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Hang Ten LLC v. State

Superior Court of Rhode Island

May 8, 2015

HANG TEN, LLC Plaintiff,

Providence County Superior Court

For Plaintiff: William R. Landry, Esq., Stephen J. Reid, Jr., Esq.

For Defendant: Michael A. Ursillo, Esq., Brian A. Goldman, Esq.



In this administrative appeal, appellant Hang Ten, LLC (Hang Ten), owner of the Ocean Mist Restaurant (Ocean Mist), challenges a decision by the Coastal Resources Management Council of the State of Rhode Island (the CRMC), approving the Town of South Kingstown's (the Town) application to construct a sheet pile wall along Matunuck Beach Road (the Road). Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth herein, the Court affirms the CRMC's decision.


Facts and Travel

A detailed recitation of the underlying facts of this case has been provided by this Court in its March 13, 2014 Decision. See Hang Ten, LLC v. State of R.I. Coastal Res. Mgmt. Council, 2014 WL 1091376 (R.I. Super. Mar. 13, 2014) (hereinafter, Hang Ten I). Consequently, this Court will provide only the facts it deems necessary for ruling on the instant appeal.

In August of 2011, the Town submitted an application to the CRMC requesting permission to construct a concrete and steel sheet pile wall[1] along a 202-foot stretch of the Road in the Town, just west of the Ocean Mist. (Town Appl. for State Assent, Aug. 30, 2011 (Application)); (Tr. at 18, Apr. 10, 2012 (Tr. I)). The Road is critical infrastructure for the surrounding community, as it provides the only means of ingress and egress for 240 homes and contains a water utility system servicing 1666 customers. (Tr. I at 25-27, 31.) Unfortunately, it is also highly vulnerable to flooding and damage from storm-induced erosion due to its close proximity to the ocean. Id. at 52. Because such erosion could cause the collapse of the Road and the impairment of the water pipes, the Town sought permission to build the wall in order to prevent erosion of the soil under the Road. (Application; Tr. I at 25.) For its part, Hang Ten was concerned that the planned location of the proposed wall-directly abutting the Ocean Mist- would cause storm surges to deflect off the wall and into the Ocean Mist, thereby undermining its foundation. (Tr. I at 65-66.) Moreover, Hang Ten maintained that the proposed wall would exacerbate the Road's vulnerability by intensifying Matunuck Beach's current rate of erosion. Id.

Ultimately, on June 26, 2012, the CRMC approved the Town's application to build the wall (the June 2012 Decision). (Br. of Defs./Appellants, Ex. A.) Hang Ten appealed, and this Court affirmed the June 2012 Decision, in part, and reversed and remanded, in part. See Hang Ten I at *1. This Court found that while the CRMC's finding on the issue of no reasonable alternative was sufficiently supported by the record, the agency's finding that the Town took all reasonable steps to minimize the environmental impacts and use conflicts of the wall was arbitrary and capricious.[2] Id. at *4, 6. Accordingly, this Court remanded the matter to the CRMC "for the purpose of affording it an opportunity to clarify and complete its Decision" on that issue. Id. at *6.

On June 24, 2014, the CRMC held a hearing on the issue of the environmental impacts and use conflicts of the proposed wall. (Tr. at 15-16, June 24, 2014 (Tr. II)). Given that the CRMC's membership had changed since the June 2012 Decision, the CRMC properly considered the issue de novo.[3] (Br. of Defs./Appellants, Ex. C, Findings of Fact and Decision Pursuant to Superior Court Remand) (hereinafter, Decision). Town Manager Stephen Alfred and engineer Richard St. Jean testified that the environmental impacts of the Town's proposal would be minimal. (Tr. II at 32, 55.) Engineer Russell Morgan testified in support of Hang Ten's contention that certain alternatives to the wall would have less of an environmental impact. Id. at 81-84. Ultimately, on September 29, 2014, the CRMC again approved the Town's application. Id. Hang Ten then filed a timely complaint pursuant to § 42-35-15, asking this Court to reverse the CRMC's decision.


Standard of Review

When reviewing the decisions of an administrative agency such as the CRMC, this Court "sits as an appellate court with a limited scope of review." Mine Safety Appliances Co. v. Berry, 620 A.2d 1255, 1259 (R.I. 1993). Appellate review of agency actions is governed by the Rhode Island Administrative Procedures Act, which permits this Court to affirm, remand, or modify an agency's ...

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