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Lebrecque v. State Coastal Resources Management Council

Superior Court of Rhode Island, Providence

October 25, 2018

RODNEY J. LEBRECQUE
v.
STATE OF RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL, ANNE MAXWELL LIVINGSTON, in her capacity as CHAIR of the COASTAL RESOURCES MANAGEMENT COUNCIL; GROVER J. FUGATE, in his capacity as EXECUTIVE DIRECTOR of the COASTAL RESOURCES MANAGEMENT COUNCIL; PAUL MERCURIO, and CAROL MERCURIO

          For Plaintiff: S. Paul Ryan, Esq.

          For Defendant: Anthony DeSisto, Esq. Joseph DeAngelis, Esq.

          DECISION

          PROCACCINI, J.

         Before this Court is the appeal of Rodney J. Lebrecque (Mr. Lebrecque) from a final decision of the State of Rhode Island Coastal Resources Management Council (the Council) approving an application by Appellees Paul and Carol Mercurio (Mercurios) to construct a dwelling on their lot located on Glenwood Avenue in the Town of Narragansett, Rhode Island. The Court entered a Decision on this matter on February 16, 2016, in which this Court remanded the matter to the Council to make further findings of fact consistent with the Decision. This Court has retained jurisdiction and now reviews the Additional Findings of Fact presented by the Council. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.

         I

         Facts and Travel

         In 1997, the Mercurios purchased a substandard, undeveloped lot (the Property) in a residential neighborhood located on Glenwood Avenue in the Town of Narragansett, Rhode Island. The Property contains approximately 4760 square feet of land.[1] A damaged revetment, or retaining wall, forms the eastern boundary of the Property along the Rhode Island Sound. Glenwood Avenue borders the Property to the west. The Property is located within 200 feet of the Rhode Island shoreline and falls under the jurisdiction of the Rhode Island Coastal Resources Management Program (the CRMP). CRMP § 100.1. Pursuant to the CRMP, any residential development on the Property is subject to a twenty-five foot coastal buffer zone[2] (the Buffer Zone) as well as a fifty foot minimum construction setback (the Setback). CRMP §§ 140 and 150. Additionally, the Property is located within a "V19 Flood Zone," or high hazard flood area.

         In 2003, the Mercurios applied to the Council for a Preliminary Determination to ascertain whether they could construct a single-family twenty-foot-by-thirty-two-foot residence on the lot (the Project). Council staff (the Staff) recommended denying the Project, finding that Project would require "significant variances" from the CRMP Setback and Buffer Zone. The Mercurios nevertheless applied to the Town of Narragansett Zoning Board (the Board) requesting a special use permit and dimensional variances. The Board denied the Mercurios' application and the Mercurios appealed the Board's decision to the Superior Court. On appeal, the Court held that the Board had exceeded its statutory authority and erroneously analyzed the application under the CRMP's variance criteria. Mercurio v. The Zoning Bd. of Review of Narragansett, No. WC 2006-0056, 2007 WL 4471143, at *15 (R.I. Super. Nov. 20, 2007). The Court overturned the Board's decision and remanded the matter to the Board with instructions to grant the special use permit and dimensional variances. Id.

         Following the appeal, the Mercurios applied to the Council seeking final approval of the Project as well as variances from the Setback and Buffer Zone (the Project Application). The Council opened a public notice and comment period and set a hearing date for the Project Application. The Staff's engineering, biology and geology departments each reviewed the Mercurios' Project Application and submitted memoranda recommending that the Council deny the Project.

         The Staff Engineer concluded that the Property was too small to support the Project. He determined that in light of the Property's location in a V19 Flood Zone, the Project posed significant adverse environmental impacts to the surrounding area and would be very vulnerable during storm events. Likewise, the Staff Geologist recommended that the Council deny the Project Application and noted that even if the Mercurios repaired the revetment, the Property was likely to experience significant erosion and further loss of land "within the mere [eight foot] [S]etback." (Appellant's Ex. 8, at 4.)

         The Council held a hearing on the Project Application on February 12, 2013, in which Dr. David R. Carchedi (Dr. Carchedi), a civil engineer; Dr. Peter S. Rosen (Dr. Rosen), a coastal geologist; and Mr. Mercurio, all testified in support of the Project Application. During the hearing, Doctors Carchedi and Rosen refuted the opinions of the Staff and testified that the Project would not pose any danger to the environment or to neighboring properties. See Hr'g Tr. 50:1-4, Jan. 28, 2014. The Council also heard from Mr. Lebrecque, a property owner who owns a residence located directly across from the Property, who testified in opposition to the Project Application. At the end of the hearing, the Council approved the Project Application with the added condition that the residence be raised an additional two feet above FEMA requirements. Id. at 108:11-12.

         On May 1, 2014, the Council issued a final written decision (the Final Decision) approving the Project Application. The Final Decision contained thirty Findings of Fact and three Conclusions of Law. In the Final Decision, the Council stated that the Staff's primary objection to the Project was the risk of erosion to the Property due to the proximity of the proposed residence to the shoreline. Final Decision ¶ 7. However, the Council explained that the Mercurios' experts disagreed with the Staff's findings. Id. ¶ 15. The Council noted that Doctors Carchedi and Rosen had testified that the repaired revetment would not result in adverse environmental impacts to the shoreline. Id. ¶¶ 16-24. Rather, Doctors Carchedi and Rosen had each testified that the Project-especially the revetment repair-would benefit the Property and surrounding area from erosion and storm surge. Id. The Council also noted that Dr. Carchedi had testified that the variances requested were the minimum relief necessary to construct the Project. Id. ¶ 17. The Council stated that its members had considered and debated the credibility of the Staff's recommendations as well as the testimony of Dr. Carchedi and Dr. Rosen. Id. ¶ 25. Ultimately, the Council concluded that based on the totality of the scientific evidence presented, the Mercurios had met the burden of proof necessary for the Council to grant the variances and approve the Project Application. Id. ¶ 26.

         Following the issuance of the Final Decision, Mr. Lebrecque timely filed an appeal to this Court. On appeal, Mr. Lebrecque argues that the Council's Decision was made upon unlawful procedure and is clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. Specifically, Mr. Lebrecque contends that 1) the Council made insufficient findings of fact to support its Decision in violation of §§ 42-35-12 and 42-35-15(g); 2) the Decision was clearly erroneous because the Council disregarded the conflicting recommendations of the Staff; and 3) the Project Application did not meet the sixth element of the CRMP's variance criteria because the Mercurios' hardship was self-created.

         On February 16, 2016, this Court entered a Decision on this matter in that it found the Council's Findings of Fact were insufficient to support its Decision such that its Decision was in violation of statutory authority. As such, the Court found that substantial rights of the Appellant had been prejudiced and remanded the matter to the Council directing it to make further findings of fact that address the specific evidence that led it to approve the Project, and to relate how such evidence met each of the CRMP's six variance criteria. The Court also noted that, because the Council's Findings of Facts were insufficient for judicial review, it would not reach the merits of the Appellant's remaining arguments pertaining to whether the Council's Decision was clearly erroneous and whether the Mercurios' hardship was self-created.

         II

         Standard of Review

         This Court's review of the Council's decision is governed by chapter 35 of title 42, entitled the Administrative Procedures Act. See Vito v. Dep't of Envtl. Mgmt., 589 A.2d 809, 810 (R.I. 1991). Section 42-35-15(g) provides:

"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may 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 ...

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