Legal battle imminent after CRMC approves contested Point Judith Pond oyster farm

The embattled state coastal regulatory agency appears bound for yet another protracted legal battle over an oyster farm.

Mark Fay, an attorney representing a group of Narragansett property owners, indicated as much speaking to the R.I. Coastal Resources Management Council at its meeting on Tuesday.

“If this is granted tonight, the only other place I have to go is to Superior Court,” Fay said.

Fay’s protests centered on lack of public notice to residents and business entities that own property on Narragansett’s Little Comfort Island, despite their proximity to a proposed half-acre oyster farm in Point Judith Pond.

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“These are the closest people to where the oyster farm was going to be located,” Fay said. “They have had no opportunity to do anything in the proceedings over the last two-and-a-half years.”

But the CRMC approved the project anyway under a unanimous, 6-0 vote. Council members Catherine Robinson Hall and Patricia Reynolds were absent from the meeting.

If Fay makes good on his promise, the agency may be headed into what could be another yearslong legal battle over its decision. It’s not so different from the case of a contested oyster farm in Barrington, which was returned to the coastal agency last month following an appeal of the original, 2018 decision to Providence/Bristol County Superior Court.

Oyster farm applicant Andrew Van Hemelrijck urged the CRMC to make its decision Tuesday. But some council members wondered whether it was better to postpone a decision to give Fay and his clients more time to review, and ideally come to an agreement, on the project. The council was originally slated to vote on the application in September but postponed a decision after Fay’s 11th-hour challenge to the public notice requirements.

Van Hemelrijck, a South Kingstown resident, described views of the pond from his childhood bedroom window, and a calling to oyster farming.

He first tested the waters for oyster farming with back-to-back, temporary leases for a much smaller aquaculture farm from 2017 to 2020, before applying in 2020 for a permanent lease to grow oysters and quahogs in bottom cages across a half-acre of the pond.

“I didn’t really go looking for it, it kind of found me,” he said of the project and the chance to turn a childhood pastime into a business.

His project initially faced backlash from a separate group of residents along Narragansett’s Mollusk Drive who feared the farm would interfere with recreational boating and fishing activities. However, the two sides reached a compromise last month with the help of a federal mediation program, agreeing on a few extra conditions to satisfy the homeowners. Maureen Hobson, a Warwick attorney and one of the nearly two dozen property owners initially opposed to the project, also asked CRMC not to delay its decision beyond Tuesday.

The problem, as council member Kevin Flynn pointed out, is that a vote followed by a court appeal could extend even further the timeline before the project gets rolling.

“What’s the most expeditious way to resolve this?” Flynn asked.

“If we approve it tonight and an appeal is filed, it could drag on for who knows how long. If we delay another month, then the notice issue, no matter how you look at it, would be completely obliterated. That would potentially benefit the applicant more than an appeal to Superior Court.”

While the CRMC is no stranger to lawsuits, fear of potential litigation should not dictate when and what council members decide, said Anthony DeSisto, the council’s attorney. Even if given another month to satisfy public notice requirements, Fay and his clients may still oppose the project for other reasons, he added.

Fay acknowledged his clients also shared concerns how the project might interfere with property owners’ existing and planned future uses for the pond. Fay didn’t ask for a postponement, but asked the CRMC reject the application altogether on the grounds that the agency failed to meet its own public notice requirements to nearby property owners.

Fay could not be reached for comment on Wednesday but has 30 days to file an appeal of the council’s decision in state Superior Court.

Nancy Lavin is a staff writer for the Rhode Island Current.