Perhaps this belongs in another forum but since a fair number of us visit Block Island regularly I wanted to post it here...
Link to article
Judge grants Champlin's expansion
by Peter Voskamp
02/28/09 - Nearly two years after the Coastal Resources Management Council denied the Champlin's Marina expansion by a dramatic tie vote, Superior Court Judge Netti Vogel Tuesday reversed the decision and granted the marina a slightly downscaled expansion.
This is the latest development in the nearly six-year saga.
The expansion now permitted would cover 3.08 acres of the Great Salt Pond, jutting 170 feet farther into the pond than the present dock, with an additional 25-foot marina perimeter on the seaward side.
The marina had originally proposed adding four acres, pushing 240 feet farther into the Great Salt Pond, with an additional 2,990 feet in fixed docks, making room for approximately 140 more boats.
Vogel's decision is based primarily on the actions of three CRMC members, whom she says should not have been allowed to vote on the matter in 2006. In her 90-page ruling, Vogel asserts that council Chairman Michael Tikoian, Vice Chairman Paul Lemont, and council member Jerry Zarrella demonstrated a lack of impartiality and “engaged in prohibited ex parte communications" - communication outside the official record - that disqualified them from taking part in the full council vote.
Minus their votes, Vogel writes, the final tally would have been 4-3 in favor of the recommendation by the subcommittee that had heard testimony on the matter, rather than the tie that in effect was a denial.
Subcommittee rationale
Champlin's filed its application in May 2003. The CRMC moved the matter to subcommittee, made up of Lemont, Zarrella, Jerry Sahagian and Tom Ricci. It remained there for two years and 23 hearings.
On the island a formidable grass roots effort coalesced; the Committee for the Great Salt Pond, the Block Island Conservancy, the Block Island Land Trust and the Conservation Law Foundation joined the town to fight the expansion.
On October 24, 2005 the subcommittee recommended a trimmed-down expansion, in a 3-1 vote.
The group's rationale, which Vogel describes, was that the town mooring field lies 365 feet off the present-day Champlin's. An expert testifying for the town said that a 200-foot extension was viable and would still allow a 100-foot buffer.
The subcommittee members also claimed that the town had offered “no reasonable alternatives."
In February 2006, the full 10-member CRMC, in what Vogel calls a contentious meeting, deadlocked 5-5. Soon thereafter the marina filed an administrative appeal.
Judge Vogel had a choice: uphold the original denial, modify the decision, send the application back to the CRMC for another vote, or simply grant the expansion from the bench. She took the latter route.
The вЂGoulet plan'
The marina alleged improper procedure and behavior, especially on the part of Chairman Tikoian.
The marina also filed a parallel action in federal court against Gov. Donald Carcieri, claiming that he had worked with Tikoian to torpedo the marina's plan. That suit was thrown out.
The judge repeatedly makes the point that the CRMC decision process is “quasi-judicial," requiring CRMC members to consider only the information entered on the official record, not to seek information or opinion outside the record, and not to prejudge the case.
But during the two years of the appeal, testimony revealed, there was considerable improper communication among council members and with CRMC staff and others.
The so-called “Goulet Plan" also emerged. Dan Goulet, a CRMC staff engineer, drew up at the behest of Lemont and Tikoian a smaller marina expansion plan. This plan, according to testimony, was shared with some but not all council members and even with the governor, but was never formally introduced in a subcommittee hearing.
Vogel contends that the Goulet plan “irrevocably tainted the proceedings" because the state Supreme Court said in Arnold v. Lebel that decision makers are prohibited “from communicating with anyone, including agency professionals like Goulet and [CRMC Director Grover] Fugate, about contested, adjudicatory facts without giving notice to the parties and the opportunity to respond on the record, including cross-examination.
“There is no question that Lemont and Tikoian shared responsibility for directing staff to develop the plan and served as its chief advocates with other members."
Vogel reserves some of her strongest language for Tikoian, whom she cites for a number of infractions - “numerous ex parte communications with CRMC subcommittee members, CRMC staff, reporters, the governor's staff and with the governor himself" - that “reflect prejudgment of the Champlin's application and the appearance of impropriety."
She adds, “Tikoian's public comments entrenched him in a position opposed to both Champlin's application and the subcommittee recommendation, destroying his ability to approach with an open mind the deliberation process at the meeting of the full council."
Lemont, according Vogel, “acted in concert with Tikoian in an effort to defeat not only the application as submitted, but also the subcommittee recommendation."
Zarrella backs Grillo
Vogel disqualified Zarrella's vote because of testimony that he repeatedly lobbied town officials on behalf of the marina.
Former First Warden Jack Savoie, former Town Councilor Robert Ellis Smith, and Town Manager Nancy Dodge all testified that Zarrella had approached them separately to talk about the marina.
According to Smith, Zarrella said that marina owner Joseph Grillo was “entitled to his expansion ... Islanders were kind of naïve about not respecting development and seeing a good project when they saw it. Here was a man that was interested in commerce and the island was turning a deaf ear toward him and that I should get to know him."
Vogel concluded that Zarrella “…demonstrated support for the position of one party. Once he did that, Zarrella became an advocate or a participant, ceasing the ability to function as an impartial trier of fact."
Reached Wednesday on St. Kitts, Zarrella acknowledged that he “did have conversations" with town leaders in an effort to settle the case, and he believes Vogel was right to disqualify his vote.
He called the chain of events, “Block Island's Great Mistake." As a result of not compromising with Champlin's, the island “lost control of the Great Salt Pond," he said. “It's a shame."
He said, however, that, “the jury was rigged."
“This guy was cheated" by the original CRMC denial, Zarrella added, referring to Grillo. He maintains that island intransigence brought about the current situation.
Considering an appeal
First Warden Kim Gaffett said she was disappointed. “We had hoped that it would at least be remanded," she said.
The Town Council will be updated at its next meeting on March 2, and may go into executive session to weigh further legal action.
Since 2006 the town has spent $60,473 on legal costs in the Champlin's case, said Finance Director Amy Land. Before that, the town's solicitors handled the matter with other town work and so there is no record of specific Champlin's costs, Land said.
Attorney R. Daniel Prentiss, who has represented the town, the Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy, said Tuesday, “Obviously, I believe my clients will seek further judicial review. It appears we have a substantial disagreement about the law." The CSGP has spent approximately $150,000 on the Champlin's matter, according to President Corrie Heinz.
There is no automatic right of appeal. Instead, objectors would be required to file a writ of certiorari with the state Supreme Court within 20 days.
Jerry Elmer, who represented the Conservation Law Foundation, said in an e-mail that his organization was also disappointed. “By granting Champlin's application to expand, the court has ignored the well-documented negative water-quality and other environmental impacts of the marina on one of Rhode Island's natural treasures, the Great Salt Pond. Specifically, CLF believes that the court was mistaken on the issue of remedy… the proper remedy was for the court to remand the case to the CRMC for further proceedings, not just grant the permit application itself."
Champlin's attorney Robert Goldberg, on the other hand, said, “The decision should come as no surprise." Vogel, he said, “addressed all the issues in the case."
He said he hopes that the town and other objectors will take “guidance" from the decision and will “try to work with us."
Goldberg said his wife, Supreme Court Justice Maureen McKenna Goldberg, would recuse herself if the matter came before that court.
CRMC not legal?
After both sides conceded during the appeal hearings that ex parte communication had occurred, both Vogel and the attorneys involved openly discussed remand - returning the matter back to the council for revote - as a possible remedy.
However, Vogel argues in her decision that the council is no longer a legal entity given its current membership.
She based that decision on the state Supreme Court's recent advisory opinion to the House of Representatives. The decision affirmed the Separation of Powers Act, passed by voters in 2004, that removed legislators and their appointees from agencies such as the CRMC. The decision “effectively renders the current CRMC unconstitutional because it is made up of members appointed by the General Assembly," writes Vogel.
The time it would take for the governor to appoint new CRMC members, Vogel argues, would be unfair to the applicant “who has already incurred enormous expense and who has encountered substantial delay in having its application determined." She therefore granted the application herself.
Link to article
Judge grants Champlin's expansion
by Peter Voskamp
02/28/09 - Nearly two years after the Coastal Resources Management Council denied the Champlin's Marina expansion by a dramatic tie vote, Superior Court Judge Netti Vogel Tuesday reversed the decision and granted the marina a slightly downscaled expansion.
This is the latest development in the nearly six-year saga.
The expansion now permitted would cover 3.08 acres of the Great Salt Pond, jutting 170 feet farther into the pond than the present dock, with an additional 25-foot marina perimeter on the seaward side.
The marina had originally proposed adding four acres, pushing 240 feet farther into the Great Salt Pond, with an additional 2,990 feet in fixed docks, making room for approximately 140 more boats.
Vogel's decision is based primarily on the actions of three CRMC members, whom she says should not have been allowed to vote on the matter in 2006. In her 90-page ruling, Vogel asserts that council Chairman Michael Tikoian, Vice Chairman Paul Lemont, and council member Jerry Zarrella demonstrated a lack of impartiality and “engaged in prohibited ex parte communications" - communication outside the official record - that disqualified them from taking part in the full council vote.
Minus their votes, Vogel writes, the final tally would have been 4-3 in favor of the recommendation by the subcommittee that had heard testimony on the matter, rather than the tie that in effect was a denial.
Subcommittee rationale
Champlin's filed its application in May 2003. The CRMC moved the matter to subcommittee, made up of Lemont, Zarrella, Jerry Sahagian and Tom Ricci. It remained there for two years and 23 hearings.
On the island a formidable grass roots effort coalesced; the Committee for the Great Salt Pond, the Block Island Conservancy, the Block Island Land Trust and the Conservation Law Foundation joined the town to fight the expansion.
On October 24, 2005 the subcommittee recommended a trimmed-down expansion, in a 3-1 vote.
The group's rationale, which Vogel describes, was that the town mooring field lies 365 feet off the present-day Champlin's. An expert testifying for the town said that a 200-foot extension was viable and would still allow a 100-foot buffer.
The subcommittee members also claimed that the town had offered “no reasonable alternatives."
In February 2006, the full 10-member CRMC, in what Vogel calls a contentious meeting, deadlocked 5-5. Soon thereafter the marina filed an administrative appeal.
Judge Vogel had a choice: uphold the original denial, modify the decision, send the application back to the CRMC for another vote, or simply grant the expansion from the bench. She took the latter route.
The вЂGoulet plan'
The marina alleged improper procedure and behavior, especially on the part of Chairman Tikoian.
The marina also filed a parallel action in federal court against Gov. Donald Carcieri, claiming that he had worked with Tikoian to torpedo the marina's plan. That suit was thrown out.
The judge repeatedly makes the point that the CRMC decision process is “quasi-judicial," requiring CRMC members to consider only the information entered on the official record, not to seek information or opinion outside the record, and not to prejudge the case.
But during the two years of the appeal, testimony revealed, there was considerable improper communication among council members and with CRMC staff and others.
The so-called “Goulet Plan" also emerged. Dan Goulet, a CRMC staff engineer, drew up at the behest of Lemont and Tikoian a smaller marina expansion plan. This plan, according to testimony, was shared with some but not all council members and even with the governor, but was never formally introduced in a subcommittee hearing.
Vogel contends that the Goulet plan “irrevocably tainted the proceedings" because the state Supreme Court said in Arnold v. Lebel that decision makers are prohibited “from communicating with anyone, including agency professionals like Goulet and [CRMC Director Grover] Fugate, about contested, adjudicatory facts without giving notice to the parties and the opportunity to respond on the record, including cross-examination.
“There is no question that Lemont and Tikoian shared responsibility for directing staff to develop the plan and served as its chief advocates with other members."
Vogel reserves some of her strongest language for Tikoian, whom she cites for a number of infractions - “numerous ex parte communications with CRMC subcommittee members, CRMC staff, reporters, the governor's staff and with the governor himself" - that “reflect prejudgment of the Champlin's application and the appearance of impropriety."
She adds, “Tikoian's public comments entrenched him in a position opposed to both Champlin's application and the subcommittee recommendation, destroying his ability to approach with an open mind the deliberation process at the meeting of the full council."
Lemont, according Vogel, “acted in concert with Tikoian in an effort to defeat not only the application as submitted, but also the subcommittee recommendation."
Zarrella backs Grillo
Vogel disqualified Zarrella's vote because of testimony that he repeatedly lobbied town officials on behalf of the marina.
Former First Warden Jack Savoie, former Town Councilor Robert Ellis Smith, and Town Manager Nancy Dodge all testified that Zarrella had approached them separately to talk about the marina.
According to Smith, Zarrella said that marina owner Joseph Grillo was “entitled to his expansion ... Islanders were kind of naïve about not respecting development and seeing a good project when they saw it. Here was a man that was interested in commerce and the island was turning a deaf ear toward him and that I should get to know him."
Vogel concluded that Zarrella “…demonstrated support for the position of one party. Once he did that, Zarrella became an advocate or a participant, ceasing the ability to function as an impartial trier of fact."
Reached Wednesday on St. Kitts, Zarrella acknowledged that he “did have conversations" with town leaders in an effort to settle the case, and he believes Vogel was right to disqualify his vote.
He called the chain of events, “Block Island's Great Mistake." As a result of not compromising with Champlin's, the island “lost control of the Great Salt Pond," he said. “It's a shame."
He said, however, that, “the jury was rigged."
“This guy was cheated" by the original CRMC denial, Zarrella added, referring to Grillo. He maintains that island intransigence brought about the current situation.
Considering an appeal
First Warden Kim Gaffett said she was disappointed. “We had hoped that it would at least be remanded," she said.
The Town Council will be updated at its next meeting on March 2, and may go into executive session to weigh further legal action.
Since 2006 the town has spent $60,473 on legal costs in the Champlin's case, said Finance Director Amy Land. Before that, the town's solicitors handled the matter with other town work and so there is no record of specific Champlin's costs, Land said.
Attorney R. Daniel Prentiss, who has represented the town, the Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy, said Tuesday, “Obviously, I believe my clients will seek further judicial review. It appears we have a substantial disagreement about the law." The CSGP has spent approximately $150,000 on the Champlin's matter, according to President Corrie Heinz.
There is no automatic right of appeal. Instead, objectors would be required to file a writ of certiorari with the state Supreme Court within 20 days.
Jerry Elmer, who represented the Conservation Law Foundation, said in an e-mail that his organization was also disappointed. “By granting Champlin's application to expand, the court has ignored the well-documented negative water-quality and other environmental impacts of the marina on one of Rhode Island's natural treasures, the Great Salt Pond. Specifically, CLF believes that the court was mistaken on the issue of remedy… the proper remedy was for the court to remand the case to the CRMC for further proceedings, not just grant the permit application itself."
Champlin's attorney Robert Goldberg, on the other hand, said, “The decision should come as no surprise." Vogel, he said, “addressed all the issues in the case."
He said he hopes that the town and other objectors will take “guidance" from the decision and will “try to work with us."
Goldberg said his wife, Supreme Court Justice Maureen McKenna Goldberg, would recuse herself if the matter came before that court.
CRMC not legal?
After both sides conceded during the appeal hearings that ex parte communication had occurred, both Vogel and the attorneys involved openly discussed remand - returning the matter back to the council for revote - as a possible remedy.
However, Vogel argues in her decision that the council is no longer a legal entity given its current membership.
She based that decision on the state Supreme Court's recent advisory opinion to the House of Representatives. The decision affirmed the Separation of Powers Act, passed by voters in 2004, that removed legislators and their appointees from agencies such as the CRMC. The decision “effectively renders the current CRMC unconstitutional because it is made up of members appointed by the General Assembly," writes Vogel.
The time it would take for the governor to appoint new CRMC members, Vogel argues, would be unfair to the applicant “who has already incurred enormous expense and who has encountered substantial delay in having its application determined." She therefore granted the application herself.