Mr. Willis confirmed.
Ms. Hall asked how the fishing community knows the new location of the boulders and secondary protection locations. Mr. Asci stated that coordinates of the boulder location or the secondary protection will be communicated to the CRMC and other partners through charts used on AIS.
Mr. Flynn asked if there had been analysis of alternative cable routes other than through the Sakonnet. Ms. Flood stated that they had looked at 14 different routes to get to Brayton Point and that the report contents are public. Ms. Flood also stated that BOEM also has an assessment in the Draft Environmental Impact Statement.
Mr. Capizzo thanked the Council and respectfully requested that the Council accept the staff recommendation.
Public Comment:
Noel Ingalls, Little Compton, asked about water quality management and monitoring during operations inside state waters. Mr. Willis stated that the CRMC does not have an application in terms of State waters in front of us at this time.
Elizabeth Quattrocki Knight addressed the Council to object to the project due to lack of transparency, dangers to the fishing industry, radar disruption in search and rescue operations, resuspension of toxins in the seabed during cable laying, possibility of birth defects due to AC and DC currents, and percentage of take requirements for marine mammals.
Charlotte Duhamel, Little Compton, addressed the Council with objections due to lack of transparency from fossil fuel companies, in particular, Shell.
Laura Lee, Little Compton, addressed the Council with objections due to lack of information regarding the affects of eating seafood that is being taken from the wind farm areas that could cause unintended consequences.
End of Public Comment.
Nothing further from South Coast Wind.
Mr. Willis clarified, at the request of Mr. Flynn, that the project before the Council was for the portion of the export cable that went through RI GLDs 2011 and 2018 in federal waters.
Mr. Flynn asked if there was an opportunity for the public to weigh in on the review of the full project. Mr. Willis stated that comments could be made on the BOEM website.
Mr. Izzi motioned, based on the staff report and testimony heard tonight as well as comments from the public, that the Council find that the application meets the State’s enforceable policies with the conditions attached to the staff report and its findings. Mr. Izzi added that he included the compensation package dated December 6, 2023. Motion seconded by Mr. Gagnon.
Mr. Longo restated the motion for the record:
The motion is to find the staff report and the testimony and evidence offered in favor of the application more credible than the testimony and evidence offered in opposition to it, with a finding that the project that's before you, as described in the application and the testimony with the conditions contained in the staff report and the additional provision for compensation dated December 6, 2023, is consistent with all Rhode Island enforceable policies, including those in the Ocean SAMP. Mr. Longo also asked that Mr. Izzi add to the motion to request that the Executive Director communicate the Council’s concurrence to the appropriate federal authorities.
Mr. Izzi stated that he amended his motion to conform to Legal Counsel recitation.
Mr. Gagnon agreed.
Chair Coia polled the Council:
Mr. Flynn Aye
Mr. Izzi Aye
Mr. Russolino Aye
Ms. Hall Aye
Mr. Gagnon Aye
Ms. Reynolds Aye
Chair Coia Aye
Motion carried on a roll call vote.
6. In accordance with Judge Lanphear’s November 29, 2023 ruling in the matter Sheffield v. CRMC, PC- 2023-01199, the request for Declaratory Ruling of Lance & Holly Slater Sheffield CRMC File Number 2022-12-045 is before the Council for Review and Action.
Mr. Hartmann briefed the Council as to the movement of the travel of the case and the CRMC role on this particular matter this evening.
Mr. Hartmann stated that Lance and Holly Sheffield, both present, owned the Barrington property involved, in which a maintenance assent was granted to the 1982 property owner for the repair of the seawall. Mr. Hartmann stated that the 1982 maintenance assent had a condition that required public access along the top of the riprap before the seawall. Mr. Hartmann stated that the assent was not recorded in the land evidence records of the Town of Barrington.
Mr. Hartmann stated that in 2021, CRMC Enforcement staff issued a Cease & Desist Order due to the fact that the Sheffields had blocked off access to the public portion of the riprap.
Mr. Hartmann stated that the Sheffields petitioned the Council for a declaratory ruling asking whether the assent is enforceable against them and accordingly that the cease-and-desist orders are inappropriate.
Mr. Hartmann stated that Sheffields argument is that the assent was not recorded in the land evidence records when it was issued in 1982 and as a result, the assent cannot be binding as well as the public access condition on the Sheffields because they are subsequent purchasers of the property that were not aware of the condition when they purchased the property.
Mr. Hartmann informed the Council that the matter was unable to be heard in a timely fashion, and as a result, the matter was appealed to Superior Court on a declaratory judgment action pursuant to the Administrative Procedures Act.
Mr. Hartmann further explained that the Superior Court determined, under state law, that the Council must hear the declaratory ruling that the Sheffields petitioned the Council for. Mr. Hartmann stated that Judge Lanphear had remanded the case to CRMC and the Council must determine whether the assent is binding on the Sheffields and as a result, whether the cease and desist orders are appropriate.
Mr. Izzi asked if the Assent had been recorded in Barrington subsequent to any enforcement action. Mr. Hartmann stated that it had not and it still remained unrecorded.
Mr. Hartmann confirmed for Mr. Izzi that the obligation to record the Assent was with the applicant/property owner.
Mr. Hartmann confirmed for Ms. Hall that in 1982 there was no statutory requirement that the assent be recorded but that in 1988 the General Assembly put into statute that an assent must be recorded. Mr. Hartmann stated that the 1988 statute does not indicate that it was retroactive.
Ms. Hall asked if the 2011 maintenance assent that was applied for by the owner at the time, was recorded. Mr. Hartmann stated that it was not.
Mr. Hartmann clarified that the 1988 statute required the applicant/property owner to record assents.
Mr. Harrington, CRMC Enforcement, gave a brief summary of the events to the Council which was similar to Mr. Hartmann’s. Mr. Harrington confirmed that access had been blocked by unauthorized fencing and signage. Mr. Harrington stated that the fencing and signage was removed once the property owner received the Cease-and-Desist Order and that Mr. Harrington had cleared the Cease and Desist order in the CRMC database. Mr. Harrington stated that on a second visit to the property on May 3, 2022, enforcement staff found additional signage, a siren and a security guard preventing lateral access along the seawall. Mr. Harrington stated that a second Cease and Desist Order was issued on May 27, 2022 for preventing lateral public access along the top of the riprap retaining wall in nonconformance with CRMC assent 1981-12-003, stipulation I. Mr. Harrington stated that the wall was constructed without the 2’ access path along the top of the riprap and that the property owner failed to install and maintain signs visible to the public indicating passage atop of the riprap. Mr. Harrington stated that the Sheffields then petitioned for declaratory ruling.
Mr. Hartman was able to confirm for Mr. Izzi that it was the property owner’s responsibility to record an assent in the land evidence records as per Statute 46-23-21, Notice of Permit Recordation.
Mr. Willis confirmed for Ms. Hall that Maintenance assents are also recorded on deed.
Mr. Izzi brought up that the statute did not specify who was responsible for the recording of the assent.
Mr. Willis stated that the majority of our assents have a standard stipulation that requires the applicant to record the assent within 30 days of receipt and provide CRMC with a copy of the recorded assent. Mr. Willis confirmed that the stipulation was not in the 1982 assent that affected the Sheffield property.
Ms. Miguel confirmed for the Council that the 2011 maintenance certification was not required to be recorded in the land evidence records, therefore, it was not recorded. Ms. Miguel informed the Council that not all CRMC Assents were required to be recorded. Mr. Willis confirmed that CRMC would not require recording of assents for minor activities. It was unclear as to why the 2011 maintenance certificate was not required to be recorded.
Attorney Dan Procaccini of Adler Pollock & Sheehan, representing the Sheffields addressed the Council introducing the property owners, Lance and Holly Sheffield; as well as Stephen Lapatin, Esq, a colleague at Adler Pollock & Sheehan.
Mr. Procaccini explained that the petition to the Council asks whether a 30-year-old, unrecorded CRMC Assent (1981-12-003) is enforceable against a purchaser of property who lack any actual or constructive knowledge of the assent’s existence. Mr. Procaccini stated that the Sheffields performed their due diligence during the purchase of the property consistent with professional standards and that the Sheffields feel the assent is not enforceable and that the restrictive condition requiring public access to their seawall is not enforceable and the Cease & Desist orders issued should be vacated as they did not have knowledge of the Assent’s existence.
Mr. Procaccini, showing projected pictures, explained the properties history, subdivision and permits, as well as history of ownership of the property stating that the Kilmarx family obtained the assent in 1982 stating that the while the assent required signage and public access through stipulations H and I, there was not evidence that the conditions were complied with by the Kilmarx family. Mr. Procaccini stated that the seawall did not have signs of public access when the Sheffields purchased the property.
Mr. Procaccini stated that it is a tried-and-true principle that someone who buys property without actual or constructive notice of an encumbrance, like the assent and its public access requirement, is known as a bona fide purchaser and that those restrictions or encumbrances cannot be enforced against such a purchaser.
Mr. Procaccini summarized:
Mr. Procaccini stated that for all the summarized reasons, we believe that the Sheffields are entitled to the full benefit of the bona fide purchaser rule and that the Council should issue a decision declaring that this assent is null and void.
Mr. Izzi asked when the 2017 maintenance certification was approved and for what property.
Mr. Procaccini stated that 56 Elm received the 2017 permit but that part of 56 Elm became part of 85 Nayatt. Mr. Hartmann confirmed that the lots were combined by approval of the Barrington Planning Board on September 29, 2017.
Mr. Procaccini clarified that the Sheffields had not taken the position that the statute is retroactive to 1982.
Ms. Hall asked what project was approved with the 2017 Maintenance Certificate. Mr. Procaccini stated it was the demolition of the single family home on 56 Elm. Ms. Hall questioned the Sheffields knowledge of CRMC’s jurisdiction. Mr. Procaccini clarified that the Sheffields were not well-versed in the regulations of CRMC regarding the posting of signs and erecting a chicken-wire fence.
Ms. Hall and Mr. Procaccini discussed the importance of understanding that if you are purchasing property the regulatory constraints of the property and also as it pertains to public access.
Mr. Willis explained, at the request of Mr. Gagnon, how coastal properties can be affected by the new state public access statute.
Mr. Flynn and Mr. Procaccini discussed the real estate disclosure act in regard to the purchase of the property. Mr. Procaccini stated that there were several owners from Mr. Kilmarx and that information may not have been passed between previous owners.
Ms. Reynolds asked if the applicant contacted CRMC prior to purchasing the property. Mr. Procaccini stated that Ms. Sheffield first contacted CRMC when they saw people walking along the wall and it was CRMC that stated the seawall was their private property.
Mr. Izzi clarified the Sheffields arguments:
Mr. Procaccini clarified that they are asking for the restriction of the public access stipulation to be removed as it should not be enforceable to the Sheffields as they did not have knowledge of the permit.
Ms. Reynolds asked about the extent of the public access along the riprap wall beyond their property lines. Mr. Procaccini stated that the riprap wall had shifted and now people walk across their seawall. Mr. Procaccini also stated that the abutting properties have obstructions on their walls such that the public cannot walk in those areas.
Holly Sheffield was sworn in and identified herself for the record. Ms. Sheffield made a brief statement to the Council regarding the history of their family and the reasons for purchasing this property. Ms. Sheffield stated that they performed substantial diligence prior to purchasing the property as well as commissioning land survey of the property. Ms. Sheffield explained their difficulties with people crossing their property and the steps taken to prevent access.
Lance Sheffield was sworn in and identified himself for the record. Mr. Sheffield explained the steps taken to prevent access.
No further questions from the Council. Nothing further from Mr. Procaccini.
Mr. Hartmann outlined the memo of CRMC Legal Counsel’s position on this matter going over constructive notice, government document which could have been uncovered with an APRA request, CRMC was contacted after the purchase of the property, lastly, precedence of invalidating a previously issued permit for the Sheffield’s purpose.
Mr. Hartmann stated that the Council is to issue a declaration one way or the other on whether they believe that the assent is valid, and that includes the condition. Or, Mr. Hartmann stated, the Council could decline to issue and schedule the matter for further consideration.
Mr. Hartmann further offered to the Council the Legal Counsel position in accord with their brief, that the assent is a government permit that does not need to be recorded to be valid, that constructive notice of the assent and condition to allow the C & D to be appropriate.
Mr. Hartmann confirmed for Chair Coia that the Assent which was issued to repair a seawall and provide public access on the retaining wall and that the Assent requirement had not been extinguished meaning that the two-foot-wide walkway was still required.
Mr. Hartmann also confirmed that if the Council were to affirm the assent with conditions, that much of the discussion had tonight may end up back in Superior Court. Ms. Hall added that the Superior Court Decision stated that the Council Decision needed to be sent back to Superior Court. Mr. Hartmann provided that whatever decision the Council made would be subject to a new appeal.
Mr. Gagnon asked if the Sheffields could apply for a new assent and request that the condition no longer apply.
Mr. Willis stated that everyone has the right to apply to our agency for any project, but staff review would require a review of the historical past record. Mr. Willis also stated that the appropriate application would be a modification.
Mr. Procaccini thanked the Council for their comments, clarifications, and alternatives and further clarified that they are asking that the 1982 Assent be declared unenforceable in regard to the public access which would also vacate the enforcement orders.
Motion
Mr. Izzi motioned, based on documents that we reviewed, specifically the filings from superior court and testimony of Mr. Harrington and the Sheffields, arguments of Council, first, based on notions of fundamental fairness and due process and the fact that the Sheffields were not aware of the restrictions and requirements of the 1982 assent before they were cited, that we dismiss the Cease & Desist orders that were issued in 2021 and 2022 the extent they're still open. Mr. Izzi’s motion also contained to ratify and confirm that the 1982 assent remains in full force and effect from this time forward.
Mr. Flynn seconded the motion for further discussion.
Mr. Izzi confirmed that his intent is such that with the ratification of the Assent, a new Cease & Desist Order could be issued if there was evidence of non-compliance with the Assent.
It was confirmed that the Assent should be recorded with the Town of Barrington
Ms. Hall expressed concern that the applicant claimed not to have knowledge of the regulations that would govern the use and maintenance of their property and stated that she believed there was constructive notice and that the Assent is valid. Ms. Hall also expressed concern about starting a precedence involving all of the other permits that had been issued but were not recorded.
Mr. Russolino asked for the motion to be restated.
Mr. Hartmann gave his understanding of the motion as seconded stating that it's a declaration that the Cease & Desist orders that are now still active are no longer -- or the Council does not consider them binding on the Sheffields, and at the same time, the assent still, from this point, binds the Sheffields.
Mr. Izzi clarified that enforcement action from 2022 is not effective against the Sheffields because they did not have actual constructive notice of the assent at the time that they were cited and that the assent is still valid and in full force and effect.
The validity of the Cease & Desist Order was discussed. Mr. Harrington stated that it is unclear as to whether the Sheffields are, at this time, stopping public access. Mr. Harrington also confirmed that the C&D’s were not recorded in the Town of Barrington.
Chair Coia polled the Council:
Mr. Russolino Aye
Ms. Hall No
Mr. Gagnon Aye
Ms. Reynolds No
Mr. Flynn Aye
Mr. Izzi Aye
Chair Coia Aye
Motion carried on a roll call vote with 5 in the positive and two in the negative.
7. ADJOURN
Motion to adjourn:
Motion: Mr. Russolino
Second: Mr. Gagnon
Motion to adjourn approved on a unanimous voice vote. The meeting was adjourned 8:07 pm.
Minutes respectfully submitted,
Lisa A. Turner
Recording Secretary
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