Zoning in Shoreline and Undeveloped Areas Must Meet Resident's Needs First

In a state as small as Rhode Island, and with as much prized shoreline, boating and fishing areas, it is easy to see why many developers would love to get their hands on any piece of land at all and turn it into the next great getaway or resort for tourists.

And although RI does rely on tourist business to some degree, selling our shoreline properties and quiet hamlet areas to the highest bidder certainly seems like unfair zoning habits.

The first and most important aspect in determining zoning laws and rezoning areas is in keeping the needs of the community at the forefront of any kind of progress.

As an example, a situation in Glocester RI that has been ongoing is the sale of a building located in an area that already has several small business owners trying to expand and provide more jobs, economic stability and ecologically sound products and practices to the small community. Attempts to purchase the building for the purpose of expansion however, have been fought by the town solicitors and zoning committee who would like the building to be purchased by a large land developer who has the workings for a hotel or other tourist attraction in mind.

The property is not zoned as residential, and residents have been fighting to keep it that way or the developers will have their way and rezone it for residential to build whatever they want, regardless of the needs or desires of the people of Glocester.

The residents of Glocester live there because it is a protected, small, controlled community where they can be sure of their surroundings and their needs being met. Allowing big business to overtake their community would undermine the growth, stability and sense of community that is inherent in an area like this.

Zoning laws and ordinances, when used wisely and with the community's interests and well-being in mind, are a great way to establish order to thriving towns and their citizens. However, when that right is abused, zoning rules can become the very thing that ruins an entire community.


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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.

Deepwater Wind Farm Ocean Zoning Issue Grows

RI Ocean Zoning issues continue with proposed Deepwater wind farm off the coast of Rhode Island that would connect Massachusetts and New York as well through undersea networks. The wind farm is the largest proposed of its kind in the country.

The full article follows below.


Size doubled of proposed wind farm in R.I. Sound
December 8, 2010
By Alex Kuffner
Journal Staff Writer

PROVIDENCE — Deepwater Wind has applied to federal authorities to build the largest proposed offshore-wind farm in the United States, a 200-turbine project in Rhode Island Sound.

The 1,000-megawatt project, called the Deepwater Wind Energy Center, replaces a 350-megawatt, 100-turbine proposal that was put forward by the Providence-based company two years ago. Under the new plan, Deepwater would also build an undersea transmission network that would stretch from Massachusetts to New York and connect to multiple states to which the company could sell its power. The wind farm would cost an estimated $4.5 billion to $5 billion, and the transmission system an additional $500 million to $1 billion.

Deepwater submitted an application on Oct. 27 to the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) to lease a 270-square-mile area between Rhode Island and Massachusetts that is the subject of a development agreement between the two states. The wind turbines would rise about 525 feet above the water but would be at least 18 miles from mainland Rhode Island, far enough out to sea that they would be barely visible from land, according to Deepwater.

BOEMRE, an arm of the U.S. Department of the Interior, has authority over the project because it would be located in federal waters. Deepwater planned to announce the new proposal on Wednesday in advance of a federal workshop on Friday with Massachusetts and Rhode Island officials in which the project is expected to be discussed.

Deepwater executives said the company decided to expand the size of its proposal for a number of reasons, including Interior Secretary Ken Salazar’s Nov. 23 announcement that the federal government would expedite permitting for qualifying projects on the East Coast. The first leases to developers could be issued in late 2011 or early 2012.

“The White House and the Department of the Interior are throwing a lot of resources at the permitting process,” Deepwater chief administrative officer Jeffrey Grybowski said. “We want to take advantage of that federal momentum.”
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But technological developments were the driving factor in the change in plans. Next-generation turbines that can produce more power are now being built in Europe. Using those machines improves the economies of scale for developers.

“There is this growing realization that the technology is changing fast,” said Deepwater chief executive William M. Moore.

By using more powerful turbines than those envisioned in 2008, Deepwater would be able to triple its wind farm’s capacity while only doubling the number of turbines. Over the last two years, manufacturers have brought 5-megawatt turbines on to the market in place of machines ranging from 3 megawatts to 3.6 megawatts that have typically been installed in Europe and China and are proposed as part of the 130-turbine Cape Wind project in Massachusetts.

On a trip last month to Europe, Moore and other representatives of the company met with manufacturers that have built 5-megawatt turbines and are developing 6-megawatt ones. They include Areva Renewables, of France, and REpower Systems, of Germany, which both have 5-megawatt turbines in operation at the Alpha Ventus project off Germany.

Deepwater is also considering using larger turbines in a demonstration project the company is developing in state waters off Block Island, said Moore. Instead of the originally proposed eight turbines, the company is now looking at installing only five turbines as part of the wind farm planned about three miles southeast of the island.

That project is scheduled to go on line in 2012. It is still awaiting approvals from Rhode Island authorities. Although state regulators signed off on an agreement Deepwater reached with utility National Grid for the sale of power from the wind farm, the contract has been appealed to the state Supreme Court. Objectors have questioned the contract’s high price of power, which is more than double what National Grid pays for energy from conventional sources.

The Deepwater Wind Energy Center would be more cost-effective than the Block Island wind farm, said Moore. That is expected to translate into prices that would be a third lower than the rate of 24.4 cents per kilowatt-hour that National Grid agreed to pay for power from the Block Island project, he said.

The multi-state transmission network would create several potential buyers for Deepwater’s power. Rhode Island is a limited market. It has about half a million customers and is dominated by one utility — National Grid. Massachusetts, Connecticut and New York have more utilities and many more customers. Spreading the power around to multiple markets also ensures that no single state must absorb the higher cost of offshore wind power alone, Moore said.

Although federal agencies would have primary authority over the transmission line, state agencies would have oversight of any interconnections to land. And state regulators would review any proposed power-purchase contracts.

The cost of the 200-turbine wind farm, at up to $5 billion, dwarfs the $1.3-billion price tag of the original 100-turbine project. Although credit markets have yet to fully recover from the recession, Deepwater executives are confident of tying up financing from lenders. They pointed to the recent decision by a group of European commercial banks to lend $1.7 billion for the expansion of a wind farm off Belgium.

Moore also said that “it will only be a matter of time” before more capital partners are brought on board. Deepwater’s primary backer is D.E. Shaw & Co., a global investment and technology-development firm with $20 billion in investment capital as of Oct. 1.

The larger project is not expected to increase the number of jobs — estimated at up to 800 — that would have come with the 100-turbine project. But instead of a two-year construction cycle, the window would stretch to four years or more, guaranteeing construction and assembly jobs for a longer period. Moreover, a larger project would improve the chances that manufacturers of turbines and components would open factories near Deepwater’s staging area in Quonset Point, North Kingstown, said Moore.

The wind farm would be located within Massachusetts and Rhode Island’s “area of mutual interest,” federal waters directly south of Sakonnet Point between Block Island to the west and Martha’s Vineyard to the northeast.

Although the federal government, through BOEMRE, has formally requested proposals in other states, including Delaware and Maryland, it has not issued a so-called request for interest in Rhode Island or Massachusetts. But the agency is accepting unsolicited bids from developers.

One other company, Neptune Wind, of Massachusetts, has submitted a proposal to build a wind farm in the area of mutual interest. According to its website, Neptune is proposing a 120-turbine project with a 360-megawatt capacity.

Deepwater’s turbines would be installed in four phases, with construction starting in 2014. The first 50-turbine phase would go on line in 2015. Subsequent phases would follow in consecutive years.

The proposed project area is irregularly shaped to avoid fishing grounds, shipping lanes and glacial rock formations. Grybowski said the site selection comports with Rhode Island’s recently approved ocean-zoning document, known as the Special Area Management Plan (SAMP). Under the agreement between Rhode Island and Massachusetts, development in the area of mutual interest would be guided by the SAMP.

“They’ve collected a lot of data and we think this is consistent with that data,” he said.Other key offshore-wind proposals in the U.S.

•Cape Wind Associates has won federal approval for a 468-megawatt project off Massachusetts.

•NRG Bluewater Wind has proposed a 350-megawatt project off New Jersey and a project of up to 600 megawatts off Delaware.

•Fishermen’s Energy has proposed two projects totaling 350 megawatts off New Jersey.

•Garden State Offshore Energy, a joint venture between Deepwater Wind and PSEG Global, has proposed a 350-megawatt project off New Jersey. Key points about Deepwater Wind

•Founded in New Jersey; moved its headquarters to Providence in 2010.

•Selected by the State of Rhode Island as its preferred developer of offshore-wind power in 2008.

•Proposes building a five- to eight-turbine demonstration wind farm in state waters near Block Island by 2012.

•Proposes building a 200-turbine wind farm in federal waters in Rhode Island Sound starting in 2014.



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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.

RI Wind Farm Raises Questions Regarding Real Estate and Zoning

RI Offshore Ocean Zoning is the subject of considerable conversation of late with the proposal of the Deepwater wind farm. The wind farm was originally slated to be a 100 turbine farm in the RI sound. The new proposal doubles the size of the wind farm. In a state the size of Rhode Island, with the main component of our appeal our oceans and coastline, should something this size even be entertained?

The full article follows below.

Coastal director: Wind farm appears to comply with R.I. plan
Dec 08, 2010

Grover Fugate, the executive director of the state Coastal Resources Management Council, said that preliminary information Deepwater Wind gave him about its new 200-turbine proposal appeared to show that it is consistent with the recently approved ocean zoning plan, known as the Special Area Management Plan (SAMP), that his agency coordinated.

It is important that Deepwater's proposal complies, because Rhode Island and Massachusetts agreed to use the SAMP as the guide to development in the waters where the project would be located.

The section of Rhode Island Sound that Deepwater is interested in for its turbines is the subject of a memorandum of understanding between Rhode Island and Massachusetts.

The 400-square-mile "area of mutual interest" (AMI) is divided into "blocks" for planning purposes. Deepwater's wind farm would occupy portions of 30 blocks that total 270 square miles.

Fugate said Deepwater notified the CRMC of the blocks it is considering. They were chosen to avoid geophysical obstructions, navigation channels and fishing grounds -- all data collected as part of the SAMP.

"We were aware of some areas they've been looking at," Fugate said. "We knew that they were looking at the western boundary of the AMI and the southern boundary."

Asked if the proposal is consistent with the SAMP, he said, "From what I've seen so far, yes."


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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.

Waterfront Property Rights in RI

Waterfront property rights are of particular interest to those in RI living on the coastline. So when the Supreme Court states that property owners who purchased and own waterfront property, and pay taxes on that property will lose not the right to use the property, but that the actual property will be altered if the state takes action against erosion, there is naturally some cause for concern.

The full article follows below.




Moving the Ocean Away from Waterfront Property Owners
July 24, 2010
by John M. Boehnert

Last month the U.S. Supreme Court spoke in an important waterfront property rights case, and whenever that happens, Rhode Island, being the Ocean State, had better listen. See Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection et al.

At issue in that case was whether a taking of waterfront property rights had occurred, and whether such a taking could occur by court order as opposed to legislative fiat. The Court did agree that no taking had occurred, but the Court couldn’t agree on much else, with a plurality opinion dueling with two concurring opinions on the judicial takings issue.

I will focus on the waterfront property rights issue, and suggest that you read the excellent positing on Dean Patty Salkin’s Law of the Land blog (June 23, 2010) for a thoughtful discussion of this interesting, and as yet inconclusive, judicial takings issue.

(For those not familiar with littoral and riparian rights jargon, reviewing my immediately prior posting on “Riparian Rights in Little Rhody and Beyond” may be helpful, as I define some of the terminology used by the Supreme Court in its opinion.)

What was at Issue in Florida?

In Florida, as in Rhode Island, the State owns all land below mean high tide, meaning the submerged ocean bottom as well as the land exposed at low tide. This leaves to the waterfront property owner all land above mean high tide.

(In Rhode Island, mean high tide is “the arithmetic average of high-water heights observed over an 18.6-year Metonic cycle” and “is the line that is formed by the intersection of the tidal plane of mean high tide with the shore”. State v. Ibbison, 448 A. 2d 728, 730 (R.I. 1982). A Metonic cycle is the period which begins and ends when a new moon occurs on the same day of the year as it did at the beginning of the last cycle. Id.)

At issue in the Florida case was a statute which allowed municipalities to petition the state to renourish beaches eroded by wave, and presumably wind, action. If the state agreed to renourish the beach, it would establish an “erosion line” which for the purpose of the case at issue was determined to be the mean high tide line. The state would them place fill seaward of this line, thereby creating new land.

Under Florida’s view, the newly created land was owned by the State.

Concerns of Waterfront Property Owners

It does not take an overactive imagination to guess the reaction of the “former” Florida waterfront property owners. It probably went something like this.

“I bought waterfront property, I enjoyed waterfront property, I paid taxes on waterfront property, and now I no longer have waterfront property because of the State’s actions. Instead, I have property abutting dry land owned by the State. I think my property rights have been taken, and no one has paid me for them. Isn’t that unconstitutional?”

Good question.

No Taking

The answer, according to the U.S. Supreme court is “No”. In essence, the Court said, your facts are right but your conclusion is wrong.

Property owners argued they were denied two property rights attendant to waterfront ownership status—to receive accretions to their property (i.e. additions of land occurring over time) and to have their property contact the water.

Not so fast, said the Supreme Court. The Court found that waterfront property owners did not trump the rights of the State to create land by placing fill below (i.e. seaward) of mean high tide, and the Court pointed to the doctrine of avulsion under Florida law, where the sudden creation of additional land at the shore (as opposed to the long term creation of such additional land by accretion) did not change the waterfront property owner’s property line.

In other words, land which may be created by a storm dumping sand and rocks below mean high tide is land owned by the state; the property owner’s boundary does not change.

In its review of Florida law, the Supreme Court found no exception to this rule when the state itself created the avulsion by adding fill below mean high tide. That is, a sudden change in the mean high tide by artificial means (i.e. placing fill below the high tide line) has the same result as a sudden change in the line resulting from natural means (i.e. a storm), and the waterfront property owner is the loser, so to speak, in each instance.

Applicability to Rhode Island

Because the State also owns all property below mean high tide in Rhode Island, one may be tempted to argue that the same result of "no taking" would apply in Rhode Island.

While I have not considered this issue in any depth, I would raise some cautions to this conclusion.

First, Rhode Island has well-settled historic case law, recently confirmed, that a waterfront property owner who extends his property seaward by placing fill below mean high tide owns title to that property in fee simple, provided such filling was done with express or implied state approval or with state acquiescence. Allen v. Allen, 32 A. 166 (R.I. 1895); Greater Providence Chamber of Commerce v. State, 657 A.2d 1038 (R.I. 1995). These cases of course refer to historic filling prior to the creation of Rhode Island’s Coastal Resources Management Council.

This case law could be used to argue that unlike in Florida, in Rhode Island an artificial avulsion does in fact extend the private property line seaward.

The counter to this may be that this occurs only in the historic cases, prior to the current coastal resources management statutes and regulations, when it is the landowner filling for the purpose of extending his shoreline, as historically this was done for purposes of creating wharves and docks, facilitating commerce, and for establishing other businesses and residences.

The property owner may make a counter-argument that whether or not the property line moves depends on (i) who is filling below mean high tide and (ii) why is the fill being placed below mean high tide. And perhaps where this argument leads is that to the extent it is the State doing the filling, there must be compelling reasons to find that a waterfront property owner no longer has waterfront property as a result of the filling, giving the Rhode Island Supreme Court’s historic sensitivity to balancing the rights of waterfront property owners with the rights of the public and the State.

Such an approach would be entirely consistent with Rhode Island’s historic Public Trust Doctrine case law, although the impact of Rhode Island’s Coastal Resources Management Program remains to be seen.

However, if no one draws a line in the sand, we may never have to address the issue!



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Newport RI Real estate Lawyers handling real estate closings for commercial and residential conveyance and refinancing, Purchase and Sale negotiation and drafting, title issues, tax matters, and all complex zoning and real estate law issues. As Personal Injury Lawyers we also handle all matters of personal injuries. Contact our office at (401) 847-7500 or visit the website at Miller, Scott and Holbrook for more information.