A citizen board lacking coastal knowledge and appointed by politicians has often ignored years of experience to overrule staff on shoreline development projects.
Editor’s note: This is the third story in a three-part series.
By TIM FAULKNER/ecoRI News staff
Since its founding, Rhode Island’s Coastal Resources Management Council has been criticized by both environmentalists and developers. The state agency has several charges, but much of the animosity stems from how the agency issues permits for coastal development.
Concerns about rampant growth crowding the shores of the Ocean State, and near approval of large, industrial projects such as an oil refinery in Tiverton led to the founding of the Coastal Resources Management Council (CRMC) in 1971. It was created as a kind of outsized zoning board to approve or deny proposals for docks, wharves, homes, hotels, and shoreline hardening along Rhode Island’s 420 miles of coastline. The agency processes on average some 1,100 applications annually. Its area of jurisdiction encompasses 200 feet inland to 3 miles offshore.
An oversight board of citizen appointees is common among cities and towns but less so for state agencies, which typically rely on in-house professionals to adjudicate permits. For CRMC, this model has been the source of ongoing discord.
Two years ago, Save The Bay noted that since CRMC’s creation more than four decades ago, the agency’s board “has issued decisions that run counter to staff recommendations, and allowed development of marginal lots at the expense of the natural environment and public access.”
Criticism started early on, as applications were lost or endured long delays. In 1986, the General Assembly sought to improve operations by funding a paid staff and an executive director. It’s first and only chief since then has been the highly respected Grover Fugate.
Over the years, oversight expanded to include planning, aquaculture, and public access to the shore. CRMC also has the authority to regulate and create policies and rules that enforce its management plans and programs. But permitting persists as CRMC’s most controversial function, as developers and environmentalists clash, often over political appointees.
“It was just an old boys network,” James O’Neill said. “It was the most corrupt thing I've seen in my life.”
O’Neill, a real-estate agent who served on the South Kingstown Town Council from 2000-2014, has clashed with the CRMC board since 1979. He recalled the Bonniecrest condominiums in Newport as a contentious project that the board approved despite staff opposition. A decade-long legal fight followed.
Back then, state legislators could both appoint CRMC board members and serve on the board themselves. Originally, the CRMC board had 17 seats filled by the governor, lieutenant governor, and the speaker of the House. Many appointments were chosen as political favors and the agency earned a reputation for favoring developers. Several project applications would prove that claim.
“It was a gold mine for the powerful,” O’Neill said of the General Assembly. “There was no stopping them. All their friends were developers.”
In 2011, a proposal to slow erosion on Matunuck Beach Road in South Kingstown had much support. CRMC staff, however, opposed construction of a metal sheet-pile wall between the road and the fast-eroding shoreline. Against the recommendation of professionals, the board approved the project.
This conflict between protection and development is evident in CRMC’s own mission statement, which offers divergent directives: “Its primary responsibility is for the preservation, protection, development and where possible the restoration of the coastal areas of the state.”
Calls for reform have come from several arenas. In 1989, then-Gov. Edward DiPrete argued that the agency was stifling development and briefly succeeded — with the support of an environmental study commission — in having the agency folded under the direction of the Rhode Island Department of Environmental Management (DEM).
The General Assembly eventually reversed DiPrete’s restructuring plan after Gov. Bruce Sundlun refused to comply with the change and bigger controversies overwhelmed the Statehouse in the early 1990s, such as the savings and loan scandal.
The government ethics group Common Cause Rhode Island describes CRMC as one of the poster children for the separation-of-powers movement, as well as one of the holdouts after the amendment was adopted in 2004.
“It goes way back to when the legislative leaders, what observers saw at the time was those appointees were doing political favors through the power of the CRMC,” said John Marion, executive director of Common Cause. “So they were granting permits that were in favor of the legislative leadership.”
The situation was bad for the political process, the economy, and the reputation of the state, according to Marion.
“We needed to get away from the cronyism that the CRMC represented,” he said. “Anytime decisions are not based on merit people feel the political system is rigged.”
Here are several recent examples of the CRMC board ignoring staff opinion and undermining the integrity of the state’s coastal regulatory program:
Investco: Narragansett, 2004. Board granted a variance for a 10-home subdivision; 97 percent of the lot is wetland and would be filled. Development entirely in a biological wetland was considered highly unusual and inconsistent with regulations. Property was acquired on speculation at the negligible cost of $5,000.
Mercurio: Narragansett, 2009. Board granted a variance for riprap and new house despite staff recommendation of denial and strong staff findings of fact regarding shoreline erosion, risks of flooding, storm damage, and public endangerment. Owners bought the lot on speculation. Neighbors appealed the decision, and Superior Court, in 2016, remanded based on insufficient findings of fact to support board’s conclusions.
DeLoreto: Quonochontaug Pond, 2012. Board granted a variance for a residential boating facility despite staff opinion against the application. Staff noted the unique habitat value of this site, including a large span of intertidal flats and nearby freshwater creeks. Staff biologist and Army Corps of Engineers expressed concern over impacts to an important breeding area for coastal and brackish water species.
Ganz: Narragansett, 2012. Board granted variance for riprap and home along a highly-erosive beach. Staff objected to shoreline hardening and upland fill in an area characterized by rapid erosion, wave energy, and the significant risk that the beach and associated lateral access could be reduced or eliminated.
Hang Ten and town of South Kingstown: Matunuck, 2016. Board granted a variance to build a seawall that staff believes will not protect the Ocean Mist and other properties and will potentially cause more damage than the current conditions.
It was a long wait for reform. Even though the state Supreme Court ruled, in 2008, that CRMC should comply with separation of powers, it wasn’t until this year, with legal pressure from Save The Bay, that the General Assembly passed legislation officially designating the governor as the sole appointer.
The rule change, however, allowed the Senate to keep qualifications on appointees, such as having them represent municipalities — a rule that seems open to abuse. Currently, two of the CRMC board members represent Little Compton. None represent communities with large maritime industries such as Newport, South Kingston, and North Kingstown.
Marion believes the qualifiers still give legislators a hand in the selection process, but overall he considers the bill significant progress and “overall a good thing.”
Environmentalists push back
In the face of some perplexing rulings by the CRMC board, environmental groups such as Save The Bay, the Conservation Law Foundation (CLF), and the Sierra Club have pushed to change the board. In 2007, CLF called for an ethics investigation into CRMC chair Michael Tikoian for alleged business ties with then-Speaker of the House Joseph DeAngelis.
CLF and Save The Bay have called for the CRMC board to be downgraded to an advisory role, while letting in-house experts decide applications, the same process followed by DEM. Save The Bay wants hearing officers, who are experienced attorneys, to decide contested applications. DEM has hearing officers, but CRMC has never had them, despite a requirement that the governor appoint them.
“The current structure is to have non-experts make decisions that should be made by experts,” said Kendra Beaver, staff attorney for Save The Bay.
Calls for reform persist, especially from low-income neighborhoods such as South Providence that endure pollution from an industrial waterfront. The issue was highlighted last year with the CRMC board’s stamp of approval for a liquefied natural gas facility in South Providence.
“It is also clear from recent behavior and decisions of the current CRMC membership that they cannot be relied on to make decisions that give full weight to environmental and human health, or to treat all coastal communities equally,” the advocacy group No LNG in PVD said at the time.
The group, backed by the Rhode Island Chapter of the Sierra Club and the Environmental Justice League of Rhode Island, wants more diversity on the unpaid CRMC board and members with expertise in public health and science.
The current 10-member CRMC board includes three attorneys, the CEO of a chain of physical therapy centers, a retired Navy technician, an owner of a shipping company, a dental hygienist, a city planner, a real-estate developer, and the DEM director.
Proponents of changing the qualifications of the board argue that the expertise of staff scientists and geologists is too often ignored by a group of people with a limited knowledge of coastal engineering, marine ecosystems, and climate change.
Attendance also hasn’t been perfect. At the 16 council meetings held during the past 12 months, only three have had perfect attendance. Lisette Gomes and Jerry Sehagian have both missed the most, with six each, and Joy Montanaro has missed five. Gomes and Montanaro were both absent for the final vote on the controversial LNG project.
Gov. Gina Raimondo certainly isn’t immune from tinkering with the council’s makeup. In 2017, Raimondo removed three pro-environment members from the CRMC board and replaced them with those with less grassroots advocacy experience. In the case of the chair, Jennifer Cervenka, accusations arose of her favoring National Grid, the developer of the LNG project.
The governor’s changes on the council occurred just as opposition to the Providence LNG project was intensifying.
One of those removed from the CRMC board was Tony Affigne. The college professor and environmental and social justice advocate was critical of how he was replaced but he doesn’t want to see the structure of the council change. He’d also like to see scientists and experts in pollution get seats on the council.
Everyone interviewed for this story praised CRMC staff for its professionalism and dedication, proven by long tenures and award-winning coastal management plans. But Affigne argued that keeping a citizens council offers more oversight by the public and less influence by the governor’s office.
“The right answer is not to take away the council but to appoint the right people to the council,” he said.
John Torgan, state director for The Nature Conservancy in Rhode Island, saw many of CRMC’s imperfections as Narragansett baykeeper for Save The Bay. And he supports Save The Bay’s calls for reform of the council, especially as it’s needed to address climate change.
Torgan is optimistic that the agency will build on its progress with its special area management plans (SAMPS). These guidelines set policy for new and evolving coastal issues such as offshore wind, fishing, erosion, and sea-level rise.
Thus, even as the CRMC board continues to be criticized, it’s bending toward nature as it works with scientists and other experts to deliver more evenhanded and fact-based policies, according to Torgan. The agency’s planning tools are also providing developers, municipalities, and conservation groups with defined roles in coastal activities. Torgan said the SAMPs create partnerships that focus on better protecting the environment.
Torgan said CRMC is a leader nationally “as a progressive and thoughtful coastal zone management agency and they deserve credit for that.”
But it wasn’t always that way.
“It used to not work well and was much more subjected to political interference,” Torgan said of the CRMC board. “While that still is always in play given the amount of value (on the coast), they have taken steps to address that. And there’s still work to do, but they’ve gotten better.”
Given its own description as “a state agency created by the General Assembly that balances economic considerations with environmental protection” CRMC will always be open to criticism. The state law that created the agency notes that, “the preservation and restoration of ecological systems shall be the primary guiding principal upon which environmental alteration of coastal resources shall be measured, judged and regulated.”
Perhaps one of the agency’s poorest decisions came during its early years, when in 1974 it approved the filling in of 45 acres of upper Narragansett Bay to build a port terminal for the Providence & Worcester Railroad. The port was never built and the land has been partially reclaimed by nature. But its future is still uncertain, as proposals to develop the filled-in site emerge regularly.
Curt Spalding, former director of the Environmental Protection Agency’s New England office and past executive director of Save The Bay, called CRMC’s decision to approve the infilling “disastrous.” But, he noted, that the council hasn’t had to take on proposals of that scope since.
But it may soon have to.
“I think there will be a lot more decisions like that when in comes to climate change,” Spalding said. “We’re now in a completely different world and some (coastal) infrastructure has got to be pulled away. But can we can we make that happen?”
The CRMC board
State law requires that: six of the 10 CRMC board members are an elected or appointed municipal official; three of the six represent communities with 25,000 or more residents; three represent communities with less than 25,000 residents; five of the six must be from coastal communities; and three remaining seats must represent coastal municipalities. Council members serve for three-year terms, for an indefinite number of terms.
Member qualifications are otherwise undefined. ecoRI News had a difficult time just getting basic information about each member’s qualifications and experience.
Jennifer Cervenka, chairwoman, is co-founder of a law firm that specializes in environmental law. She was appointed in 2017.
Raymond Coia, vice chair, has been on the council since 2003. He was reappointed in 2017. As a resident of Cranston, he represents a coastal municipality with more than 25,000 residents and fulfills the elected or appointed designee as an auxiliary judge with the Cranston Municipal Court and chairman of the Cranston Juvenile Hearing Board. Coia is an attorney and administrator at the New England Laborers' Health and Safety Fund.
Michelle Collie is the CEO of a chain of physical therapy centers. She was appointed in 2017.
Lisette Gomes is a general practice attorney and assistant city solicitor in Pawtucket. She was appointed in 2017.
Donald Gomez of Little Compton represents a coastal municipality with less than 25,000 residents but isn’t an elected or appointed town official. Gomez is a retired Navy undersea warfare technician and is regarded for his technical and scientific expertise. Gomez has been on the council since 2010.
Michael Hudner of Little Compton represents a municipality with less than 25,000 residents but isn’t an elected or appointed official. Hudner owns a shipping company. He has served on the council since 2011. He was reappointed in 2018.
Joy Montanaro is a dental hygienist from Cranston. It’s unclear if she is a public member representing a coastal community. She served on the Cranston Zoning Board for 15 years.
Patricia Reynolds of East Greenwich is a planner for the city of Warwick and serves as an elected or appointed official representing a coastal municipality (Warwick) with a population greater than 25,000. She was first appointed to the council in 2016. She was reappointed in 2018.
Jerry Sahagian is a Realtor, real estate developer and liquor store owner in the Narragansett area. He is a public member of the board representing a coastal community. He was appointed to the council in 2002 by Gov. Lincoln Almond.
The board’s 10th member is the DEM director, who is usually represented at meetings by a surrogate, such as Ron Gagnon, chief of the agency’s Office of Customer & Technical Assistance.