Mr. Reis gave a brief overview of the application to the Council stating that Easton Pond was formerly a tidal inlet that was dammed in the past for drinking water. Mr. Reis explained that the dam is still regulated by the Coastal Program at a Type 1 water body which would prohibit the installation of structural shoreline protection; however, the dam itself is considered a manmade shoreline. Mr. Reis stated that new plans were submitted showing a little bit of fill beyond the dam which may impact wetlands which exist at the base of the dam dike. This would require a Special Exception and has been properly advertised in the event that the Council indicated that it is a Special Exception, which staff recommends. Mr. Reis stated that the project fulfills a compelling public purpose as it is a repair to the public drinking water. Mr. Reis stated that staff recommended approval of the application.

Mr. Reis stated that one objection was received from Save the Bay stating that the City of Newport needed to start long range planning based on sea level rise impact.

Chair Livingston asked if there was a way the Council could ask the City of make provisions for sea level rise. Mr. Reis recommended approving the project and ask for ideas for future planning.

Mr. Affigne asked what the risk is to the reservoir at the moment from storm surge. Mr. Reis stated that the dam could be breached if a hurricane were to hit. Mr. Reis explained that the City of Newport’s water supply system is very complex which includes water that is in Little Compton and Tiverton.

Mr. Beaudette stated that he was familiar with the threat Easton Pond is under and is in favor of the project but also would like to put the City on notice so that they do some long range planning and that they cannot come back before the Council in the future without having done it.

Mr. Fugate stated that the City is well aware of the need for long range planning and that the Council has signed a letter of intent with ACOE – another flood control study – and that the water reservoir is one of the areas they will look at.

Chair Livingston opened the public hearing for Special Exception.

Robert Schultz Jr, Deputy Director of Engineering for Department of Utilities was sworn in and identified himself for the record.

Mr. Schultz clarified the potential of inundation in terms of what they have experienced to this point as far as South Pond which was breached and required significant repair at great expense. Mr. Schultz stated that the breach was due to wind action not storm surge.

Mr. Schultz explained that the Department of Utilities is doing long range planning whether its on the water end or water pollution control. Mr. Schultz explained that they had addressed climate change and sea level rise for Wellington Avenue facility, Washington Facility, on the wastewater end with flood-proofing doors and windows.

Attorney John Longo took over as legal counsel.

Mr. Schultz further explained that there was an NOV from the Department of Environmental Management for all of the reservoirs and the repairs had to be made. Mr. Schultz assured the Council that the City is working with Fuss & O’Neill on long term planning which will be ready to roll into their next capital planning cycle.

Mr. Longo asked questions regarding Special Exception criteria:

Mr. Schultz confirmed that although other locations were talked about they were not feasible and that all reasonable steps to minimize environmental impacts were taken.
Chair Livingston closed the Public Hearing.

Mr. Coia motioned to approve the Special Exception based on determining that the project serves a compelling public purpose; seconded by Mr. Gagnon.

Mr. Longo took a roll call vote.

Mr. Hudner Yes
Mr. Gomez Yes
Mr. Coia Yes
Ms. Reynolds Yes
Mr. Beaudette Yes
Mr. Gagnon Yes
Mr. Affigne Yes
Ms. Montanaro Yes

Motion to approve the Special Exception carried unanimously.

Mr. Coia motioned to approve the application for the project as presented; seconded by Mr. Beaudette.

Mr. Affigne asked to reaffirm Mr. Beaudette’s comment regarding long term planning for sea level rise.

Motion carried on unanimous voice vote.

Ms. Silva gave a brief overview of the project stating that the application came about as an enforcement action because the dock extended 10 feet longer than originally approved; and after further inspection of the facility, it was determined that the entire facility was built at a slightly different angle than was approved by the assent. Ms. Silva explained that the presence of a rock off shore was clearly shown on the original plans which were drawn showing the ramp built over the rock and the float seaward of the ramp but it appeared that because the dock was not built at the appropriate angle, the rock became an issue at the terminus of the dock. Ms. Silva stated that the rock could be moved several different ways and that the applicant failed to show that the rock could not be moved. Ms. Silva stated that staff is recommending as built approval of the fixed pier, but that the ramp will need to be reviewed. Ms. Silva stated that the staff recommended shortening the dock to 75’ beyond MLW.

Mr. Fugate explained to the Council that CRMC Assent language clearly stated that any deviation from the approved plans required approval from CRMC.

Ms. Silva stated that staff felt that they could support an as-built approval of the fixed pier portion of the dock. Ms. Silva clarified that she did not feel that the required variance for the additional 10-foot length because of the rock could not be supported

There was discussion amongst the members regarding the location of the float and the rock and the necessity to extend the dock.

Chair Livingston called for the applicant.

The applicant was sworn in and identified himself as Jeffery Morris.

Mr. Morris explained that when the dock was built it was fine, until the next spring, when it was evident that the float was impeded by the rock. Mr. Morris worked with the dock builder to alleviate the problem by extending the walkway which made it 10’ longer than it was supposed to be. Mr. Morris explained that he had gone through the Administrative Hearing process and told to submit an application for as-built. Mr. Morris explained that when the As-built application plans were being drawn it was discovered that the dock was built on an angle. Mr. Morris ended up needing his land surveyed which showed a different property line location. Mr. Morris stated that he had received an approval from the ACOE for the variance. Mr. Morris stated that he tried to correct the situation even though the dock was not built in the correct place through no fault of his own.

Chair Livingston explained to Mr. Morris that CRMC staff was recommending that the as built fixed pier but shorten it by 10 feet so that it is closer to the original approval. Mr. Morris stated that there is not enough water at the end of the dock and that the area is almost all ledge and it would not be easy to remove the rock.

Chair Livingston asked the objectors to be ready to testify.

There was discussion on other docks in the area and the dock length difference between the docks.

Mr. Gomez expressed his concern about setting a precedent. Ms. Silva stated that it is not very common for docks to be granted As-built assents. Ms. Silva stated that they were before the Council because the variance criteria were not met.

Mr. Coia asked for clarification on water depth during low tide. Ms. Silva confirmed that the area was shallow but that with the original approval location there would have been 2.5’ at the terminus of the dock. Ms. Silva explained that the standard is a minimum of 18” was water and MLW.

Mr. Morris reiterated that it was not his intent to be out of compliance.

Mr. Affigne asked Mr. Morris why he had not contacted CRMC to modify his plans. Mr. Morris stated that he deferred to his dock builder who he believed to be reputable. Further discussion continued regarding noncompliance and culpability.

Mr. Hudner asked for clarification regarding the reasoning for the extra 10 feet when the original facility was built 8’ short. Mr. Hudner asked why the dock would not be brought back to 75’ beyond MLW. Chair Livingston confirmed that Ms. Silva was recommending just that.

Mr. Fugate stated that if Mr. Morris cannot get in touch with the dock builder, Gooseberry Marine, that CRMC can proceed with the enforcement process with them.

Mr. Gomez reiterated his concern regarding setting of precedence.

Ms. Silva explained the administrative fee/fine situation stating that either way the applicant would pay either a $500 administrative fee or a $500 administrative fine. Mr. Reis explained that the dock builder had been dealing with CRMC and building docks for over 30 years and should have known better.

Objectors were called.

Steven Rebello was sworn in and identified himself for the record. Mr. Rebello started out saying he does not mean ill will to Mr. Morris but that he lives 37’ north of the property and that he does not like his dock or looking at it. Chair Livingston asked if the solutions being discussed remove Mr. Rebello’s objections. Mr. Rebello stated that he would be okay bringing the dock back 10’ and suggested shifting dock to a 90 degree angle – ramp and float.

Chair Livingston stated that in the past the Council has sent applications back to be worked out between applicant and staff.

Camille Nixon was sworn in and identified herself for the record as well as George Cameron Nixon. Mr. and Mrs. Nixon live at 17 Bradford Street in Warren – immediate neighbors to the north. Ms. Nixon expressed her objection to the length of the Morris dock. Mr. Nixon was not in favor of the “L” shaped suggestion.

Chair Livingston stated that it would be her recommendation to let staff and applicant work together to figure it out.

Mr. Affigne stated that there would be room to rotate the dock.

Mr. Gomez stated the he would rather the applicant move the dock back 10’ and if applicant wants to consider other the other option, a modification to his permit can be submitted.

Mr. Gomez made a motion to move dock back 10’ and approve the dock’s as-built angle. The motion was seconded by Mr. Gagnon and Mr. Hudner.

Mr. Coia expressed concern that the filing of a modification would require the applicant getting engineered plans.

Mr. Gomez reiterated his motion to move dock back 10’ stating that if applicant prefers to look at alternate then it can be tabled.

Mr. Affigne asked how the motion would affect the fine. Mr. Fugate stated that if the Council agreed to modified the assent, because that is not a denial, a fine would not be triggered for the builder or applicant. Ms. Silva stated that the application would still pay a $500 administrative fee and sign a Consent Agreement to close out the enforcement file.

Mr. Coia questioned the $500.00 administrative fee. Mr. Fugate stated that the Hearing Officer already assessed the fee. Mr. Coia asked if the Council can waive the fee. Chair Livingston stated that the Council does not get involved in fine situations.

Mr. Gomez’s motion to move the dock back 10’ but remain on the angle was carried on a unanimous voice vote.

Mr. Reis gave a brief overview of the application explaining that the application proposed to mitigate further release of petroleum from impacted soils association with the former use of this property as an oil terminal from 1989 to 1993. Mr. Reis explained that the site has a permit for redevelopment under the Metrobay SAMP. Mr. Reis stated that the proposal would be
accomplished by the removal of an existing oil/water separator that still exists along the shoreline, remove the existing riprap revetment, excavate and remove petroleum impacting the soil and place and environmental cap and cap armoring in the intertidal zone in the Providence River. Mr. Reis stated that the project was located in Type 5 waters. Mr. Reis stated that CRMC review staff has evaluated the uses and believe that the work performed to clean up the site is consistent with the Council’s policies and recommends that it does not require a Special Exception. Mr. Reis explained that the CRMC staff coordinated with the Army Corps of Engineers and the DEM Water Quality Division and recommend the approval of the application.

Mr. Reis explained that due to issues, the consultants will be reapplying for all phases of development in the near future.

Mr. Gomez stated that based on staff recommendation, he is in agreement with it.

Mr. Beaudette agreed with Mr. Gomez and commented on the amount of fill required.

Mr. Affigne asked Mr. Reis about Save The Bay’s letter. Mr. Reis stated that CRMC staff met with Save The Bay and discussed the construction of a living shoreline in that location. Save The Bay met with Arcadis, who represents Chevron, and rescinded their objection.

Mr. Reis stated that public access would be provided by the developer in the form of a kayak ramp which needs to be in place within two years, publicly accessible and properly marked and signed.

Tim Faulkner from EcoRI News stated that he had looked at the application and asked what the square footage of fill would be.

The consultant, Donna Pallister, was sworn in and identified herself for the record. Ms. Pallister confirmed that 760 cubic yards of fill would be brought in.

Mr. Gomez motioned the approval of the application with a second from Mr. Beaudette and Mr. Hudner.

The motion carried on unanimous voice vote.