In accordance with notice to members of the Rhode Island Coastal Resources Management Council, a meeting was held on Tuesday, June 27, 2017 at 6:00 p.m. in Conference Room B & C, Administration Building, One Capitol Hill, Providence, RI.

Members Present
Anne Maxwell Livingston, Chair
Raymond Coia
Don Gomez
Ron Gagnon, DEM Rep
Tony Affigne
Joy Montanaro
Paul Beaudette
Trish Reynolds

Staff Present
Grover Fugate, Executive Director
Jeff Willis, Deputy Director
Dave Beutel, Aquaculture Coordinator
Janet Freedman, Coastal Geologist
Anthony DeSisto, Legal Counsel
John Longo, Legal Counsel

 

1. CALL TO ORDER

Chair Livingston called the meeting to order at 6:00 p.m.

2. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Chair Livingston called for approval of the minutes from the previous meeting.

Mr. Coia motioned for the approval of the minutes from the June 13, 2017 Semimonthly meeting; seconded by Mr. Gomez. Motion carried on unanimous voice vote.

3. STAFF REPORTS

• CRMC staff met this morning with DWW permitting agents regarding the Pre-construction and Operation Surveying plan for potential development of Southfork to provide energy for Long Island through the Long Island Power PPA.
• July 24th there will be a joint meeting of the Fishermen’s Advisory Board and Habitat Advisory Board to meet with Vineyard Wind to go over their project.

4. SUBCOMMITTEE REPORTS

None were heard.

5. PRESENTATION – Tom Adams, Vice President of Power Business Development of ABS

Mr. Adams presented on the following topics regarding DWW Block Island Wind Farm:

• Installation Commissioning Status – FDR and FIR final reports being finalized and will be on way to Mr. Fugate. The reports will contain the letters that will certify the project compliance with FDR, FIR, and OSAMP – one exception is a pending repair
• Foundations & Repair Status – BI2 is complete and found consistent with project requirements; pending repair activity pertains to transition piece and tower flange nonconformity which will be fixed by DWW by August 2017. Mr. vanBeek explained the flange repair.
• O&M verification plan – Reviewing contract change order for five years after the initial assignment which ends at the end of 2018. A five year verification cycle is proposed to include 4 years of document review of O&M activities and a review to confirm compliance with OSAMP and O&M plans submitted. Year five will have an on-site inspection of all units.

The Council discussed the need for more frequent visits after the five (5) year timeframe. Mr. Adams explained that through each inspection they could propose additional coverage and activities.

6. APPLICATION REQUESTING MODIFICATION BEFORE THE FULL COUNCIL FOR DECISION:

2001-05-133 ROME POINT LLC -- Modify an existing aquaculture site: to use floating cages on the offshore (eastern) part of the lease site from May 1 through October 31 in the location that the submerged sugar kelp lines are used from November 1 through April 30. CRMC will require lighted buoys for the two offshore corners of the lease site. Located South of Rome Point in the West Passage of Narragansett Bay, North Kingstown, RI.

Mr. Beutel gave a brief overview of the application to modify the applicant’s current aquaculture lease to grow kelp during the November 1 to May 1 timeframe. Mr. Beutel stated that the applicant was asking to add floating cages to the kelp lines from May to November. Mr. Beutel added that the applicants are very experienced aquaculturists and that the reason for the request is that floating cages grow a better quality product to market with less labor. Mr. Beutel stated that there are no houses in Rome Point area, and the site is adjacent to a park and hiking area but not heavily area used for fishing.

Mr. Beutel stated that he and the aquaculturists have worked with the Harbor Commission and that the offshore site corners have lights and high flyers. Mr. Beutel stated that with the Modification of Assent there was an opportunity for CRMC to stipulate the corner buoy marking. Mr. Beutel stated that no objections to the project were received and that CRMC Staff recommended approval.

Mr. Beutel confirmed:

• the site will remain at least 500 meters away from a seal haul out site at the rocks on the Rome Point which meets federal regulations;
• the water depth for this area is greater than 16 feet;
• access to the lease is through Wickford Harbor.

Mr. Beaudette motioned, seconded by Mr. Gomez, for the approval of the modification of lease. Motion carried on a unanimous voice vote.

2001-08-080 ROME POINT, LLC -- Modify an existing aquaculture site to: 1) grow sugar kelp Saccharina latissima on the offshore (eastern) half of the lease site on submerged longlines from November 1 through April 30; 2) to use floating oyster cages on the same longlines from May 1 through October 31. CRMC will require lighted buoys to mark the offshore corners of this site. Located at Rome Point in the West Passage of Narragansett Bay, North Kingstown, RI.

Mr. Beutel explained to the Council that this application for modification was requesting kelp line and floating cages when not kelp season.

Mr. Beutel confirmed:

• the same stipulations would be in place;
• site is located adjacent to the previously heard agenda item; and,
• this site was further from the seal haul out area.

Mr. Gomez motioned, seconded by Mr. Gagnon, for the approval of the modification.
The motion carried on a unanimous voice vote.

7. APPLICATIONS REQUIRING A PUBLIC HEARING FOR SPECIAL EXCEPTION REQUEST AND ARE BEFORE THE COUNCIL FOR DECISION:

2016-12-011 ANTHONY J. VICTORIA REVOCABLE TRUST -- Construct and maintain: an “as built” snow fence extending from the base of the restored dune to 46 feet seaward on the beach berm. The fence extends into the swash zone at times of higher than normal wave energy and/or astronomical tides. The fence requires a Special Exception to the Coastal Resources Management Plan Sections 210.1.D.3 Alterations to beaches adjacent to Type 1 and Type 2 waters are prohibited except where the primary purpose of the project is to preserve or enhance the area as a natural habitat for native plants and wildlife. Located at plat J, lot 25; 110 Sand Hill Cove Road, Narragansett.

2017-01-049 WHEELHOUSE PROPERTIES RI, LLC -- Construct and maintain an “as built” snow fence from the base of the dune to 40+/- feet seaward on the beach berm. The snow fence will extend into the swash zone at times of higher than normal wave energy and/or astronomical high tides. This requires a Special Exception under the Coastal Resources Management Plan Section 210.1.D.3. Alterations to beaches adjacent to Type 1 and Type 2 waters are prohibited except where the primary purpose is to preserve or enhance the area as a natural habitat for native plants and wildlife. Located at plat J, lot 15; 130 Sand Hill Cove, Narragansett, RI.

Ms. Freedman gave a brief overview of both applications stating that the property owners were asking for “As-Built” approval for snow fencing on the beach extending further than 40’ onto beach berm. Ms. Freedman explained that snow fencing that is too far from a dune does not provide any benefits of increasing the foredune height and weight to contain more resiliencies for storm surge. Ms. Freedman explained that the snow fencing is effective at capturing wind-blown sand but being so far away from the dune is actually making the foredune zone less resilient. Ms. Freedman explained that having fencing extend too close to the swash zone, moderate storms could destroy the fencing leaving wooden fence posts in areas that people are recreating, creating a hazard to both beach goers and sea animals. Ms. Freedman stated that at times the fences block lateral access along the shore which is guaranteed under the RI Constitution. Ms. Freedman stated that this particular alteration’s primary purpose is contrary to our dune policy which is the preservation or enhancement of areas of natural habitat for plants and wildlife and therefore requires a special exception.

Ms. Freedman confirmed for Chair Livingston that lateral access was blocked at high tide as the fences are beyond the seaweed line which people often use as an indication of high tide mark.

At the request of John Longo, CRMC Legal Counsel, Ms. Freedman gave an overview of her education, qualifications and experience as a Coastal Geologist stating that she had a Master’s of Science Degree in Geology from URI, has belonged to the Geological Society of America, and has been an expert witness in a few trials such as the Palazollo case and the Westerly case heard in Superior Court.

Mr. Fugate stated that the CRMC is very protective of RI’s Type 1 shorelines and beaches associated with it, and that the only time we allow alterations is if the alteration is designed to enhance the area as a protected feature or a habitat area. Mr. Fugate further explained that CRMC has permitted sand fencing in this area that was designed to enhance the feature however the issue became that some of the fencing has been placed subsequent to that without a permit and in a position that will not enhance the dune but will weaken the system for future storms.

Mr. Beaudette asked if the public would have access to the area that the fence was placed in. Mr. Fugate stated that the public can access below the MHW mark which people often misinterpret. Mr. Fugate stated that people often stray to the private area of the sand from the adjacent State beach area.

Mr. Affigne asked the purpose of the fence and the motivation behind keeping the fence if it is not helping the dune system. Ms. Freedman confirmed that parallel fencing was ok and that shorter perpendicular fencing from the parallel fence could be discussed as well as zigzag fencing.
Chair Livingston opened the public hearing on both applications -- Anthony J. Victoria Revocable Trust and Wheelhouse Properties RI, LLC.
Attorney William Landry was present to represent both applicants and stated he would address both applications at the same time.

Mr. Landry briefly explained that both properties had significant damage and erosion as a result of Hurricane Sandy, and as a result, an Emergency Permit was issued for Mr. Victoria after Hurricane Sandy for dune restoration and snow fence installation. Mr. Landry stated that the dunes are dynamic, not always in the same place, and that the snow fencing has been placed a short distance more seaward than approved but still on personal property. Mr. Landry stated that the seaweed line, or swash line, is not an accurate indicator of where the MHW mark or property line is. Mr. Landry stated that it had been a long time since there has been a definitive marking of where the public trust area begins and where the private property ends. Mr. Landry stated that they disagree that the snow fencing’s primary purpose is not to assist in protecting, assisting, restoring and enhancing the dune through nonstructural means. Mr. Landry stated that because snow fencing is considered nonstructural it was not a prohibited activity requiring a special exception. Mr. Landry disagreed that there is a 15-foot rule where snow fencing cannot be more than 15 feet seaward of a dune’s scarp or the vegetation area associated with the dune; as this rule is not part of the Coastal Program. Mr. Landry stated that the properties are located within close vicinity of Roger Wheeler State Beach and that the properties are inundated on a daily basis by people from the beach who use the applicant’s property freely. Mr. Landry stated that people are using the dune area for recreational purposes because there are activities that are not allowed on the State beach area. Mr. Landry stated that the owners are not before the Council to stop the traffic on their private property but that they would like to have the snow fencing to keep and restore the dune area which has grown and vegetation has grown because of it significantly.

Mr. Landry stated that both applicants do not believe that an application for special exception is required and object to that characterization.

Mr. Landry referred to RICRMP Section 210 stating that structural alterations of a foredune can be allowed where the primary purpose of the project is nonstructural protection, restoration, nourishment or improvement of the feature as a natural habitat for native plants and wildlife. Mr. Landry stated that snow fencing is not a structural alteration to the beach and that they are a nonstructural means of assisting and stabilization of the dunes which is not a prohibited activity.

Mr. Affigne asked why Mr. Landry introduced the beachgoers from the State Beach going onto the private section. Mr. Landry stated that the snow fencing was not meant to keep people off the property but to protect and preserve the dunes from being trampled and destroyed thereby giving the vegetation an opportunity to reestablish itself. Mr. Landry confirmed for Mr. Affigne that he did not believe that the fences impede public access to that section of the shoreline as he stated that the snow fencing is on private property.

Mr. Landry called Anthony Victoria as his first witness. Mr. Victoria was sworn in and identified himself for the record as being the owner of 110 Sand Hill Cove Road, Narragansett.

Mr. Victoria gave a brief history of his ownership of the property explaining that he had purchased the property just days before Sandy after which he obtained Emergency permits to restore the dune area and to apply snow fencing a short distance from the property line to protect the ever changing dune area. There was discussion about the inaccurate use of the seaweed line by beachgoers to determine the MHW mark.

Mr. Victoria testified that the snow fencing, in its current location, has worked successfully to protect and restore this dune and explained that he was seeking to continue to enhance the beach area through non-structural means.

Mr. Landry disagreed with Ms. Freedman’s statement of “CRMC’s 15’ rule” where snow fencing cannot be more than 15’ seaward of a dune. Mr. Landry stated that this rule was not in CRMC regulations and does not feel that staff can enforce a rule that is not hard and fast.

Mr. Victoria further testified that both properties are inundated on a daily basis and that beach goers use the property as if it is part of the state beach area with the exception that beyond Roger Wheelers boundary there are no restrictions regarding activities. Mr. Victoria testified that he had discussions with RIDEM State Officials regarding the overflow from the state beach area and Mr. Landry had sent a letter on the property owner’s behalf to RIDEM Director Janet Coit, with copies to CRMC Executive Director and Chair along with copies of pictures that had been introduced as Exhibits 1A, 1B, 1C, and 1D. Mr. Victoria confirmed that the pictures were a fair and accurate depiction of a typical summer day and the vegetated part of the dune. Mr. Landry’s letter to RIDEM Director Janet Coit was introduced as Exhibit 4. Mr. Victoria testified that the property owners had not received an acknowledgement from RIDEM or CRMC in regards to the letter from Attorney Landry. Mr. Victoria testified that he had never experienced a situation where the snow fencing became a danger when in disrepair.

Mr. Affigne asked for clarification from Mr. Victoria on the reason for the snow fencing as the testimony seemed to indicate that the snow fencing was to keep beachgoers from property. Mr. Victoria assured the Council that the dune fencing was for dune restoration and that he felt the current configuration was working to stabilize protect and reestablish the dune except for when the dunes are trampled by the overflow from the state beach area. Mr. Affigne established for the record that the initial snow fencing was approved by the Council but the current configuration of snow fencing was not applied for by the applicant nor approved by the Council. Mr. Landry stated that the 2012 permit did not specify fence location but that Ms. Freedman’s calculations regarding the more landward location of the fencing are accurate.

Ms. Freedman pointed out to the Council that fencing helps to vegetate the dune area but once the vegetation is established there is no need for the fence. Ms. Freedman also pointed out that the snow fencing on the two properties may be collecting sand that would naturally flow down the beach to help establish healthier dunes along other properties.

Mr. Gomez asked if the fences in their perpendicular location would act as a groin. Ms. Freedman stated that the fence stops wind velocity and will impact the other side of the fence impacting downwind properties.

Ms. Montanaro asked the duration of the snow fencing permit. Ms. Freedman stated that the permits were issued in five (5) year increments, after which the property owner can reapply giving CRMC the opportunity to see shoreline change and accretion. Ms. Freedman confirmed that other properties that had perpendicular fences (shown in the exhibit photos) removed them when they received violation orders and that some of the shorter perpendicular fences had permits.

Chair Livingston called for a 5 minute recess.

Mr. Landry called for John Carter as a witness. Mr. Carter was sworn in and identified himself for the record -- John Carter of John C. Carter Co., a landscape designer in Narragansett, Rhode Island. Mr. Carter confirmed that he was a registered landscape architect with 30 years of experience in residential and commercial development. Mr. Carter stated that he had helped land owners with the CRMC permit process for building, modifying, and restoring; and also, responding to violations. Mr. Fugate stated that Mr. Carter had been before the Council before as an expert witness in the field of landscape architecture.

Mr. Carter listed his qualifications and stated that he is a certified erosion control specialist from the soil and water conservation society and that he specifically worked on dune restoration, dune replanting, design of dune walkover structures, coastal bluff, stabilization, and restoration projects.

Mr. Carter stated that in the fall of 2016, he was asked to assist the owners in submitting an as-built application to request permission to maintain the fencing that they had been notified to remove. Mr. Carter testified that had worked with many of the property owners in that area stating that he was familiar with the past and present landscape conditions. Mr. Carter confirmed that he had compiled the documents in Exhibit 3.

Mr. Landry questioned Mr. Carter regarding the location of the properties in conjunction with the location of Roger Wheeler Beach. Mr. Carter stated that he thought the issue was not the zigzag perpendicular nature of the fence but the length of the fence. Mr. Carter went on to describe the other photos for Mr. Landry. Mr. Carter testified to the effectiveness of the fence in sand collection on both properties. Mr. Carter reminded the Council that the area is not as natural as others because it sits inside a manmade harbor enclosed with revetments – these manmade fingers, groins and pavements are more impactful than the fence. Mr. Carter also testified that the snow fencing shown in his Exhibit 3 is considerably further on Roger Wheeler beach than on the private properties.

Mr. Carter confirmed for Mr. Landry that he is familiar with RI’s coastal regulatory program and how it has evolved over the years. Mr. Carter testified that snow fencing is not written in the Redbook as a structural protection device and that over the years it was accepted as a best management practice. Mr. Carter stated that he believed Mr. Victoria’s first concern is stabilization to help protect his home, the public, and the state road which carries utilities. Mr. Carter testified that dunes are dynamic features and that they retreat under big storms and build back out through the enhancement of fencing which has the added benefit of protecting the dunes from people walking through them.

Mr. Fugate questioned Mr. Carter as to whether he is a Coastal Geologist. Mr. Carter confirmed that he is not a coastal geologist.

Mr. Fugate stated that snow fencing does not always require a special exception but that it depends on the location and intention of the fencing; that some of the most contentious cases the Council has seen have been fencing issues; and that fences are considered structures under the program.

Mr. Fugate stated that CRMC asks that the dune build out from the primary dune which enhances the stability and fortifies the feature as a storm abatement device. If the material accumulated further out from the primary dune, it is susceptible to wave action, material carried off shore and lost out of the system which is why CRMC is asking that the fence be pulled back and rearranged.

Applicant’s Exhibit was marked as full.

Mr. Beaudette questioned Mr. Carter about getting permits for snow fencing. Mr. Carter stated this was the first time he had been involved in a discussion to this extreme regarding snow fencing.

Mr. Gagnon asked if the applicants had attempted to sit with CRMC staff to look at alternative fencing configurations without being inconsistent with CRMC management plan. Mr. Carter explained that it was the applicant’s choice to apply for what is there now.

Mr. Affigne stated that based on the CRMC Coastal Geologist’s report, he is inclined to think the applicant should consider working with staff to come up with a plan that’s consistent with what the coastal geologist thinks is appropriate. Mr. Carter explained that this is not simply a geological issue but includes vegetation, restabilization, crowd control and environmental management. Mr. Affigne stated that he was not in favor of the application as is.

Mr. Beaudette asked for clarification on the violation aspect of the application. Mr. Landry stated that Ms. Miguel CRMC Enforcement Staff issued a Notice of Violation and Findings letter which provided time for the application to be filed to approve the snow fencing and an agreement was made for a timeframe extension once other property owners came on board.

David Prescott, Coast keeper for Save The Bay was sworn in and identified himself for the record. Mr. Prescott, speaking on behalf of Save the Bay urged the Council to deny the as-built snow fencing applications stating the possibility of creating a precedent situation and promoting the limitation of lateral access. Mr. Prescott stated that Save The Bay supports the staff report and urged the Council to deny both applications. Mr. Prescott clarified for Mr. Gomez that the initial 15’ of fence would not be objected to by Save The Bay.

Akhou Birgi was sworn in and identified himself for the record. Mr. Birgi stated that he was a neighbor between the Victoria property and the Wheelhouse property, that he supported the fences to help restore the dune area and that he felt the fence was important for restoration and foot traffic with destroys the dune area. Mr. Birgi stated that he did have vegetation on his property but not as much as his neighbors, nor did he have as much sand/dune area.

Mr. Landry addressed the council stating that he did not feel it was the staff’s role to make a definitive conclusion on whether or not these applications required a Special Exception. Mr. Landry stated that after talking with Anthony Victoria and being authorized to represent the Wheelhouse property owner, that they did not object to working with staff, without prejudice, to try to come up with a constructive conclusion.

Mr. Fugate made a suggestion to the Council to continue the application until the August meeting so that the property owners and staff could come to an agreement, but if an agreement could not be made, the Council would act at the August meeting.

Mr. Gomez stated his he was of the opinion that the appropriate footage and configuration of the fence is beneficial and effective; and that he would like to see a time limit for the permit so that CRMC can revisit the effectiveness of the snow fencing in light of environmental factors such as sea level rise and climate change.

Ms. Freedman summed up the discussion by confirming that everyone agreed that the foredune zone is an important feature in terms of coastal resilience and habitat; and, all parties involved want to protect the dynamic coastal feature. Ms. Freedman also stated that the swash line being landward of the fence was not a rare occurrence; the tide mark was landward of the fencing earlier in the day when CRMC did a site visit. Ms. Freedman confirmed that she was in support of further discussions with the property owners.

Mr. Affigne expressed his hope that the constitutional and statutory protection of public access to the shoreline be upheld.

Chair Livingston closed the public hearing and stated that it seemed the Council was in agreement to send the applications back to staff for further discussions and bring the applications back before the Council in August.

Mr. Gagnon motioned to continue the application to the August Semimonthly Meeting. Ms. Reynolds seconded the motion.

Discussion was had regarding whether an agreement could be approved administratively.

Mr. Beaudette expressed concern that the fencing will remain and the situation linger through the summer.

Mr. Landry suggested coming back before the Council at the July meeting.

Mr. Gagnon stated he would amend his motion to bring the applications back before the Council in July.

Mr. Beaudette inquired about the process if the application was denied at this meeting. Mr. Fugate stated that if the application was denied with prejudice there was an avenue for appeal. Discussion was had regarding enforcement process if denied and fences were not removed during the appeal process.

Mr. Gagnon motioned to continue the applications until the Semimonthly meeting on July 25th. The motion was seconded by Mr. Beaudette and Ms. Montanaro.

The motion carried on unanimous voice vote.

Mr. Affigne expressed his appreciation of working with the Council and staff and bid the Council a fond farewell.

8. ADJOURN

Respectfully submitted,

Lisa A. Turner
Recording Secretary

CALENDAR INDEX