County Superior Court
Plaintiff: Carolyn A. Mannis, Esq.
Defendant: Anthony DeSisto, Esq.
and Leigh Eddy (the Eddys or Appellants) appeal from a
decision of the State of Rhode Island Coastal Resources
Management Council (the Council or CRMC) issued on February
14, 2013. The Council found that the Eddys had altered the
"buffer zone"on their property in violation of
previous assents and consent agreements, and that
Appellants' dock was not in compliance with CRMC Assent
A2003-07-010. The Eddys were given thirty days to bring the
dock into compliance and restore the buffer zone. They now
contend that the information underlying the decision was
illegally obtained, insufficient to warrant the Council's
findings, and clearly erroneous. Jurisdiction is pursuant to
G.L. 1956 § 42-35-15.
Facts & Travel
dispute concerns improvements to property owned by Appellants
located at 47 Carousel Drive, East Providence, Rhode Island
(the Property). The Property is part of a forty-six unit
subdivision authorized in 1997 by CRMC Assent B97-6-25 (1997
Assent) issued to Kelly & Picerne, Inc., the developer.
(Tr. at 17:3-5.) As part of the 1997 Assent, there was a
deeded Conservation Easement Agreement (the Easement) granted
by Kelly & Picerne, Inc. in favor of CRMC and the City of
East Providence. Id. at 17:5-10. The Easement
coincides with the buffer zone,  which is an average of 100
feet in width but varies throughout the subdivision.
Id. at 23:10-12. As part of the Easement, CRMC was
granted the right to enter upon the buffer zone included in
the Property "in order to prevent the existence of any
condition which is in violation of th[e] easement. . .
." (R. at 21.)
Eddys purchased the Property on or about May 25, 2001. Since
that time, there have been two other violations at the
Property; both involving the buffer zone. (Tr. at 23:16-17.)
In 2003, the Eddys entered into a consent agreement with
CRMC. (R. at 26-27.) The Eddys consented and agreed
"that, except as specifically authorized under CRMC
assent A02-07-38, and A01-06-52, there shall be no further
alteration (mowing, pruning, thinning, etc.) of the required
100' buffer zone on site." Id.
August 16, 2011, CRMC received a complaint about clearing in
the Eddys' buffer zone. (Tr. at 23:22-24.) Pursuant to
this anonymous tip, CRMC conducted a compliance inspection.
Id. at 23:24-24:1. Laura Miguel (Ms. Miguel) and
Brian Harrington (Mr. Harrington), members of CRMC's
compliance staff, conducted the inspection after accessing
areas of the buffer zone on the Eddys' Property by way of
neighboring properties also covered by assents. Id.
at 24:3-5. Ms. Miguel and Mr. Harrington conducted their
inspection from the buffer and easement area at all times,
never entering onto other areas of the Property. Id.
at 24:5-8. Following this inspection, Ms. Miguel sent the
Eddys a cease and desist order regarding
alterations made to their buffer zone, which were done
"without benefit of a CRMC assent and in violation of a
signed Consent Agreement dated March 4, 2003." (R. at
28, Cease and Desist Order 11-0100, dated September 23,
2011.) The Eddys were fined $2500, and they were given ten
days to cease all activity in the buffer zone and contact
November of 2011, Ms. Miguel and Mr. Harrington performed a
follow-up inspection, which was routine practice after a
buffer zone violation. (Tr. at 24:14-17.) During this
inspection, they discovered that there was a dock on the
Property. The Eddys applied to build such a dock in 2003, but
only obtained an assent to build a timber walkway,
terminating in a four-by-four viewing platform. Id. at
24:19-20; 25:9-11. Ms. Miguel and Mr. Harrington observed a
forty-and-one-half foot fixed pier, a sixteen-and-one-half
foot ramp, and a twenty-foot float. Id. at 25:11-13.
These new observations resulted in a second cease and desist
orderbeing issued to the Eddys along with a
second $2500 fine. Id. at 25:13-14.
August 23, 2012, the Eddys sought to challenge the fine
before an appointed hearing officer, but the Eddys refused to
participate in the administrative fine appeal
hearing after learning that CRMC had entered onto
"their property . . . without [the Eddys'] consent
or knowledge. . . ." (R. at 44.) Thereafter, the hearing
officer referred the matter to the full Council for an order
to remove the dock and restore the buffer zone. Tr. at
25:17-19; R. at 11.
September 11, 2012, CRMC held a full hearing on this matter.
At the hearing, Ms. Miguel testified about how the violations
at the Property were discovered as well as about a series of
photos of the buffer zone and allegedly noncompliant
structure taken by her and Mr. Harrington at the Property.
Tr. at 26:19-28:8. The first photos were taken during the
original visit in August of 2011 after CRMC had received a
complaint about the Eddys' buffer zone. (R. at 12, Photo
1, dated August 16, 2011; R. at 13, Photo 2, dated August 16,
2011.) Photos three and four were taken in August of 2012,
prior to the Administrative Fine Appeal hearing. Id.
at 14, Photo 3, dated August 21, 2012; 15, Photo 4, dated
August 21, 2012. Ms. Miguel testified that even in the photos
from August 2012, she "would not consider that to be a
fully vegetated buffer." (Tr. at 43:1-3.) She also
explained how, following the two prior violations, she spent
"a considerable amount of time" educating the Eddys
"about what was allowed and what wasn't allowed on
this property." Id. at 33:13-16.
the dock, Ms. Miguel testified about several photos showing
the structure. First, as to photo number five, which was
taken on August 16, 2011, she and Mr. Harrington were unaware
that it was a violation at that time. Id. at
27:16-20; R. at 16, Photo 5, dated August 16, 2011. They knew
there was an assent, but they did not know that "the
assent was for a walkway that terminated significantly inland
of where the dock is." Tr. at 27:20-23. It was only upon
their return in November of 2011 that Ms. Miguel and Mr.
Harrington discovered that the dimensions of the dock on the
Property differed dramatically from the dimensions of the
walkway and viewing platform in the assent. Id. at
25:7-13. Ms. Miguel presented a picture of the dock which
shows CRMC staff biologist, Sean Feeley, standing "where
the viewing platform would have terminated" based on the
2007 Assent. (R. at 17, Photo 6, dated August 21, 2011; Tr.
at 28:4-6; R. at 31, Assent, dated July 26, 2005.) Ms. Miguel
further offered two Google Earth pictures showing that the
dock had been in existence since at least 2007. (R. at 18,
Photo 7, dated July 28, 2007; R. at 19, Photo 8, dated April
2, 2012; Tr. at 28:7-11.)
Miguel also offered testimony regarding the Conservation
Easement and Restrictions-an agreement between the developer
of the forty-six unit subdivision, CRMC, and the City of East
Providence-in order to establish its existence and to clarify
"that there was a conservation easement on the property
. . . ." (R. at 9; Tr. at 33:1-2.) She also testified
regarding the 2003 Consent Agreement between CRMC and the
Eddys, which was entered into following the two earlier
buffer zone violations. (R. at 26-27; Tr. at 33:3-10.)
Ms. Miguel informed CRMC that the compliance staff's
recommendations were as follows: "the dock should be
removed in its entirety, nobody else in this subdivision has
a dock, nobody else has been allowed to have a dock, as far
as I know. We also recommend that the buffer be restored in
accordance with the Council's guidelines . . . ."
(Tr. at 33:16-22.) The compliance staff further recommended
that "the Council make an order to that effect, that the
dock be removed and the site be restored by October
15th , . . . that the ability to assess a
penalty of $500 a day, up to an aggregate of $10, 000, be
implemented." Id. at 33:22-34:3.
Eddys' attorney, Ms. Mannis, then examined Ms. Miguel to
elicit that her initial investigation was in regard to an
alleged violation of a Consent Agreement dated March 4, 2003.
(Tr. at 37:7-9.) Ms. Mannis argues that the Consent Agreement
did not contain permissive language inviting CRMC to enter
onto the property for investigative purposes and should not
be viewed as a basis for entry. Moreover, she contends that
this entry violated the Eddys' "constitutionally
guaranteed rights." (R. at 43.) Ms. Mannis sent a letter
to Mr. Goldman, counsel for CRMC, asserting the Eddys'
Fourth Amendment right. Mr. Goldman responded to this letter
with the Council's current position and evidence of the
assents and easements governing CRMC entry onto the Property.
The correspondence between Ms. Mannis and Mr. Goldman is set
forth in the record at 36 and 43.
January 22, 2013, CRMC issued a lengthy, five-page decision
which includes detailed findings of fact and conclusions of
law (the Decision). (R. at 2.) The Council found, inter
alia, that the dock at the property constitutes "an
illegal structure" and found it "clear the
conditions of the buffer zone Assent have been violated. . .
." (R. at 5, ¶ 18.) However, instead of ordering
the removal of the dock, as is well within the authority of
CRMC, the Council accepted "the representations of the
Eddy's (sic) counsel that the dock will be removed and
the walkover structure brought into compliance, as well as
the buffer zone being restored." Id. The Eddys were
given thirty days to comply. They now bring this appeal
seeking to suppress evidence of the violations and
challenging the sufficiency of the Decision.
Standard of Review
Court "sits as an appellate court with a limited scope
of review" when reviewing the decisions of an
administrative agency such as CRMC. 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 (APA), codified at
chapter 35 of title 42 of the Rhode Island General Laws.
Section 42-35-15(g) provides the Court may:
"affirm the decision of the agency or remand the case
for further proceedings, or . . . reverse or modify the
decision if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences,
conclusions, or decisions are:
"(1) In violation of constitutional or statutory
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or ...