RODNEY J. LEBRECQUE
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
Plaintiff: S. Paul Ryan, Esq.
Defendant: Anthony DeSisto, Esq. Joseph DeAngelis, Esq.
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 §
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. 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 (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.
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.
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.
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.)
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.
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.
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.
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.
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
"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