04/18/0 - The town and its allies have filed appeals in two separate courts in an effort to overturn a recent Superior Court ruling allowing a Champlin’s Marina expansion.

The objectors, which, in addition to the town, include the Conservation Law Foundation, the Committee for the Great Salt Pond, the Block Island Land Trust and the Block Island Conservancy, filed two separate appeals Friday morning in the state Supreme Court and a joint appeal in Superior Court.

The Coastal Resources Management Council was also expected to file a writ of certiorari with the Supreme Court on Friday. CRMC attorney Marc Desisto did not respond to inquiries about the agency’s plans.

Superior Court Judge Netti Vogel handed down a 91-page decision February 24 that granted Champlin’s a 3.08-acre expansion extending 170 feet farther into Block Island’s Great Salt Pond. The allowed expansion was slightly smaller than the marina’s original request for 4 acres extending 240 feet into the pond.

Vogel based her decision on what she found to be improper communication and bias on the part of three CRMC members that voted on the expansion. With their votes disqualified, the final tally on the Champlin’s application — which the full CRMC denied via a 5-5 vote in February 2006 — became 4-3 in favor of the expansion.

Vogel also argued that she could not return the matter to the CRMC because the constitutionality of its current composition remains undetermined. She said to do so would unfairly burden the marina from a time and money standpoint.

‘Neither fair nor just’

“Two new chapters in the Champlin’s saga are being opened today, one in Superior Court and one in the Supreme Court,” said CLF attorney Jerry Elmer in a news release. “By filing these cases, we mean to protect the Great Salt Pond for our children and our grandchildren.”

The CLF filed its Supreme Court appeal separately from the other objectors.

The Supreme Court appeals pose different arguments but reach the same conclusion: the marina’s expansion should not be allowed — for procedural, legal and environmental reasons.

The CLF offers myriad arguments for why the approval should be overturned.

For one, it states that the CRMC acted “in blatant violation of [its] own rules” by allowing a subcommittee to begin hearings on the matter before the marina had secured a Water Quality Certificate from the Department of Environmental Management. (The marina eventually obtained a certificate, based upon a disputed number of boats.)

“This error is not merely a technical violation of an unimportant procedural rule,” Elmer writes. “The protection and preservation of Rhode Island’s coastal resources lie at the very core of CRMC’s role and function.”

He argues that the certificate issue alone is reason enough to reverse the Superior Court’s decision.

CLF also states that Vogel’s action was tantamount to CRMC approval of the marina’s application. The objectors are now the losing parties, Elmer argues, and as such have a right to appeal in Superior Court, just as Champlin’s did.

The marina’s appeal of the CRMC denial was devoted entirely to its grievances and “did not even consider — much less address — the Objectors’ substantive reasons as to why the CRMC permit ought not be granted,” writes Elmer.

“Champlin’s has its day in the Superior Court. Objectors have not yet had their day in Superior Court,” he writes.

Elmer points to the quote from U.S. Supreme Court Justice Potter Stewart that Vogel cited at the beginning of her decision: “Fairness is what justice really is.”

Elmer argues, however, that Vogel’s decision “is neither fair nor just.”

He says the time delays in the appeal process were due in large part to actions taken by the marina itself — inundating the proceedings with witnesses and making efforts to dismiss various CRMC members.

‘Permeated with errors of law’

Lawyer R. Daniel Prentiss, who prepared the Supreme Court appeal on behalf of the town and the other objectors, offers a plethora of arguments for his assertion that Vogel’s decision was “permeated with errors of law.”

He first lays out events occurring before the application was denied and ended up in Superior Court.

The CRMC let the town’s Harbor Management Plan languish unapproved for four years, from 1999 to 2003. Had CRMC approved the plan earlier it would likely have fixed the location of town mooring field E, which is now in play because of the expansion application. The town could lose 25 percent of that mooring field if the expansion is allowed.

And, in what he called an “extraordinary process,” Prentiss states that the CRMC moved forward to consider the Champlin’s application in a single evening — December 9, 2003 — not only before a Water Quality Certificate was in hand, but also without required approval from the U.S. Army Corps of Engineers or CRMC staff comments.

He argues further that the CRMC ignored the town’s request to seat Robert Ellis Smith as its representative on the council, instead selecting “East Greenwich real estate developer, Jerry Zarrella,” whose vote the Superior Court later dismissed because of his lobbying efforts with town officials on behalf of the marina.

Prentiss argues that the CRMC subcommittee on the expansion application “interfered” with the objectors’ presentation of evidence by disallowing expert witnesses and refusing “to admit obviously relevant exhibits into evidence.”

The same subcommittee, when recommending a 170-foot expansion, did not consider efficient use of public trust waters — required by law — or possible water quality impacts, according to Prentiss. The subcommittee recommended that “in lieu of a lease payment” the marina should contribute $10,000 a year for five years to a “Habitat Restoration Fund.”

Yet, Prentiss argues that by state statute and CRMC regulation “private entities may be granted exclusive occupation of public trust waters only by lease, under terms of rental payment that are fairly compensatory for the value of the resource.”

Prentiss points out that during the appeals process, Champlin’s was allowed to conduct two months of discovery in its federal lawsuit against Gov. Donald Carcieri that alleged improper interference in the marina matter. The suit was eventually dismissed.

However, Prentiss says that the state Superior Court conducted a “disturbingly one-sided hearing to permit Champlin’s to elaborate on its claims of victimization,” without allowing objectors to conduct their own discovery to explore bias on the parts of subcommittee members Tom Ricci and Jerry Sahagian, even though they were “assisting Champlin’s in its litigation.”

He says that the allowed expansion would “significantly add to the vessel congestion of the Great Salt Pond, create hazards to navigation by blocking existing travel lanes, and add substantial pollutants to the waters….”

The objectors’ joint filing in Superior Court echoes many of the same arguments put before the Supreme Court. It states that Vogel’s decision was “the exact equivalent of a final order by an administrative agency in a contested case,” and as a result the objectors have a due process right to have that decision reviewed.

The filing also calls the CRMC subcommittee’s recommended expansion “devoid of evidentiary support, and arbitrary and capricious.”

Champlin’s now has 20 days to file responses.