650 R.I. Code R. 650-RICR-10-00-1.5

Current through December 3, 2024

Section 650-RICR-10-00-1.5 - Notification and Review of Permit Applications

1.5.1Notification

A. Upon receipt of complete applications, including necessary plans and attachments thereto which meet all the prerequisites of the Council as set forth herein, the Council shall cause to place public notice of the pendency of said application and a brief description of the proposed activity, the Regulations from which variances are sought and the percent of the deviation from the standard and/or whether a special exception is required.

B. Public notice shall be sent on formal applications and/or starred (*) administrative applications to immediate abutters, appropriate municipal agencies in the area or areas so affected by the activity, appropriate quasi-municipal and State agencies which may be affected by the proposed activity, appropriate citizen interest groups, as well as State and local officials in the area or areas of the proposed activity.

C. It further shall be the policy of this Council that anyone interested in receiving notice of the pendency of any application or matter which requires that the Council advertise a noticed public review period and is pending before this Council which would be the subject matter of this notification procedure, individually request to the Council in writing his/her desire to receive such notification. Petitions for or against any application or matter pending before the Council shall not constitute a request for notification. This request may address itself to receipt or notification of a single application, a group of applications affecting an area or subject matter or a general request of notifications of all applications and/or matters subject to notification procedure, pending before the Council. The immediate abutters shall also be notified except when the application requires noticing more than fifty (50) abutters. In these cases, the Council's notification procedures will be conducted in accordance with the notification requirements of the Administrative Procedures Act.

D. If an applicant and/or interested party is to be represented by an attorney, that party's attorney must enter an appearance in writing, to be placed on the notification list and be considered an attorney of record. The Council will make available an appropriate entry of appearance form. Should an attorney wish to withdraw his/her appearance, written notification must be sent to the Council, by registered or certified mail, return receipt requested, specifying the applicant's name and pending file number. Withdrawal may only be granted by leave of the Chairman or Executive Director.

E. The date of this notification shall commence a thirty (30) day comment period whereby comments concerning the application shall be received by the Council.

F. In the event that during this thirty (30) day period formal written objection and/or request for hearing is received by the Coastal Resources Management Council from an interested party and said formal written objection and/or request for hearing is substantiated by genuine and material reason as outlined in § 20-00-1.1.6(G) of this Title therefore, the matter shall then become a contested case under the Rules and Regulations of the Council, whereupon a public hearing may be scheduled at a time immediately following the thirty (30) day objection period.

G. Upon the expiration of the thirty (30) day period, the Council shall consider the application including staff reports and recommendations thereon, reports and recommendations from other State and local agencies thereon, and comments thereon. When an application requires, as a condition of Assent, that a deed restriction is necessary, the proposed language for said restriction shall be, unless the Executive Director determines the application would be better processed without it, made part of the staff reports to the Council.

H. The Council shall further investigate and review the site of the proposed activity through one (1) or more of its own members.

I. Thereafter, at a meeting of the Council, the application shall be considered and acted upon.

J. For applications that are lacking information to begin review, staff shall prepare a letter specifying the information necessary to begin the review of said applications. If no information or reply is received within thirty (30) days, such applications shall be deemed deficient and shall not be accepted by the Council. The applicant shall be notified of this decision.

K. For applications that are active (accepted for review), staff may request additional information to aid in the review of said applications. If there is no communication or action on said request, staff shall prepare a letter, advising the applicant that such information shall be received within thirty (30) days or said applications shall be canceled. If no reply is received within thirty (30) days, the application shall be canceled by the Executive Director by letter (certified mail, return receipt requested). The file shall then be closed without prejudice to the applicant and the applicant notified as such.

L. Once a final staff report(s) is filed, an application cannot be revised except in the discretion of the Executive Director or the full council. The revision may be subject to the fee provisions of §§ 1.4.4 through 1.4.14 of this Part.

M. Assents for activities on properties cited for a violation of the Program shall not be issued until all enforcement issues related to that property are resolved. This Rule shall not apply when such applications are submitted to resolve an enforcement action, as directed by the Council's enforcement staff.

N. Whenever an application has been brought before the Council three (3) times, and the applicant or his legal counsel has failed to appear or offer an acceptable explanation for their absences, then the application shall be canceled without prejudice to the applicant.

O. Low and Moderate Income Housing. Low and moderate income housing project applications received by the Council that seek the preferred status afforded under R.I. Gen. Laws Chapter 45-53 shall include a letter from the affected community noting clearly that said community has an affordable housing plan and that said application is therefore seeking said preferred status.

1.5.2Contested Cases

A. In the event an application or matter pending before this Council becomes a contested case as defined herein, the Council shall then schedule a public hearing before a duly authorized and appointed Subcommittee on the matter. The Subcommittee shall render a recommendation within thirty (30) days of the final hearing unless the Chairman of the Council extends such period.

B. Notice of this public hearing shall be in conformity with R.I Gen. Laws Chapter 42-35 to ensure all parties be afforded an opportunity to be heard.

C. Public hearing shall not be convened until all information required by § 1.4.2 of this Part has been received by the Subcommittee.

1.5.3Hearings

A. Hearings required or permitted shall be conducted in accordance with appropriate Rules of Law and these Rules and Regulations. Hearings may be before a duly appointed Subcommittee before the Council as a whole, as designated by the Chairman in his/her sole discretion. A Subcommittee hearing shall be required when a substantive objection is received from any party or when requested by members (a vote of four (4) or more) of the Coastal Resources Management Council.

B. In the case of hearings before a duly-appointed Subcommittee, the full hearing shall be before such Subcommittee. A record shall be kept as provided herein. The Subcommittee shall then report its recommendations to the full Council. The record shall be available to the full Council and all parties of record. After the Subcommittee recommendation is formally submitted to the full Council, parties may present new evidence before the full Council at the full Council hearing.

C. Upon hearing all of the facts and reviewing the record in its entirety, the Council shall render its decision in accordance with R.I. Gen. Laws Chapter 42-35.

D. In any contested case, all parties shall be served with such notice as may be provided for by law, or, in the absence of such provision, as may be ordered by the Council.

E. In the event formal withdrawal of pending written objection to a contested matter is received and/or requested by the objector and/or interested party or representative, it shall be within the sole discretion of the Council to withdraw the matter as a contested case.

F. In the event that an applicant does not appear before a duly scheduled Subcommittee hearing in accordance with R.I. Gen. Laws §§ 46-23-6 and 42-35-9(d), a default shall be entered against the applicant, except the Chairman, if he determines there is good cause for the applicant not appearing, may waive this requirement.

G. In the event that no interested party in opposition to the application appears at the Subcommittee, and the applicant has not requested the opportunity to examine staff members or other State agency commentators, then the matter shall be declared an uncontested case and be assigned to the next undocketed regular Council meeting.

H. At any Council hearing on any application, the applicant or his legal representative must be present. In extraordinary circumstances, the Council may allow an immediate family member to speak on behalf of the applicant, but this shall be in the sole discretion of the Chairman.

1.5.4Pleadings

A. Forms. All Pleadings, (including complaints, answers, motions and petition) shall be on white paper, eight and one half inches by eleven inches (8 1/2" x 11") in size.

B. Filing. Whenever a pleading or other document or paper is required to be filed with the Council, it shall be filed in quadruplicate.

C. Pleading. Any person (including the Council) filing a Pleading complaint or other document shall adhere to the following form for such purpose:

1. At the top of the page shall appear the wording "Before the Rhode Island Coastal Resources Management Council." On the left side of the page below the foregoing shall be set out: "In the Matter of (name of applicant)." Opposite the foregoing shall appear the type of pleading offered or other properly labeled title.

2. The body of the pleading or other document shall be set out in numbered paragraphs which:

a. Identify the parties by name and address; and

b. Concisely state the facts which form the basis for the pleading or other pleading or documentation.

3. All Pleadings (except those filed by and in the name of the Council) shall be in writing and sworn to.

4. Upon the filing of an application and/or complaint the Council, if it has not already done so, shall assign a file number or docket number to the proceeding and shall enter said number on the original of the pleading.

1.5.5Consolidation; Separate Hearings

A. When matters involving a common question of law or fact are pending before the Council, it may order a joint hearing of any or all the matters at issue in the proceeding; it may order all the proceedings consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

B. The Council, in furtherance of convenience or to avoid prejudice, may order a separate hearing of any matters or allegation against any person or of any separate issue.

1.5.6Pre-hearing Conference Rule

A. In any proceeding of the Council upon its own motion, or upon the motion of one (1) of the parties or their qualified representatives, may in its discretion direct the parties of their qualified representatives to appear at a specified time and place for a conference to consider:

1. The simplification of the issues;

2. The necessity of amendments of the Pleadings;

3. Possibility of obtaining stipulations, admissions of facts and of documents;

4. The limitation of the number of expert witnesses; and

5. Such other matters as may aid in the disposition of the proceedings.

B. The Council shall make an order or statement which recites the action taken at the conference, the amendments allowed to the Pleadings or application and the agreements made by the parties or their qualified representatives as to any of the matters considered, including the settlement or simplification of issues, and which limits the issues for hearing to those not disposed of by admissions or agreements; and such order or statement shall control the subsequent course of the proceedings unless modified for good cause by subsequent order.

1.5.7Continuances

A. Any party who desires a continuance shall, immediately upon receipt of notice of a hearing, or as soon thereafter as facts requiring such continuance come to his knowledge, notify the Chairman of the CRMC or Executive Director of said desire, stating in detail the reasons why such continuance is necessary. Requests by a party to continue a hearing before the full Council may only be granted by the Chairman of the CRMC or the Executive Director and only for good cause shown. Such requests must be in writing and received by the Chairman of the CRMC or the Executive Director twenty-four (24) hours in advance of the hearing. The Council generally will not grant requests for continuances when not received in writing and/or within less than twenty-four (24) hours' notice. Continuance requests are subject to the fee provisions of § 1.4.4 of this Part.

B. Requests made in Advance for Subcommittee Hearings. Requests by a party to continue a Subcommittee hearing must be made in writing twenty-four (24) hours prior to the day of the scheduled Subcommittee hearing. Such requests may be granted only by the Chairman of the CRMC, the Executive Director, the Chairman of the Subcommittee, or the acting Chairman of the Subcommittee for good cause shown and may be subject to a seven hundred fifty dollar ($750.00) administrative fee to cover costs incurred by the Subcommittee.

C. Requests Made on the Day of Subcommittee Hearings. Requests by a party to continue a Subcommittee hearing made on the day of the hearing or at the hearing may be granted only by the Chairman of the CRMC, Executive Director, Chairman of the Subcommittee, or acting Chairman of the Subcommittee, for good cause shown and shall be assessed an administrative fee. However, such fee shall not be assessed at less than seven hundred fifty dollars ($750.00) to cover administrative costs incurred by the Subcommittee in conducting such hearing. The Chairman of the CRMC, Executive Director, Subcommittee Chairman, or acting Subcommittee Chairman shall not grant such continuance unless given adequate assurances by the moving party that the administrative fee shall be paid prior to the next scheduled hearing. Nothing herein shall prohibit the Council or Subcommittee, other than at the request by a moving party, as above described from continuing a hearing upon its own motion.

D. During a hearing, if it appears in the public interest or in the interest of justice that further testimony or argument should be received, the Council or Subcommittee may, in its discretion, continue the hearing and fix the date for introduction of additional evidence or presentation or argument. Such oral notice shall constitute final notice of such continued hearing.

E. After close of the Subcommittee hearing by the Subcommittee Chairman, the Subcommittee may not reopen hearings unless the matter is referred back to the Subcommittee from the full Council or the Chairman of the Council. Any new evidence may be presented to the full Council at the full Council hearing.

1.5.8Rules of Evidence

A. Subject to the provision of law and to the other provisions of these Rules, all relevant evidence is admissible which, in the opinion of the Council, is the best evidence reasonably obtainable, having due regard for its necessity, availability and trustworthiness. In passing upon the admissibility of evidence, the Council shall give consideration to, but (except to the extent required by law) shall not be bound to follow, the Rules of Evidence governing civil proceedings, in matters not involving trial by jury, in the Superior Court of the State of Rhode Island.

B. When objection is made to the admissibility of evidence, such evidence may be received subject to a later ruling. The Council may, in its discretion, either with or without objection, exclude inadmissible evidence or order cumulative evidence discontinued. Parties' objection to the introduction of evidence shall state the precise grounds of such objection at the time such evidence is offered.

C. When new evidence is proffered to the Council, the Council may accept or reject the proffered evidence, or remand the matter in whole or in part to a Subcommittee for further proceedings.

1.5.9Presentation of Expert and Lay Testimony

A. All parties to an application shall provide a list of all expert and lay witnesses it intends to present, as well as the subject matter and any new evidence, reports, or data on which the witness is expected to testify or the party intends to introduce to the Council or Subcommittee after completion of the CRMC staff reports and not less than seven (7) business days prior to the scheduled hearing. The introduction at the hearing of any new evidence, reports, or data may result in a delay and rescheduling of the hearing.

1.5.10Transcripts

A. Transcripts of testimony shall be available at the Council's office for examination by any party to the proceeding until expiration of the time during which any appeal or petition for judicial review authorized by law may be filed. Thereafter such a transcript shall not be available for examination by any person except with the approval of the Council after notice to all parties to such proceeding. If any party files proceedings for judicial review, the Council shall, upon request by any party, supply to such party a copy or copies of the transcript of the proceedings before it at such reasonable charge as the Council shall establish.

1.5.11Finding of Fact

A. Any party may, at the conclusion of a hearing or within such later time as may be fixed by the Council, submit to the Council proposed findings of fact, copies thereof to be served upon each party to the proceedings.

1.5.12Permit Extensions

A. Where the Council has issued a permit to undertake an activity in accordance with this Program, said permit shall require such activity licensed or permitted thereunder to be completed within (3) years from the date of issuance unless specifically granted a longer period of time by the Council. Extensions may be granted for good cause demonstrated by the applicant. Additionally, in determining whether to grant an extension, the Council will consider whether there has been a substantial change in the environmental conditions on the site, whether the CRMP has been amended such that the activity would now require variances or special exceptions, or additional variances or special exceptions, and whether the applicant has made a good faith effort to undertake construction of the permitted activity. In the event an applicant or his agents cannot complete said activity within the three (3) year permitted time, unless specifically granted a longer period of time by the Council, the permit shall expire unless the applicant files a timely written petition with the Council for a permit extension. The applicant may, 30 days prior to the expiration of said time, petition the Council in writing for an extension. Extensions may be granted for projects only if it has been determined by staff that the work accomplished is in compliance with the conditions of approval established by the Council.

B. The Executive Director in his discretion for cause shown may administratively grant an extension for a period of time of up to one (1) year from the expiration date of the permit. The Executive Director may grant a maximum of three (3) one (1) year extensions. However, for projects associated with public infrastructure, the Council may grant extensions for more than one (1) year.

C. Large scale projects are generally commercial or public projects which, due to their size, complexity and scope, have construction schedules which, at reasonable rates of build-out, exceed seven (7) years. The applicant may, 30 days prior to the expiration of a permit, petition the Council in writing for an extension beyond that period of time originally and specifically granted by the Council. The Council itself may grant an extension that exceeds the permitted assent completion date upon demonstration of a good faith effort to meet construction timelines. The granting of an extension by the Council shall be the minimum necessary to complete the project, but shall not exceed ten (10) years beyond that period of time originally and specifically granted by the Council. In granting this extension the Council may place additional conditions on the previous permit that may be necessary to bring remaining elements of the project in conformance with current regulatory standards.

D. A notification of permit extension shall be mailed to appropriate municipal and State agencies.

E. Where a proposed activity requires a Section 401 water quality certification (WQC) (or its waiver) from the RIDEM as a prerequisite of the Rhode Island Coastal Resources Management Program (RICRMP), the applicant shall obtain the WQC, its waiver, or its denial within one (1) year from the date of public notice otherwise the prerequisite will be waived. However, if the applicant has not obtained the section 401 water quality certification, its waiver, its cancellation, or its denial within one (1) year of the date of public notice, the prerequisite contained in the Rhode Island CRMP may be waived by the Executive Director in his discretion if he determines that there is no significant potential for the proposed activity to result in a discharge of pollutants into the State's coastal waters. Thirty (30) days prior to waiving the section 401 WQC of the RICRMP, the Council shall notify the RIDEM that it is considering such a waiver.

F. If, at any time, the RIDEM issues a denial for a section 401 WQC, then the applicant shall have thirty (30) days after such final determination of denial to obtain a section 401 WQC otherwise the application and/or the Council's approval shall be canceled.

1.5.13Modification of Actions

A. For good cause, a majority of the Coastal Resources Management Council members present at a bi-monthly meeting of the full Council, wherein action is to be taken, may vote to modify any said action taken hereunder provided reasons for such modifications are set forth on the record and in the minutes of the meetings, provided however, that the modification relates only to items on the bi-monthly agenda.

B. A notification of modification of action shall be mailed to appropriate municipal and State agencies.

1.5.14Withdrawal of Applications

A. The applicant, at any time up to the date that final staff reports are filed, may withdraw the application without prejudice. After staff reports have been filed, the application may be withdrawn only with the permission of the Council. Once the application has been withdrawn, the matter may only be considered again if the applicant submits a new application with the appropriate fee.

1.5.15Federal Consistency Determinations and Certifications

A. Council review and notification of Federal consistency certification applications for non-Federal direct activities, Federal permits, licenses, approvals, and Federal assistance, shall be in accordance with the Rhode Island Coastal Resources Management Program and these Management Procedures.

B. For purposes of notification and review, Council review of direct Federal activity consistency determinations shall be considered starred (*) administrative applications except for those activities which the Council has determined have de minimis impact.

C. Pursuant to the review and response allowances contained at 15 C.F.R. § 930.41, a fifteen (15) day notice period will commence upon receipt of the Federal consistency determination. In the event that during the fifteen (15) day comment period a formal written objection is received by the Council from an interested party, the objection must substantiate by evidence that the proposed Federal activity does not conform with the RICRMP. Such objection shall describe the reasons for the objection and provide alternative measures, if they exist, that would, in the objector's opinion, make the activity consistent with the RICRMP.

D. Upon reviewing the record, the Executive Director shall render a decision on the consistency of the proposed direct Federal activity based on the enforceable policies of the RICRMP and pursuant to § 307 of the Federal CZMA (16 U.S.C. § 1456), or refer such matter to the full Council for such decision.

E. The Council's action on the consistency of the proposed direct Federal activity shall follow the certification and appeal processes and procedures found in 15 C.F.R. Part 930 et seq.

F. The Council may rely upon the public notice provided by the Federal agency proposing the activity or reviewing the application for the Federal license or permit when such notice satisfies these requirements.

1.5.16Same Application Request

A. The Council will not act upon the same request unless there has been a substantial or material change in the circumstances regarding the application or the action of the Council.

650 R.I. Code R. 650-RICR-10-00-1.5

Amended effective 2/16/2020
Amended effective 3/4/2021
Amended effective 7/5/2021
Amended effective 6/24/2024
Amended effective 11/24/2024