Episode 57 Transcript: Champlin’s Marina Vs. CRMC
CLARICE: Good morning, everybody. Thank you for tuning in to this week’s episode of Environmentally Speaking.
MARISA: Hi, everybody. I’m Marisa Desautel an environmental attorney here in Rhode Island.
CLARICE: And I’m Clarice or Clarice Parsons. Survey is in the works.
MARISA: Has there been any feedback about your full name?
CLARICE: Not yet. I just saw the post to go out, so that poll should be up soon. I’m very excited to see what you guys have to say. I’m sticking firm, Clarice, Cher, Beyond. But either way I’m coming in with questions, topics, things we want to talk about. And this week, Marisa, you suggested this topic. I’m excited for it.
MARISA: I did. Yeah. It’s a very hot topic in Rhode Island and I think it has to do with the sheer number of parties that are involved as well as the lengthy litigation history of the case. It’s been through multiple venues, this particular matter, and a final decision was issues on the matter by the Rhode Island Supreme Court this past week. So the matter that I’m talking about is Champlin’s Marina versus the CRMC.
CLARICE: Yes. This one’s a big one and for a couple reasons. Like you said, there are a lot of parties in this case, a lot of interveners – see last week’s episode – a lot of back and forth and it’s been happening for a long time. I didn’t realize this has been going on since 2003.
MARISA: Oh, yeah. Yeah. It’s a very storied matter. Basically a group known as the Champlin’s Marina – legally speaking it’s called Champlin’s Realty Associates, but if you’re familiar with Block Island at all you know Champlin’s Marina and it’s been there for a while. It attempted to expand the footprint of its marina to accommodate more boats. And part of that application showed that the expansion would result in the marina taking over a portion of the town’s mooring field.
I don’t know if you boat at all, Clarice, but mooring fields are governed by something called a Harbor Management Plan where the municipality looks at the area of a body of water that’s adjacent to the municipality and does its calculations and figures out how many private moorings can go and public moorings can go in that area. A mooring is just a floating dock essentially. You can tie one boat to it. Sometimes boats will raft with each other on one mooring, but the idea is that you’re not using a marina. You’re keeping your boat at a mooring and then of course you have to take some kind of dinghy or a tender in to shore because you don’t have access to a marina. But generally speaking it’s less disruptive to the marine environment because you’re not disturbing as much benthic habitat as you do for a marina.
[0:03:44] CLARICE: And that’s just because it’s almost entirely floating. There are much fewer ankle points and much fewer structures around it.
MARISA: Right. That’s right.
CLARICE: Okay. Just to give our guys a visual.
MARISA: Yeah. So 2003 the Champlin’s Realty Associates go to the Coastal Resources Management Counsel because they’re seeking approval for this expansion and it’s denied. The CRMC says, no, we don’t think that it’s appropriate under CRMC’s regulations and we’re denying it. So without getting into the weeds on the litigation between 2003 and 2022 because that – it’s super interesting, but it, you know, would take probably two hours to go through everything and I would rather focus our time on the issues that are more current in terms of what the Rhode Island Supreme Court decided.
CLARICE: But if you need to sleep or you’ve got a lot of time, there’s from 2003 to 2020 of facts and travel you can read.
MARISA: That’s right.
CLARICE: All right. So tell me what’s going on today.
MARISA: Okay. So as part of the regulatory process at the CRMC, when a decision is rendered by a state agency like the CRMC any aggrieved party can appeal the final decision to the Rhode Island Superior Court. And in that context the applicant becomes the appellant. The CRMC is the appellee. And in this case you had some interveners that came in who are also kind of similarly situated to the CRMC in the context that they thought the marina expansion should be denied. So as part of that Superior Court appeal process, there were multiple hearings on the matter and ultimately the applicant Champlin’s Marina lost in Superior Court and they filed something called a petition for writ of certiorari with the Rhode Island Supreme Court.
The petition for writ is a discretionary process that the Rhode Island Supreme Court will accept a petition and decide yes or no whether or not they want to hear it. It’s not a mandatory right of appeal. So the Rhode Island Supreme Court said, yes, we will take these writs for certiorari. We think this matter is important. And I think also because the parties intervening, including the Rhode Island attorney general, were involved. I mean, it made a lot of sense, I think, to everyone in Rhode Island that the Rhode Island Supreme Court should engage in review of what had been going on.
So the crux of the argument by the interveners, including the attorney general, was that actions taken after the application was denied by the CRMC were not appropriate. These actions include CRMC and Champlin’s executing something called a joint memorandum of understanding and participating in private mediation after CRMC denied the application. Does that make sense so far?
[0:07:36] CLARICE: Yes. Yes. And for a little bit of background, I am actually a mediator.
MARISA: You are.
CLARICE: So, yeah. Hearing this discussion is a lot of keywords I know, but I’m going to ask for some clarifications as we go through just to make sure other people know.
MARISA: Okay. The town of New Shoreham was one of the interveners. New Shoreham is Block Island and part of their issue with how CRMC conducted itself was that this purported mediation was not something that the town of New Shoreham should get involved in. So the question arose about the validity of the mediation process and this joint memorandum of understanding whether or not the CRMC should be engaging in that type of behavior.
CLARICE: And backing up a little bit, the mediation was between, for our sake, Champlin’s Marina, New Shoreham, and it did include CRMC?
MARISA: So the MOU and the mediation was between CRMC and Champlin’s Marina. The town of New Shoreham was contacted by CRMC and discussion ensued at the town council meeting. The town ultimately decided that they were not going to get involved in the proposed mediation process, so ultimately this mediation moved forward with just CRMC and Champlin’s Marina.
CLARICE: Okay. So the town wasn’t even included in that.
MARISA: They had an opportunity, but they voted not to be involved.
CLARICE: And this isn’t even including any of the other interveners that we mentioned.
MARISA: That’s right.
MARISA: That’s right.
CLARICE: So these are the people at the table.
MARISA: Yes. So in December of 2020, the CRMC put this joint memorandum of understanding on its agenda in both executive session and open session. If you’d like to know more about those two phrases, I think we’ve done a few episodes on the Open Meetings Act. But the CRMC went through a public process to discuss the MOU and then voted to ratify it in open session, so the public had knowledge that this MOU was moving forward. So as a result of that MOU and the beginning of the mediation process, there were really three questions that came out.
Firstly, did CRMC and Champlin’s have the authority to mediate. Second, what type of notice is required for mediation and was sufficient notice given. And third, is the MOU a final decision. So those three questions were sent back down to the Rhode Island Superior Court by the Rhode Island Supreme Court so that there could be hearings on those issues.
And ultimately the decision of the Rhode Island Supreme Court was that the parties – in Rhode Island parties are always encouraged to mediate and try to come to a settlement, so the court said, you know, it’s nice that the parties are trying to mediate. We have our own – the Rhode Island Supreme Court has its own mediation process. But ultimately the CRMC’s regulations do not allow for a settlement after the CRMC denies a project. That’s very particularized to the CRMC and its own regulations. CRMC has its own regulations that they promulgated and those regulations say that the council and the executive director can modify a final decision only if it has been approved. You can’t modify a final decision if it was denied.
[0:12:05] CLARICE: And for a little bit of context and kind of just to reframe it for folks, it’s almost like going to court and the judge saying, this is the decision, and then you leave and say, well, let’s work out something else. It’s already been decided in that sense.
MARISA: Well, that’s an interesting segue because one of the other issues that the Rhode Island Supreme Court talked about is what’s the role of the CRMC and other state agencies on appeal to the Superior Court. Is the Superior Court process an extension of the administrative process, or does the CRMC convert into a private litigant. And the Rhode Island Supreme Court said the state agency is not a private litigant. They are entrusted to protect the rights of the public in Rhode Island and the Superior Court review process is an extension of the administrative process. So the example at you just gave about how private parties try to settle after a decision actually doesn’t and can’t apply to the CRMC or another state agency.
CLARICE: Makes sense now. Yeah. So these three questions come back. What are the decisions?
MARISA: The Rhode Island Supreme Court held that the decision of the Superior Court was wrong in determining that the CRMC and Champlin’s had authority to mediate and accordingly they declined to incorporate and merge the memorandum of understanding into a format that would make it binding on all the parties. So a little confusing here, I recognize. But the Rhode Island Supreme Court provides a recitation about how it’s so important for parties to always try to settle cases, but in this particular case the CRMC had denied the project application, so it’s over. You cannot try to settle a matter that a state agency has denied. You could try to settle a matter and change the final approval if the application had been approved. Are you getting that nuance? Am I explaining that well?
CLARICE: Yes. Yes. So it kind of comes down to the idea that the matter was decided and with that decision was closure. It wasn’t open to a continued discussion.
[0:14:42] MARISA: That’s right. Now, you always have the right of appeal. If CRMC denies your application, you can appeal that to the Superior Court. Any aggrieved party can make an appeal to the Superior Court. The issue here is whether the activity of the CRMC and Champlin’s to enter into this settlement and memorandum of understanding was appropriate and the Supreme Court is saying, no, it’s not. Once an agency issues a denial the only course of action is the standard appeal process in Superior Court and the Rhode Island Supreme Court.
CLARICE: So what happens now? They’ve made this decision.
MARISA: Well, Champlin’s could appeal to the United States Supreme Court. I’ve got no idea whether they would do that or not. This decision just came out, so I’m sure the parties are going through their options at this point.
CLARICE: So where the decision stands in terms of can they have more marina space, right now it’s a no?
MARISA: It’s okay.
CLARICE: Okay. Wow. I mean, that’s years and years of discussion –
CLARICE: — and like you said, so many parties.
MARISA: Almost 20 years.
MARISA: Right. Lawyer math.
CLARICE: It’s going to sound silly, but that’s just such a long time.
MARISA: It’s a long time.
CLARICE: I feel like that conflict has become a part of just Rhode Island gossip in that sense.
MARISA: Oh, yeah.
CLARICE: So what are we going to talk about now? I mean, there’s still always traffic and potholes, but we can’t talk about this anymore.
CLARICE: End of a couple decades.
CLARICE: Well, awesome. Thank you for bringing that in. This was an interesting kind of, you know, what’s happening around Rhode Island, some Rhode Island news.
MARISA: Yeah. You know, it’s funny for me reading through the decision. It was pretty lengthy. I think it’s 55 pages.
CLARICE: Fifty-five pages.
MARISA: Fifty-five pages. And just being completely honest here, on a regular basis I think to myself, wow, I am an idiot. You know, like there’s some really smart people out there and I envy those people, but reading through this decision I understood it. I was tracking what they were saying and I feel like my experience at this point in my career was helpful, so I’d like to say that I feel a little bit better about my mental acumen as a result of this decision.
[0:17:26] CLARICE: So you got a nice ego boost out of reading it?
MARISA: That’s right.
CLARICE: I like it.
MARISA: I’ll feel like an idiot again by the end of the day, so don’t worry.
CLARICE: Something will come up. Well, if you guys have any local news or something that’s just become ingrained in Rhode Island or at least in recent Rhode Island pop culture feel free to send it over to us. You could reach us on the socials at Desautel Law. You could also e-mail us at Help@DesautelESQ.com. There will be an upcoming poll on how you feel about my name. It’s a weird question to ask the masses, but I guess I want to know.
MARISA: I like that we have a fine balance between really technical legal consideration and should we use your last name in the podcast. It’s good. It’s good for us.
CLARICE: Both are equally serious matters, I mean, really.
MARISA: Well, okay. Well, thanks, Clarice.
CLARICE: Thank you. And thank you guys for listening. We will see you next week.