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LLC v. Coastal Resources Management Council

Superior Court of Rhode Island, Providence

May 4, 2018

802 PARTNERS, LLC
v.
COASTAL RESOURCES MANAGEMENT COUNCIL and THE CITY OF NEWPORT

          Providence County Superior Court (PC-2013-4940)

          For Plaintiff: Lauren E. Jones, Esq.

          For Defendant: Anthony DeSisto, Esq., Christopher J. Behan, Esq., Joseph DeAngelis, Esq., Peter F. Skwirz, Esq.

          DECISION

          TAFT-CARTER, J.

         In this administrative appeal, 802 Partners, LLC (802 Partners) seeks judicial review of a final agency decision of the Rhode Island Coastal Resources Management Council (CRMC or the Council). The decision approved the City of Newport's (City) application for the extension of an existing public pier located in Newport Harbor. Jurisdiction is pursuant to G.L. 1956 § 42–35–15 of the Administrative Procedures Act (APA).

         I

         Facts and Travel

         The City owns and maintains a right-of-way on a parcel of land known as the Ann Street Pier. (Application at 2) There are no plat or lot numbers associated with the property because it simply consists of a roadway and right-of-way. Id. The existing public dock consists of 210 linear feet. Id. at 5.

         The Ann Street Pier abuts a City-owned property known as the "Armory." Id. at 6. The City, with the help of a $713,000 Boating Infrastructure Grant from the United States Department of Fish and Wildlife, plans to develop the property into a "transient boating facility on the beach-level at the Harbor Center (Newport Armory)." Id. This facility calls for "personal hygiene facilities (showers and toilets) as well as storage lockers and laundry facilities for boaters arriving in Newport Harbor." Id.

         On May 17, 2010, CRMC received an application from the City seeking an assent to perform work at the Ann Street Boating Facility. Id. at 1. Specifically, the City was seeking to "[i]nstall necessary piles and approximately 393 linear feet of concrete floating docks for public boating facility." Id. at 5. Two marinas adjacent to the Ann Street Pier, 802 Partners to the north of the pier and Newport Onshore Marina (NOS) to the south of the pier, and an adjacent hotel, Forty 1° North, LLC, objected to the application (collectively, Objectors).

         On January 24, 2012, the CRMC conducted its first hearing on the application.[1] Before any testimony was taken, counsel for CRMC brought three procedural issues to CRMC's attention, one of which concerned the littoral rights of the parties and whether the CRMC should consider the application without first deciding those rights. (Tr. I at 15-16) A counsel for the Objectors pointed out that there existed a dispute with respect to the littoral rights and the littoral boundaries of the parties, and he maintained that the proposed pier expansion would "substantially and unreasonably interfere[] with the littoral rights and existing uses of the objectors" which have been established for many years. Id. at 53-54. He posited that because CRMC did not have jurisdiction to resolve the dispute, it should wait for the issue to be resolved, either by agreement of the parties or by the Superior Court. Id. He further asserted that the proposed dock extension also would have "significant navigational impacts" on existing abutters. Id. at 56.

         However, after being informed that there was no current littoral rights dispute in Superior Court, Chairwoman Livingston of the CRMC decided "to forge ahead" with the hearing. Id. at 73-76. The Council then heard testimony from former City Manager, Edward F. LaVallee, id. at 83-109, and Chairman of the Newport Waterfront Commission, Hank Kniskern. Id. at 110-147.

         On February 7, 2012, the Objectors filed a declaratory relief action with respect to the littoral boundary issues in the Newport Superior Court. See 802 Partners, LLC, et al., v. City of Newport, et al., C.A. No. NC-2012-0056 (filed February 7, 2012). At the next CRMC meeting, the Objectors sought a stay of the proceedings pending the outcome of the Superior Court action. (Tr. II at 7-8) However, although recognizing that the littoral rights issue would have to be decided by the Superior Court, Chairman Livingston denied the stay and decided to proceed with the matter. Id.at 22-23. Thereafter, the Council voted to approve a motion to deny the stay. Id. at 26.

         At the hearings, a CRMC subcommittee heard further testimony from various witnesses, who were both for and against the application: Mr. Kniskern (Tr. III at 22-70); Newport Harbormaster Timothy Mills, id. at 71-123 and Tr. VIII at 807-10; Structural Civil Engineer Ronald Bourne (Tr. IV at 131-219); Narragansett Harbormaster John Edward Downey (Tr. V at 231-94); Supervising Civil Engineer for the CRMC, Kenneth W. Anderson (Tr. VI at 305-413); Managing Director of 802 Partners, Peter Borden (Tr. VII at 427-93); Marina Manager at Forty 1° North, Mark DelGuidice, id. at 494-567; Newport Onshore Marina Manager, William Vye, id. at 568-665; and ...


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