Providence County Superior Court (PC-2013-4940)
Plaintiff: Lauren E. Jones, Esq.
Defendant: Anthony DeSisto, Esq., Christopher J. Behan, Esq.,
Joseph DeAngelis, Esq., Peter F. Skwirz, Esq.
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).
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.
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.
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).
January 24, 2012, the CRMC conducted its first hearing on the
application. 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.
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.
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.
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 ...