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Eddy v. Coastal Resources Management Council

Superior Court of Rhode Island

October 3, 2016

MICHAEL AND LEIGH EDDY
v.
COASTAL RESOURCES MANAGEMENT COUNCIL (CRMC) by and through its members Anne Maxwell Livingston, Chair, Paul E. Lemont, Vice Chair, David Abedon, Tony Affigne, Raymond C. Coia, Janet Coit, DEM Director, Guillaume de Ramel, Donald Gomez, Michael Hudner and Jerry Sahagian and JEFFREY M. WILLIS in his official capacity as the Deputy Director of CRMC.

         Providence County Superior Court

          For Plaintiff: Carolyn A. Mannis, Esq.

          For Defendant: Anthony DeSisto, Esq.

          DECISION

          MCGUIRL, J.

         Michael 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"[1]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.

         I Facts & Travel

         This 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, [2] 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.)

         The 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.

         On August 16, 2011, CRMC received a complaint about clearing in the Eddys' buffer zone. (Tr. at 23:22-24.) Pursuant to this anonymous tip[3], 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[4] 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 CRMC. Id.

         In 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.[5] 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 order[6]being issued to the Eddys along with a second $2500 fine. Id. at 25:13-14.

         On 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[7] 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.

         On 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.

         As to 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.)

         Ms. 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.)

         Finally, 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 [2012], . . . 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.

         The 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.

         On 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."[8] 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.

         II Standard of Review

         This 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 provisions;
"(2) In excess of the statutory authority of the agency;
"(3) Made upon unlawful procedure;
"(4) Affected by other error or ...

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