South Kingstown environmental impact mitigation and use conflicts under consideration
Providence – The Rhode Island Coastal Resources Management Council (CRMC) is scheduled on Tuesday to hear testimony regarding the Town of South Kingstown’s plan to minimize environmental impacts and use conflicts with regard to its approved construction of a 202 ft. sheet pile seawall.
The testimony to be provided by the Town under a Superior Court Remand Order is expected to be “limited to evidence regarding whether the applicant has taken all reasonable steps to minimize environmental impacts and/or use conflicts” according to CRMC.
“The only issue before CRMC is the Town’s application and the remand,” said Laura Dwyer, Public Educator and Information Coordinator for CRMC in an interview on Thursday.
The subject of the hearing is born of litigation filed against the CRMC by Hang Ten, LLC whose property, the Ocean Mist, abuts the subject property where the seawall is planned. Construction of the seawall as argued by Hang Ten, LLC is detrimental to the seaside business, its neighbors and residents of the village.
The Town has for years maintained that the approved seawall’s construction is a public safety concern, necessary “to protect the road and water main against future undermining from ongoing coastal erosion.”
The road is the only ingress and egress for emergency services access to the village’s more than 500 residences and businesses.
Coastal Erosion Plan continues post construction
The Town’s impact mitigation plan is expected to include a sacrificial reservoir of sand that would be naturally eroded during storm events.
In a letter dated June 16, 2014, Richard St. Jean, Principal Engineer at St. Jean Engineering, LLC, the Town’s engineering design team, submitted a one-page letter to Stephen A. Alfred, Town Manager, detailing the impact mitigation plan.
The correspondence states in part:
“The project, as originally designed, incorporated an environmental mitigative measure of a “reservoir” of sand seaward of the seawall to allow for sacrificial sand being eroded during a storm event. The thought behind this design element is that during a severe storm, the sand will provide a barrier which will be sacrificially eroded throughout the duration of the storm.”
The plan establishes the sand reservoir during the construction phase in addition to periodic replenishment to be carried out by the Town.
“It was determined that a reservoir of sand be placed seaward of the sheet pile wall in order to mimic the existing mitigative measures provided by the existing sand behind the existing (but non-maintained) cobble wall,” according to the report.
The engineering report went on to say, “The designed replenishment reservoir would allow for the establishment of a shore profile consistent with the surrounding vicinity and be supportive of the remaining headland. This was all part of the original plans, as approved by CRMC.”
And concludes, “Upon further review, we understand the Town proposes that in addition to placement of the sand reservoir during the construction phase of the project, the Town will also replenish any lost sand on an annual basis. The area subject to sand replenishment would be seaward of the proposed seaward armor stone and landward of the existing cobble wall. Upon completion of the seawall project, St. Jean Engineering will prepare a post construction survey in order to document topography for as-built record drawings. Five – (5) profile transects will be documented along the project limits, which will serve as a datum for the Town’s annual sand replenishment.”
“We are expecting the Town to present their information at the meeting on the 24th, said Jeff Willis, Deputy Director, CRMC on Thursday. “Not only would we expect that they present something on their efforts to minimize environmental impact, but there’s also that use conflict component of that. “
Public Access-Public Safety Considered
The Town of South Kingstown, in addressing the Court’s clarification on public use conflicts expressed its intention to allow public access contingent upon public safety.
In a letter dated June 16, 2014, Stephen Alfred submitted correspondence to CRMC detailing the town’s intended testimony and addressing the specifics of the Superior Court Remand Order.
“In accordance with the Superior Court Remand Order [the] hearing is limited to evidence regarding whether the applicant has taken all reasonable steps to minimize the environmental impacts and/or use conflicts,” said the letter.
With regard to the use conflicts, Alfred wrote:
“Also, with respect to the Town’s efforts and plans to minimize public use conflicts (reference: CRMP Section 130. A.2), please be advised that the Town intends to allow public access to this area upon conclusion of the construction of the sheet pile right of way protection system. Said allowance would be made so long as the area is determined to be safe for passive use and access by members of the general public.”
Remand clarification limited in scope
The Superior Court order on remand specifically detailed the scope of the remand and clarification issue before CRMC on Tuesday evening.
In an order dated April 28, 2014, the court declared:
2. “The Court reverses the CRMC’s finding that the Town took all reasonable steps to minimize the environmental and use conflicts arising from the construction of the proposed wall because the court finds that the CRMC’s determination on this issue was arbitrary and capricious.
3. For the reasons set forth supra, this issue is remanded to the CRMC for the limited purpose of affording it an opportunity to clarify and complete its decision in accordance with the Court’s opinion. “
Compelling public purpose upheld
The Court found favorably on the issue of CRMC’s determination of “no reasonable alternative means” in the Town’s construction of the seawall as a public safety measure to protect the sole access road and main water structure to the Matunuck Village.
“…this Court concludes that the CRMC’s finding on the issue of no reasonable alternative means was supported by reliable, probative and substantial evidence on the record. Because this finding was neither arbitrary nor capricious and neither affected by error of law nor characterized by an abuse of discretion, Hang Ten’s substantial rights have not been prejudiced on this ground. Accordingly, the Court affirms the CRMC’s finding that the Town sufficiently demonstrated no reasonable alternative means, other than the proposed wall, to serve the compelling public purpose of maintaining the infrastructure of the road.”
Emotions running high in Matunuck
Kevin Finnegan, owner of the Ocean Mist, has taken his argument to the airwaves. Finnegan maintains that he has presented a plan to the Town and CRMC to reestablish and maintain an existing historic seawall on the adjacent property where the Town’s sheet pile wall is planned.
Finnegan, who had right of first refusal in purchasing the property, chose not to exercise his rights due to the late owner’s addition of an access, construction and maintenance easement for the seawall. That easement was signed the same day as the Town’s purchase and sales agreement.
“In talking with the staff that have been part of these informal pre-app meetings with the town, Kevin has been part of some of those, but there has never been anything that he has presented as solely his,” said Dwyer.
Finnegan said he has no application pending before CRMC regarding seawall construction, because the Town negotiated an easement with the former owner and purchased the property.
Earlier in the month, Finnegan posted an online petition, Save the Ocean Mist, in an effort to make more people aware of the proposed seawall’s adverse impact on his business, home and community.
“Our position is that it will destroy the beach, it will destroy the Ocean Mist and will not protect the road, the water main or the people of Matunuck,” wrote Finnegan.
“Not only will their proposed wall not protect anything, the act of drilling the sheet piles for it will most likely damage the Ocean Mist irreparably.”
Finnegan’s petition had more than 4,500 signatures as of Tuesday morning. Through the petition, radio spots, media interviews and social media streams Finnegan, with support from his more than 70 employees, family, friends and colleagues encouraged supporters to appear before CRMC on Tuesday evening to voice their opposition to the proposed seawall construction.
Although the Court remand is limited to testimony on the Town’s environmental impact mitigation and use conflicts, Finnegan was dug in.
“I think Steve Alfred said the next construction time was October 15,” said Finnegan in an interview last week. “October 15, technically if the construction starts, his engineer said in open discussion said the Ocean Mist, might not make it through – will not make it through the construction phase.”
Finnegan went on to say that he believes that it is highly likely the Ocean Mist will be closed soon after that October date.
Representatives of both sides to testify
The CRMC hearing is scheduled for 6:00 pm Tuesday evening, with representatives of the Town and Hang Ten, LLC presenting engineering testimony.
Finnegan and Fran O’Brien, owner of Tara’s Tipperary Tavern, the historic pub that sits next door to the Ocean Mist are listed as witnesses for Hang Ten, LLC.
“That is what is expected to occur,” said Willis. “Our council has been very good about allowing varying opinions to be argued, in opposition, either for or against. The intent is to address the remand question. That’s the whole intent of the hearing. Whether or not our council allows other things, that is at the chair’s and the council’s discretion.”