07/25/09 - Objectors to the Champlin’s Marina expansion filed three separate briefs in the state Supreme Court Monday, each arguing that the state’s highest court should reverse a February Superior Court ruling allowing the marina to expand by slightly more than 3 acres into Block Island’s Great Salt Pond.

The Conservation Law Foundation, the town of New Shoreham — in league with The Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy — and the Coastal Resources Management Council (CRMC) all argue that Judge Netti Vogel’s decision to allow the expansion was flawed.

Vogel’s ruling was itself a reversal of the CRMC’s February 2006 denial of the expansion via a 5-5 vote.

The basis for the Superior Court decision was that three members of the 10-member CRMC, Chairman Michael Tikoian, Vice Chairman Paul Lemont and former council member Jerry Zarrella, should have been disqualified from voting on the marina application because of alleged improper communication and bias. By discounting their votes, Vogel rendered the final vote 4-3 in favor of the expansion. The judge also argued that she could not send the matter back to the CRMC because a state Supreme Court ruling had called into question the constitutionality of the regulatory body.

However, the objectors argue that a remand was precisely what was called for.

Attorney Jerry Elmer of the Conservation Law Foundation writes that “if the Superior Court finds that the CRMC’s decision to deny a permit to Champlin’s was tainted with impropriety, the Superior Court must remand the case to the CRMC with appropriate instructions to correct the impropriety and then re-vote on the Champlin’s permit application.”

Furthermore, Elmer writes in an e-mail, “CLF also argues that the Superior Court’s holding that CRMC does not exist in the wake of a Rhode Island Supreme Court ruling on Separation of Powers is just wrong, both legally and in the real world. As we point out, CRMC very much does exist, and has been meeting, voting, and granting or rejecting permit applications.”

Vogel also found that allowing the expansion was consistent with the administrative record of the case. It was the same expansion recommended by a four-member CRMC subcommittee that spent more than two years and 23 hearings considering the application. Both Lemont and Zarrella sat on the subcommittee. (Lemont voted against the recommendation.)

In his brief, attorney R. Daniel Prentiss, representing the town and island environmental groups, takes issue with the subcommittee’s performance:

“The subcommittee proved unequal to the task. Three of its four members openly sided with Champlin’s; it was partisan and arbitrary in the receipt of evidence. It ultimately formed a recommendation that had no basis in the record, which was rejected by the full CRMC on a five-to-five tie vote. The CRMC’s disposition of the Champlin’s application was unusual. Its aftermath was extraordinary.”

Prentiss goes on to point out that three of the four subcommittee members — Zarrella, Jerry Sahagian and Thomas Ricci — volunteered to assist the marina in its appeal against “the agency of which they were appointed members,” and that Vogel allowed the three to express “personal expressions of venom against the CRMC Chair, Michael Tikoian.”

He writes that Vogel’s ruling allowing the expansion “had nothing to do with the merits of the real issue in the administrative appeal: whether CRMC’s denial of the Champlin’s application was properly grounded in the administrative record. Instead, the Superior Court engaged in an extended but legally erroneous exercise of disqualification of selected CRMC members and re-counting of votes... The result is not just legally flawed, but produces an outcome of unacceptable environmental impact that is unsustainable under the applicable regulations.”

CRMC attorney Marc DeSisto argues in his brief that Vogel did not have sufficient ground to dismiss the votes of Tikoian and Lemont. “The Superior Court then magnified its error by taking the extraordinary step of re-tallying the Council’s vote rather than remanding the matter for further consideration. In light of the magnitude of the proposed project and the multiple interests involved beyond Champlin’s interest itself, there is no legal or factual basis for [Vogel’s] decision.”

What’s more, DeSisto argues, an alternative marina layout plan offered by CRMC engineer Danni Goulet did not taint the proceedings, as argued by Vogel; rather, it was in keeping with what had been proffered by Goulet and other CRMC staff members in previous testimony. The brief quotes CRMC staff member Ken Anderson calling the marina’s 4-acre proposal “grossly excessive,” which, according to DeSisto’s argument, shows that the 2006 denial itself was in line with what CRMC staff had recommended.

Long road

The expansion matter has been a lightning rod of controversy since first proposed in the fall of 2003 as a 4-acre project that would double the size of the marina. After the council denial, another two years was expended on an appeal by the marina.

The marina charged that Gov. Donald Carcieri had worked against it in concert with Tikoian. A federal lawsuit to that effect was thrown out of court. However both sides agreed that improper ex parte communication — communication outside the official record — had occurred. The dispute of late has been how to remedy what both sides admit was a flawed process.

While Champlin’s argues the communication marred the proceedings irretrievably, the objectors say it had no real effect on what they considered to be a just outcome: denial of the expansion.

In his conclusion, Prentiss says CRMC’s structure is responsible for the “sordid history of this proceeding.” The agency has the enormous task of protecting the many miles of the state’s coastline — “a task of enormous complexity, requiring the application of technical disciplines. Yet the CRMC’s enabling legislation imposes no professional or experiential requirements on the membership of the council. CRMC decisions on projects ranging from the mundane to the extraordinary are decided by a majority vote of lay persons without training or experience in the sciences applicable to the decision.”

Prentiss goes on to say that, “the result is a situation rife with the potential for decision-making based not on scientific analysis, but on purely subjective notions of personal philosophy, politics, favoritism, and friendships. That potential clearly was realized in the Champlin’s proceedings, at least at the subcommittee level and following the final CRMC decision. Yet the final agency decision in this case coincided with the correct outcome based on the evidence and the regulations.”

Prentiss argues that it was not unfair to deny Champlin’s the use of additional public trust resources, especially since he says it has yet to make an effort to increase the efficiency of its current layout.

In the end, Prentiss says that the matter should be sent back to the CRMC, the ex parte communications entered into the record, and another vote taken.

Champlin’s is expected to file its brief on August 31. Oral arguments are scheduled for September 29.