Plaintiff: Paul M. Sanford, Esq.
Defendant: Joseph DeAngelis, Esq.; Peter F. Skwirz, Esq.;
Anthony DeSisto, Esq.
administrative appeal, Perrywinkle Realty, LLC and
Perrywinkle Marine, LLC (collectively, Perrywinkle), seek
judicial review of a final agency decision of the Rhode
Island Coastal Resources Management Council (CRMC or the
Council). The decision of the CRMC approved Karen Sue,
Inc.'s (Karen Sue) application for the extension of its
existing commercial fishing dock and aquaculture facility
located in South Kingstown, Rhode Island. Jurisdiction is
pursuant to G.L. 1956 § 42-35-15.
December 2007, Karen Sue filed a Category B application with
CRMC seeking approval of a plan to expand its existing
private commercial pier and proposed Marina Perimeter Limit
(MPL) for property located in Snug Harbor on the west side of
Point Judith Pond. (Dec. 17, 2007 Letter, CRMC Hr'g
Package 9-10; Map of Application Site, CRMC Hr'g Package
21). Karen Sue's existing dock extends forth from 54
Perrywinkle Road, South Kingstown, Rhode Island. (CRMC
Decision, Findings of Fact ¶ 1). Specifically, the
application proposes to expand the existing pier with two
forty-foot floating dock extensions and one eighty-foot long
fixed pier extension to facilitate the continued docking of
two eighty-foot long commercial fishing vessels and the
expansion of permitted aquaculture. Id. at
¶¶ 4, 5.
owns property across Perrywinkle Road and operates a marina.
(CRMC Decision, Findings of Fact ¶ 7). Perrywinkle
timely objected to the application, and hearings were held
before the full Council on July 28, 2009 and September 8,
2009. (CRMC Decision 1).
the July 28, 2009 hearing, Perrywinkle's counsel raised
the issue of the littoral boundaries within Snug Harbor.
Specifically, counsel argued that Karen Sue's proposed
development would interfere with Perrywinkle's littoral
rights, and that the determination of littoral boundaries
between the parties was a question for the Superior Court.
(Hr'g Tr. 62:9-63:17, July 28, 2009.) In opposition,
counsel for Karen Sue argued that the plan was consistent
with how the surrounding area had developed. (Hr'g Tr.
70:22-72:13, July 28, 2009.)
Tikoian of the CRMC acknowledged that Karen Sue and
Perrywinkle had a threshold dispute over the littoral
boundaries, and noted the CRMC's lack of jurisdiction
over this issue: "[i]f we sit here for an
hour-and-a-half or two hours and argue back and forth on the
uses, you still have an issue of the lines. [The CRMC]
can't make the decision on the lines." (Hr'g Tr.
72:15-18, July 28, 2009.) Ultimately, the parties agreed to
continue the July 28, 2009 hearing to September 8, 2009 to
give Perrywinkle time to file a declaratory judgment action
with respect to the littoral boundary issues and to discuss a
possible resolution with Karen Sue. (Hr'g Tr. 77:13-21,
86:7-15, July 28, 2009).
September 8, 2009 hearing, Perrywinkle notified the Council
that it had in fact filed a declaratory judgment action in
Superior Court. (Hr'g Tr. 26:5-17, Sept. 8, 2009).
Nevertheless, the Council proceeded to a hearing on Karen
Sue's application and took testimony from Donald Roebuck,
Karen Sue's president; David Roebuck, president of Salt
Pond Oyster Company; and Gregory Roebuck, P.E., who prepared
the plans for the application and was accepted as an expert
civil engineer by the Council. Id. at 50:15-60:19,
61:8-64:11, 65:3-68:16. All three witnesses testified in
support of Karen Sue's application.
Council approved Karen Sue's application and issued a
written decision on August 16, 2010. (Hr'g Tr. 79:6-13,
Sept. 8, 2009.) On September 3, 2010, Perrywinkle refiled its
complaint from its September 4, 2009 declaratory judgment
action (C.A. No. 2010-0646). On the same day, Perrywinkle
also filed the administrative appeal now before this Court.