Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

Whether or not one agrees with Interior Secretary Salazar’s decision this week to remove the last federal regulatory barrier to the permitting of the Cape Wind Project, there should be far less disagreement on the Secretary’s view of the permitting process, which has taken nearly a decade.

“The time has come to bring the reviews and analysis of the Cape Wind Project to a conclusion…..The parties, the public, and the permit applicants deserve resolution and certainty,” the Secretary said in a March 1, 2020 statement. (See Secretary's Statement.)

A More Rational Permitting Process Needed

At his news conference announcing his approval of the offshore wind farm to be located in approximately 25 square miles of Nantucket Sound,  the Interior Secretary was far blunter in commenting on the protracted permitting process.

According to news reports, the Secretary said there was no reason “why an offshore wind permit should take a decade to review and approve”, and he promised a “more rational and orderly” process for subsequent offshore projects.

Secretary Salazar hit the bulls eye on that one.

A Nimbler European Regulatory Bureaucracy!?!

When the Europeans, not known for nimble and responsive governmental bureaucracies, are permitting offshore wind farms literally in months, it is clear that our permitting process is dysfunctional.

A recent report by the European Wind Energy Association finds that the average permitting time in Europe for offshore wind projects is 18 months. That is less than one sixth of the time for the permitting of the Cape Wind Project. (See press release on the EWEA website.)

The study also finds that while the permitting for European onshore wind farms takes about twice as long as the permitting of European offshore wind projects, the average of 42 months for the onshore projects is still about one-third of the time to permit the Cape Wind Project.

A Process That Discourages Investment

The permitting marathon is not over for the developer’s of the Cape Wind Project, who have already spent $45 million trying to get governmental approvals.   Lawsuits are pending, and more are threatened.

The environmental permitting process should not be the bureaucratic equivalent of the neutron bomb, leaving the infrastructure intact but wiping out the developers.

One wonders how many potential developers of alternative energy projects simply never enter the permitting process because of the extraordinary costs and time delays to get approvals, given that such capital can be deployed in less controversial projects for more secure returns.

I don’t know the answer to that—perhaps it is blowing in the wind!

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Given that Rhode Island is the Ocean State, and recreational fishing is extremely popular, I have been following the concern of recreational anglers that a Presidential Task Force may be laying the groundwork for restricting the rights of recreational fishermen.

The Interagency Ocean Policy Task Force, led by the chair of the Council of Environmental Quality and composed of senior policy officials from a number of federal departments and agencies, including Interior, Commerce and Homeland Security, issued an interim report last year on planning for regulation of ocean uses.

 That report raised concerns by listing “recreational fishing” as an activity which will  be “better managed” by federal planners. Interim Framework for Effective Coastal and Marine Spatial Planning.

In a state that only this year saw passage of the first law requiring a fishing license for saltwater, enacted over a Governor’s veto and to howls of protests from recreational anglers, it may be expected that Rhode Island anglers are cool to the idea of being “better managed”.

Because the Task Force is attempting to design an ecosystem management process referred to as marine spatial planning, some organizations representing recreational anglers fear the results could be a type of ocean zoning restricting recreational fishing.

The White House Council on Environment Quality recently issued a press release no doubt designed to quell this concern. In the words of the press release:

“These draft reports….do not contain a zoning plan, and they do not establish any restrictions on recreational fishing or on public access, nor make any judgments about whether one ocean activity or use is better than another…….The Task Force strongly believes in the ability of recreational fishermen and women to continue to enjoy these activities that are critical to the economic, social and cultural fabric of our country.”

Concern is such that it will take review of a final detailed Report to put fears to rest.

For several good postings discussing various facets of this issue, please review the Ocean Zone News Bog, www.thecre.com/zoning-news/, including postings on March 12 and 19^th and February 13^th and 28th.

And if you are truly skeptical after reading these postings, you may want to throw those lines in the water before the “Ocean Gendarmes”  confiscate your rods and reels, or throw you in the lock-up for fishing in the wrong place, or with the wrong equipment, or at the wrong time, or…………….!

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Prospective purchasers and owners of investment rental property, including condominium developers renting units they can’t sell, may not often think of minimum housing standards, but perhaps they should.

Rhode Island’s Housing Maintenance and Occupancy Code, R.I. Gen. Laws 45-24.3-1 et seq., may contain not more than a few surprises, from the mundane to the more serious.

Is It A Crime Not To Do Window Treatments?

For example, owners may be surprised that it is their responsibility for “the providing and hanging of shades or other devices on every window of every room used for sleeping and for every room equipped with a flush water closet or bathtub, affording privacy to persons within these rooms”. 

So if you are thinking about leaving the windows “au naturel” so the tenant can install their own designer window treatments, you probably want to reconsider that.

The good news? “Once window treatments are installed in any one rental  by the owner, replacements become the responsibility of the occupant”!

When Quaint May Be Illegal

The maintenance and occupancy code is detailed and very specific, and it has provisions that could get owners and investors in trouble, particularly when dealing with historic structures, where room configurations may be “quaint”, ceilings may be “charmingly low” and doorways may be “petite”.

Consider these requirements:

• every habitable room must have at least one window or skylight facing directly outdoors, unless connected to a room used seasonally, such as a porch, but in that case “adequate daylight must be possible through this interconnection”;
• minimum window area must be at least 10% of the floor area of the room;
• a bathroom or water closet compartment must not be used as the only passageway to any habitable room or hallway;
• at least 75% of the floor area of every habitable room must have a ceiling height of no less than seven feet;

Violations of the code range from low level fines to criminal sanctions. And once a notice of violation has been filed against a property, it is “unlawful….to sell, transfer, mortgage, lease, or dispose of the building to another” unless the conditions have been remedied or unless the mortgagee, lessee, or transferee have been notified of the violations, whereupon they are bound by the violations.

Perhaps a Look-See May Be In Order

Building officials, who are generally both pragmatic and busy, are unlikely to be focusing on well-maintained rental properties in search of minimum code violations.

That being said, tenants do complain and accidents do happen.  

Accordingly:     

• Prospective buyers may want to have an experienced building code consultant make an inspection before the purchase.
• Owners may want an inspection to identify and fix problems before they become an issue.

After all, when no window treatments can be a crime…………

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If you think owning or buying a gasoline service station is easy, think again.

Consider this conundrum. You are projecting capital expenses and you know that your single-walled tanks must be removed, as early as 2015, depending on the type and date of installation. (See current regulations.) But the regulator may be throwing you a life line, as it is considering postponing that date until 2020. 

Good deal, right? Well, not so fast.

What Does Stage II Have To Do With It?

The reason the regulator is thinking about postponing that date is because new tank installation requires all pumps to have Stage II Vapor Recovery, which is required by the EPA and is not inexpensive. 

But the EPA is reconsidering requiring Stage II because it is incompatible with newer cars, many of which have internal vapor recovery systems. Because of this incompatibility, use of Stage II on newer cars actually releases MORE gasoline vapors to the atmosphere—exactly what it was designed to prevent.

So there’s the first problem. If you replace the tanks early, you will be required to install Stage II, and if you wait, perhaps the EPA will have removed the requirement, saving you that money.

Well, it could get worse. Perhaps you replace the tanks early, install Stage II, the EPA eliminates the requirement for Stage II and goes even further, and requires all Stage II systems to be removed. So you paid for it, now you have to pay to remove it!

So, easy decision—simply wait to remove the tanks until absolutely required to do so, and see what the regulatory requirements are at the time—right?

Again, not so fast.

Is a Tight Tank Really Tight?

You will be required to periodically test your single walled-tanks. If they don’t pass, you may have a leak requiring tank removal, and you of course have to deal with the leakage and remediation. You just cross your fingers and hope there is enough money in the Underground Storage Tank Reimbursement Fund to fix your problem and that you qualify for reimbursement.

But if the tanks pass, you are all set, right? Well, not exactly. 

You see, your tanks could pass the tightness test and not really be tight—they could still be leaking, albeit at a low rate. But what if the replacement deadline is extended until 2020, you wait and unknown to you, your tanks are leaking for ten years. That could be a lot of contamination to be remediated, perhaps even more that would be covered by the UST Reimbursement Fund.

So what do you do?

If there was a good answer, I would give it to you. There isn’t.

However, there may be a good argument for being proactive, removing the single-walled tanks early, nipping in the bud any leakage issues but absorbing the cost of Stage II installation, and perhaps the additional cost of  being required to remove it in the future.

That is, of course, the non-gambler’s approach!

Many thanks.

Kudos to Rick Mandile of Sage Environmental for his insight on this issue and his thoughtful comments.

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This is the last in a four-part series on the Rhode Island Supreme Court’s decision in the Champlin’s Marina decision, where the court affirmed in part and reversed in part an extensive trial court opinion finding that the Coastal Resources Management Council had adversely impacted the rights of an applicant seeking a permit to expand its Block Island marina. See Champlin's Realty Associates  v. Michael Tikoian et al. (PDF).

Impermissible Ex Parte Contacts

The trail court, after extensive hearings, found impermissible ex parte contacts by several Council members, some of which ex parte contacts were found by the trail judge to have demonstrated bias on the part of three Council members. (One finding of which was overturned by the Supreme Court as to one Council member). 

While these extensive findings may be seen by some as not exactly covering the CRMC in glory, this deserves to be put in perspective. And just such perspective is found in the opinion of Justice Robinson, concurring in part and dissenting in part in the majority opinion.

Motivation and Intent

The thrust of Justice Robinson’s dissent was that he did not believe the CRMC Chairman should have been disqualified for bias and thus not permitted to consider this matter when it comes again before the CRMC pursuant to the Supreme Court’s remand. 

In his dissent, Justice Robinson noted his understanding that the majority does not suggest the Chairman had ignoble motivation or was unethical but rather that at some point during the administrative proceeding the Chairman’s “thought processes became fixed to such an extent that he could no longer render an unbiased decision”. 

Justice Robinson stated his view that the Chairman’s motivation “was simply to attempt to bring about a compromise solution with respect to a highly controversial application”, and that he “is a sincere and well-meaning public official”. Justice Robinson stated that based on his review of the record,  the Chairman was “a conscientious public official” and he believed the Chairman could have properly considered the matter on remand.

Is Clairvoyance Required of Public Officials?

Justice Robinson made a further contribution to putting the Champlin’s Marina case in perspective when he noted that the case on which the trial court and the Supreme Court principally relied, Arnold v. Lebel, which articulated impermissible ex parte contacts, was decided after the events complained of in the Champlins Marina CRMC proceeding had occurred.

        As Justice Robinson said:  

“I take no issue with the more exigent considerations relative to ex parte contacts which are the result of the clarifications that were spelled out in the quite recent Arnold  case.  However, I think it is fundamentally unfair to apply those more exigent considerations to the pre-Arnold actions...We as a society expect a great deal of our public officials--including integrity and an acute sensitivity to ethical standards.  However, I consider it unwarranted that such officials be clairvoyant as to not yet clearly promulgated expectations and norms."   

One Perspective    

It is important to keep in perspective that there are in fact real people behind these decisions, and that events don't occur in a vacuum--they occur in a context.

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In a recent talk to a regional conference of planners held in Connecticut, that is how I described a trial court's findings that a coastal permitting agency failed to follow appropriate administrative procedures.

The trial court relied on these findings to effectively reverse the decision of the Coastal Resources Management Council denying a permit for Champlin's Marina to expand its Block Island marina. See Champlin's Realty Associates v. Michael Tikoian et al. (PDF).

The Rhode Island Supreme Court has now spoken, affirming in part and reversing in part that trial court decision, in what is one of Rhode Island's most significant decisions on administrative law in recent years. (Read a copy of the high court's decision.)

It will take several posts on this blog to deal with all the issues addressed by a divided Court in this complex decision, but one thing is clear. Administrative officials, including administrative hearing officers and tribunals, such as zoning boards, will ignore this far-reaching decision at their peril.

Ex Parte Contacts

The ex parte contacts came to light in a court evidentiary hearing sought by the applicant to determine the existence of procedural irregularities. These ex parte contacts included:

• the CRMC Chairman's discussion of the pending case with the Governor’s office and with subcommittee members hearing the case;
• efforts of the CRMC chairman, along with the chairman of the hearing subcommittee, to support a much reduced expansion plan that was not presented to the hearing subcommittee and was not subject to cross-examination and challenge by the applicant and other parties
• ex parte contacts by certain subcommittee members hearing the case which the trial judge found demonstrated bias

On the subject of ex parte contacts, the Court was unequivocal. Quoting from its recent decision in Arnold v Lebel, 941 A.2d 813(R.I. 2007), which was issued after the evidentiary hearing held by the Champlin's Marina trial court, the Supreme Court reiterated that "no litigious facts should reach the decision maker off the record in an administrative hearing".

Moreover, the Court said that if the decision maker "intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal", it must notify the parties and give them the opportunity to challenge any such evidence and cross-examine anyone consulted. And this limitation applies to consultation with agency staff members as well, although general discussions with staff members on procedural matters, scheduling, etc. are not impermissible.

Lessons for Administrative Hearing Officers

What does this mean for administrative hearing officers, agencies holding administrative hearings, zoning boards and planning boards? Very simple--if you rely on any evidence that has not been put on the record in a quasi-judicial proceeding in such a manner that the parties can challenge it during the proceeding, the proceeding is defective and the decision is subject to reversal or remand.

When in doubt, put it on the record, notice the parties, and allow them to challenge.

What's Next?

In subsequent posts, we will examine the subjects of quasi-judicial immunity for agency officials, and remedies for defective proceedings. Finally, we will also try to put the case in perspective. Rhode Island administrative officials will be living with these issues for some time.

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