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Perrywinkle Realty, LLC v. Tikoian

Superior Court of Rhode Island, Washington

February 14, 2018

PERRYWINKLE REALTY, LLC and PERRYWINKLE MARINE, LLC
v.
MICHAEL TIKOIAN, in his capacity as Chairperson of the Coastal Resources Management Council, and KAREN SUE, INC.

          For Plaintiff: Paul M. Sanford, Esq.

          For Defendant: Joseph DeAngelis, Esq.; Peter F. Skwirz, Esq.; Anthony DeSisto, Esq.

          DECISION

          TAFT-CARTER, J.

         In this 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.

         I

         Facts and Travel

         In 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.

         Perrywinkle 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).

         During 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.)

         Chairman 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).

         At the September 8, 2009 hearing, Perrywinkle notified the Council that it had in fact filed a declaratory judgment action in Superior Court.[1] (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.

         The 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.

         II

         Standard ...


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