Nearly 4 years on, and no decision

It is the biggest legal case on Block Island in years, and it shows no signs of going away. A proposal by a marina to double its size set off explosive public hearings six years ago and is headed to the R.I. Supreme Court at the end of the month.
Champlin’s Marina wants to expand by about 4 acres in the Great Salt Pond and add 75 slips to its existing 225 slips. After a set of contentious hearings, the R.I. Coastal Resources Management Council (CRMC) denied the application on a 5-5 tie vote in February 2006. The marina sued, alleging that some members of the council and even Gov. Donald L. Carcieri conspired outside of hearings to sink the project.
In February 2009, a Superior Court judge agreed and erased the votes of three members to turn the decision into a 4-3 vote in favor of the marina. Judge Netti Vogel also said the marina could expand by just more than 3 acres. The town, CRMC and environmental groups were livid, appealed and persuaded the Supreme Court to hear the case, which has set oral arguments for Sept. 29.
Kim Gaffett, the island’s first warden, said the town of New Shoreham planned to argue that Vogel exceeded her authority and should have returned the case to the CRMC for another hearing. If the decision is upheld, Gaffett said it would send the wrong message to developers.
“I think that would be devastating for the public’s land,” Gaffett said. “She would have just given away that land, taken it from the public and given it to a private business owner.”
Gaffett said Vogel appeared to arbitrarily pluck members to turn the vote in favor of the marina. And Gaffett disagreed with Vogel’s conclusion that she could not send the case back to the CRMC because the council remains in a sort of limbo while lawmakers and the governor spar over how to re-populate the council.
“If the ruling that we’re appealing were to stand, they would be getting the entire request, and we believe it’s too much,” Gaffett said. “The process is flawed, and the request is flawed. It really needs to go back to CRMC and have adequate give-and-take hearings.” Not surprisingly, the marina sharply disagrees. In a brief filed Aug. 31, lawyer Robert Goldberg said the expansion plan received more than a fair airing after 23 sub-committee hearings. He said the objectors should not get another “bite at the apple” just because they disagreed with the result.
“The Champlin’s Marina expansion application has been subjected to a scrutiny unparalleled in the history of the CRMC,” wrote Goldberg, a lawyer and Statehouse lobbyist whose wife is a Supreme Court justice.
Robert Goldberg acknowledges that the town may have a vested interest in the expansion because the new boat slips would compete with the town mooring field nearby. But the conservation groups, he said, cannot fight a case that they hold no real interest in.
“Petitioners have no other interest in this case but to drag the Champlin’s matter out for as long as they possibly can, prevailing not on the merits, but by alteration,” he wrote.
And to conservation groups that argued courts hold no authority to overturn the decisions of agencies, Goldberg replied it happens all the time.
Providence lawyer Dan Prentiss, who represents the conservation groups, which include the Conservation Law Foundation and the Committee for the Great Salt Pond, among others, said on Sept. 1 that he had not yet reviewed Goldberg’s latest filing. But he said Vogel made “really grievous and extensive legal errors” by granting the expansion and hand-picking which votes to exclude. He promised to make that argument in a Sept. 10 filing.
Prentiss said the fact the Supreme Court agreed to hear the case was a positive step, but far from an assurance that the justices would reverse the lower court’s decision. Gaffett, on the other hand, remained optimistic. “I’ve read the briefs. I think they’re strong and her ruling will not stand. But what happens then, that’s really interesting,” Gaffett said.
Brian A. Goldman, a lawyer for the CRMC, said the agency was preparing a response, which was slated to be filed on Sept. 10. Until then he declined to comment other than to say “We always felt we were right on the law and the facts.”
The case itself revolves around specific people and specific situations, and the Supreme Court will only look at the legal arguments around the case, not the merits of an expansion. But the broader message sent by any decision could resonate with marina owners around the state. Many will be watching whether Champlin’s argument that adding slips expands access to public waters makes sense.
Megan Higgins, research counsel at Roger William’s University Marine Institute, thinks the argument is a stretch at best.
“You’re giving a very finite group of people access,” she said.
Those people must be able to afford the docking fee, presently between $3.75 and $5 a foot at Champlin’s, depending on the boat’s size. And a marina closes a section of a pond to other uses such as recreational boating, aquaculture or public moorings.
Higgins said decisions about the use of public waters should remain in the hands of agencies with knowledge of the issue, in this case the CRMC. Higgins, a former policy analyst at the CRMC, said administrative procedure already calls for judges to send such cases back to the agency with the knowledge about the topic at hand. A decision by the Supreme Court to uphold Vogel’s decision could marginalize the CRMC, Higgins said.
“I could see how people wouldn’t hold the council hearings as serious as they should,” she said. &#8226