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Save Bay, Inc. v. State, Coastal Resources Management Council

Superior Court of Rhode Island

September 29, 2014

STATE OF RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL; ANNE MAXWELL LIVINGSTON, in her capacity as Chair of the Coastal Resources Management Council; GROVER J. FUGATE, in his Capacity as Executive Director of the Coastal Resources Management Council; FOUR TWENTY CORPORATION

Providence County Superior Court

For Plaintiff: S. Paul Ryan, Esq. Alexandra Graskemper, Esq.

For Defendant: Lauren E. Jones, Esq. Brian A. Goldman, Esq.



Appellant, Save the Bay, Inc. (hereinafter Save the Bay), appeals the March 6, 2014 decision of the State of Rhode Island Coastal Resources Management Council (CRMC), approving the application by Four Twenty Corporation (Four Twenty) to move an existing dwelling nineteen feet closer to wetland on its property at 1444 Ocean Road in Narragansett, Rhode Island. Jurisdiction in this instant matter is pursuant to G.L. 1956 § 42-35-15.


Facts and Travel

The case at hand has a compelling and unique history.[1] The underlying situation began at a point when Four Twenty purchased the lot designated as 1444 Ocean Road and hired a site engineer to survey the property and produce a site development plan. After this survey was conducted, Four Twenty obtained a building permit and assent from CRMC in 2008. See R. 69-75 (original CRMC Assent). With the proper paperwork in hand, Four Twenty proceeded to build a home overlooking the ocean. There was just one problem—the survey was incorrect. Four Twenty had built its home on the abutting lot, a lot it did not own. The abutting lot owner, a charitable trust, brought suit against Four Twenty for trespass. Ultimately, after an appeal to the Rhode Island Supreme Court, the abutting lot owner obtained an order directing Four Twenty to remove the home and all other improvements to the land.[2] As such, Four Twenty was faced with a choice: it could either simply demolish the home it spent over $600, 000 building or move the home onto the lot it did own.

Four Twenty's property contains coastal wetland and barrier beach. (R. 5.) Therefore, it needed to obtain assent from CRMC before it could relocate its home. See R.I. Admin. Code 16-2-1:100.1 (requiring "Council Assent . . . for any alteration or activity any portion of which extends onto the most inland shoreline feature or its 200 foot contiguous area" and defining "shoreline feature" as, inter alia, coastal beaches and coastal wetlands). Specifically, Four Twenty needed to obtain variances as per Section 120 of the Coastal Resources Management Program (CRMP) with relation to both buffer and setback. See R.I. Admin. Code 16-2-1:120(A) (outlining the criteria for a variance); 16-2-1:140(B) (describing setback requirements), and 16-2-1:150(D)(2) (expounding buffer zone standards).

Section 120 of the CRMP provides that:
"the application shall . . . be granted a variance only if the Council finds that the following six criteria are met.
"(1) The proposed alteration conforms with applicable goals and policies of the Coastal Resources Management Program.
"(2) The proposed alteration will not result in significant adverse environmental impacts or use conflicts, including but not limited to, taking into account cumulative impacts.
"(3) Due to conditions at the site in question, the applicable standard(s) cannot be met.
"(4) The modification requested by the applicant is the minimum variance to the applicable standard(s) necessary to allow a reasonable alteration or use of the site.
"(5) The requested variance to the applicable standard(s) is not due to any prior action of the applicant or the applicant's predecessors in title. . . .
"(6) Due to the conditions of the site in question, the standard(s) will cause the applicant an undue hardship. In order to receive relief from an undue hardship an applicant must demonstrate inter alia the nature of the hardship and that the hardship is shown to be unique or particular to the site. Mere economic diminution, economic advantage, or inconvenience does not constitute a showing of undue hardship that will support the granting of a variance." R.I. Admin. Code 16-2-1:120(A)

CRMC has been tasked by the legislature "to preserve, protect, develop, and, where possible, restore the coastal resources of the state for this and succeeding generations through comprehensive and coordinated long range planning and management designed to produce the maximum benefit for society from these coastal resources" as well as to "secure the rights of the people of Rhode Island to the use and enjoyment of the natural resources of the state with due regard for the preservation of their values." G.L. 1956 § 46-23-1. From this mandate, the CRMP was created, setting forth guidelines to protect this state's bountiful seaside treasures.

Here, in order to create an environmentally conscious proposal, Four Twenty hired Natural Resource Services, Inc. to aid it in creating a plan designed to comport with the CRMP. See R. 29-56 (Written Narrative in Support of Assent Application). Natural Resource Services, Inc. distilled the facets of this proposal in its report (NRS Report), id., which was contained within Four Twenty's application and reviewed by both CRMC staff and Council. (R. 2, 6.)

The NRS Report comprehensively addresses the six variance criteria, setting forth the ways in which the design features contained within its proposal are specifically formulated to limit disruption to the surrounding environment. (R. 31-33.) The NRS Report further attempts to craft a plan that, taken holistically, would integrate itself seamlessly into the overarching schema of the CRMP. (R. 36-53.)

As mentioned earlier, this proposal entails moving the house nineteen feet closer to the coastal wetland. (R. 7) (CRMC Staff Biologist's Report.) Accordingly, the NRS Report sets forth various implementations designed to prevent significant adverse environmental impacts resulting from construction on the property. To avoid filling any of the wetland, Four Twenty proposed building a steel bridge to allow access to the home. (R. 32.) In order to ensure growth of native plants beneath the bridge, the design includes open grates to allow light penetration. Id. This proposed bridge would also utilize a minimalist configuration of steel girders so as to not interfere with the passage of wildlife across the coastal wetland. Id. Similarly, the driveway is to be constructed entirely of permeable materials to facilitate stormwater infiltration into the wetland ecosystem. Id. To avoid nutrient loading, the proposed septic system applies a bottomless sand filter to optimize nitrogen removal. (R. 46, 122.) This septic system is also to be placed as close to Ocean Road as possible to maximize its distance from the wetland areas. (R. 8.)

In its Staff Biologist's Report assessing Four Twenty's proposal, CRMC stated that with regard to the fifth criterion for variance, the hardship was not due to the action of Four Twenty. (R. 8.) Rather, it found that an "'honest mistake' was made as opposed to a 'willful act' which [in turn] created the need for additional variances." (R. 8.) However, with respect to the first and second criteria for variance, CRMC staff cited concerns regarding the extent of the variances requested and the possibility that the proposed bridge could interfere with plant growth underneath. (R. 7.) As such, despite the design features contained within the NRS Report, CRMC staff found that Four Twenty's plan, as proposed, "is NOT consistent with Parts Two and Three of the Coastal Program, " and that the project would "result in additional environmental impacts beyond those already approved" in the previous assent. (R. 8.)

Notwithstanding these reservations, CRMC staff deferred to CRMC Council in assenting to the variances requested, stating that it did "not object to the . . . application, " and instead recommended certain additional stipulations to be implemented if CRMC Council was to accept the proposed plan. (R. 9-10.) These stipulations included both a conservation easement and a pedestrian right-of-way that would allow access to the shore. (R. 9-10.) CRMC staff noted in its report that with respect to the original application—the proposal to build the house that was ultimately constructed and thereafter ordered to be removed from the abutting lot—it had similarly deferred to the Council and that their assent had been conditioned on a similar conservation easement. (R. 6.) Perhaps most importantly, CRMC staff also recommended the wetland restoration plan outlined by Leland Mello of Natural Resource Services, Inc., which had been filed as an addendum to the original proposal shortly before the Staff Biologist's Report was released. (R. 10; 17-24.)

As such, as a part of its full proposal to the CRMC Council, Four Twenty produced, in Exhibit C, its specific plan to restore the wetland habitat on its lot—a proposal that, as mentioned supra, was recommended by the CRMC Staff Biologist's Report. (R. 17-24.) This plan included removing and mulching the invasive common reed (Phragmites australis) repeatedly over a period of three years as well as spending over $56, 000 purchasing and installing native wetland plants to restore the habitat to its original state in order to confer the benefit of greater wetland filtration to the area. Id.

In response to the application by Four Twenty for the variance, CRMC received three objection letters. The first, penned by Save the Bay, echoed the concerns of CRMC staff insofar as it cites potential issues with the bridge, the extent of the variances requested, and nutrient loading. (R. 84-85.) Save the Bay's letter also discussed its concerns about global warming and sea level rise, stating that following its projections the "dwelling's footprint [may be] at water's edge by 2100." (R. 85.) Save the Bay also contended that the undue hardship endured by Four Twenty is a result of their own actions—i.e. building the house on the wrong lot—and, as such, the requested variances cannot be granted. Id. The second letter, sent by Surfrider Foundation, similarly cites reservations regarding potential wetland degradation and states that a smaller house may leave less of an impact on the surrounding area. (R. 86-87.) The third letter, from abutting neighbor Mary Bourassa, in a similar vein objects to the potential disturbance of the wetland habitat. (R. 88.)

At the hearing on February 11, 2014, CRMC began by discussing undue burden in the context of an honest mistake. They referred to a memorandum sent in with the proposal by Four Twenty's attorney, citing DeFelice v. Zoning Bd. of Review of North Providence, 96 R.I. 99, 189 A.2d 685 (1963), wherein the Rhode Island Supreme Court upheld a decision of a zoning board finding that in the light of an honest mistake by a homeowner in building his home too close to the lot line, it was not arbitrary for the zoning board to decide that the homeowner would suffer an unnecessary hardship without a variance. (R. 96-98.) Four Twenty's attorney then discussed the extensive wetland restoration project proposed as well as the lack of alternatives for siting the home on the property. (R. 98-101.)

Next, CRMC heard from objectors Jane Austin and Tom Kutcher, acting as representatives of Save the Bay. (R. 101-102.) Tom Kutcher claimed that "putting the septic system right uphill from this wetland is the death knell to this wetland." (R. 104.) He went on to explain that the wetland on Four Twenty's property is full of the invasive common reed which, especially under high nitrogen conditions, has the capability to proliferate and outcompete native species. Id. Mr. Kutcher admitted that, regardless of whether Four Twenty moved its home, this common reed invasion would be inevitable. (R. 106.) Mr. Kutcher also raised ...

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