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Lebrecque v. State of Coastal Resources Management Council

Superior Court of Rhode Island

February 16, 2016

RODNEY J. LEBRECQUE
v.
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; PAUL MERCURIO, and CAROL MERCURIO

Providence County Superior Court.

For Plaintiff: S. Paul Ryan, Esq.

For Defendant: Brian A. Goldman, Esq., Joseph DeAngelis, Esq.

DECISION

PROCACCINI, J.

Before this Court is the appeal of Rodney J. Lebrecque (Mr. Lebrecque) from a final decision of the State of Rhode Island Coastal Resources Management Council (the Council) approving an application by Appellees Paul and Carol Mercurio (Mercurios) to construct a dwelling on their lot located on Glenwood Avenue in the Town of Narragansett, Rhode Island. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

I

Facts and Travel

In 1997, the Mercurios purchased a substandard, undeveloped lot (the Property) in a residential neighborhood located on Glenwood Avenue in the Town of Narragansett, Rhode Island. The Property contains approximately 4760 square feet of land.[1] A damaged revetment, or retaining wall, forms the eastern boundary of the Property along the Rhode Island Sound. Glenwood Avenue borders the Property to the west. The Property is located within 200 feet of the Rhode Island shoreline and falls under the jurisdiction of the Rhode Island Coastal Resources Management Program (the CRMP). CRMP § 100.1. Pursuant to the CRMP, any residential development on the Property is subject to a twenty-five foot coastal buffer zone[2] (the Buffer Zone) as well as a fifty foot minimum construction setback (the Setback). CRMP §§ 140 and 150. Additionally, the Property is located within a "V19 Flood Zone, " or high hazard flood area.

In 2003, the Mercurios applied to the Council for a Preliminary Determination to ascertain whether they could construct a single-family twenty-foot-by-thirty-two-foot residence on the lot (the Project). Council staff (the Staff) recommended denying the Project. The Staff found that due to the small size of the Property, the Project would require "significant variances" from the CRMP Setback and Buffer Zone[3] as well as from the front yard setback requirements of the Town of Narragansett's Zoning Ordinance (the Zoning Ordinance). Further, the Staff determined that because the Property is located in a V19 Flood Zone, the fifty foot Setback was particularly important.

Undeterred, the Mercurios applied to the Town of Narragansett Zoning Board (the Board) requesting a special use permit and dimensional variances. The Board denied the Mercurios' application on the grounds that due to the Property's small size and location in a V19 Flood Zone, the proposed structure presented a hazard to surrounding properties. The Mercurios appealed the Board's decision to the Superior Court. On appeal, the Court held that the Board had exceeded its statutory authority and erroneously analyzed the application under the CRMP's variance criteria. Mercurio v. The Zoning Bd. of Review of Narragansett, No. WC 2006-0056, 2007 WL 4471143, at *15 (R.I. Super. Nov. 20, 2007). The Court overturned the Board's decision and remanded the matter to the Board with instructions to grant the special use permit and dimensional variances. Id.

Following the appeal, the Mercurios applied to the Council seeking final approval of the Project as well as variances from the Setback and Buffer Zone (the Project Application). In addition to the Project Application, the Mercurios submitted a second application to the Council seeking approval to repair the damaged revetment on the Property (the Revetment Repair Application). For reasons not apparent in the record, approval of the Revetment Repair Application was made contingent upon the Council approving the Project Application. The Council opened a public notice and comment period and set a hearing date for the Project Application. The Staff's engineering, biology and geology departments each reviewed the Mercurios' Project Application and submitted memoranda recommending that the Council deny the Project.

The Staff Engineer concluded that the Property was too small to support the Project. He determined that in light of the Property's location in a V19 Flood Zone, the Project posed significant adverse environmental impacts to the surrounding area and would be very vulnerable during storm events. In particular, the Engineer concluded that "[t]o allow the siting of a new residence which requires the issuance of a [forty-one] foot variance . . . in such an environment would seem to be contrary to sound coastal management." Appellant's Ex. 5, at 2. Similarly, the Staff Biologist determined that the Property was only suitable for recreational as opposed to residential use. In his report, the Staff Biologist went through each of the six variance criteria outlined in the CRMP and determined that the Project Application did not meet "the required burdens of proof for the granting of the necessary [S]etback and [B]uffer [Zone] variances." Appellant's Ex. 6, at 6. Likewise, the Staff Geologist recommended that the Council deny the Project Application and noted that even if the Mercurios repaired the revetment, the Property was likely to experience significant erosion and further loss of land "within the mere [eight foot] [S]etback." Appellant's Ex. 8, at 4.

On February 12, 2013, the Council conditionally approved the Revetment Repair Application. On January 28, 2014, the Council held a hearing on the Project Application. At the hearing, the following-Dr. David R. Carchedi (Dr. Carchedi), a civil engineer; Dr. Peter S. Rosen (Dr. Rosen), a coastal geologist; and Mr. Mercurio-all testified in support of the Project Application. The Council also heard from Mr. Lebrecque, a property owner who owns a residence located directly across from the Property, who testified in opposition to the Project Application.

During the hearing, Doctors Carchedi and Rosen refuted the opinions of the Staff and testified that the Project would not pose any danger to the environment or to neighboring properties. Rather, both experts were of the opinion that the Project-coupled with the repaired revetment-would have a positive environmental impact on the Property and surrounding land. During the hearing, the Council expressed concern as to whether the repaired revetment would withstand storm surge and asked if the residence could be raised in elevation by another two or three feet above FEMA guidelines. Hr'g Tr. 50:1-4, Jan. 28, 2014. In response, Dr. Carchedi reassured the Council that the revetment would survive a large storm event and stated that the residence could be raised. Id. at 50:5, 51:9-14, 53:10-15.

Next, Mr. Mercurio testified. In response to questions from the Council, he stated that if the Council uncoupled the Revetment Repair Application from the Project Application, he would not repair the revetment. Last, the Council heard from Mr. Lebrecque, who testified that he was concerned about the Project's construction only eight feet from the shoreline. Id. at 82:13-17. Mr. Lebrecque produced pictures of the Property he had taken after Hurricane Sandy, showing damage to the Property including debris in the yard of the Property and a large hole in the existing revetment. Id. at 82:18-24, 83:1-2. In response to questions from the Mercurios' attorney, Mr. Lebrecque admitted that if it were constructed, the Project would affect his view of the shoreline. Id. at 91:8-10. At the end of the hearing, the Council approved the Project Application with the added condition that the residence be raised an additional two feet above FEMA requirements. Id. at 108:11-12.

On May 1, 2014, the Council issued a final written decision (the Final Decision) approving the Project Application. The Final Decision contained thirty findings of fact and three conclusions of law. In the Final Decision, the Council stated that the Staff's primary objection to the Project was the risk of erosion to the Property due to the proximity of the proposed residence to the shoreline. Final Decision, at ¶ 7. However, the Council explained that the Mercurios' experts disagreed with the Staff's findings. Id. at ¶ 15. The Council noted that Doctors Carchedi and Rosen had testified that the repaired revetment would not result in adverse environmental impacts to the shoreline. Id. at ¶¶ 16-24. Rather, Doctors Carchedi and Rosen had each testified that the Project-especially the revetment repair-would benefit the Property and surrounding area from erosion and storm surge. Id. The Council also noted that Dr. Carchedi had testified that the variances requested were the minimum relief necessary to construct the Project. Id. at ΒΆ 17. The Council stated that its members had considered and debated the credibility of the Staff's recommendations as well as the ...


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