Neronha looks to get involved in Block Island marina case
NEW SHOREHAM — Opponents of a controversial marina expansion are furious about what they call a “secret backroom deal” that froze them out of an agreement to settle a 17-year-old case.
They point the finger at the state’s Coastal Resources Management Council and retired Supreme Court Chief Justice Frank J. Williams, who helped broker the agreement.
“This is a lawless attempt to fix litigation. There’s no other way to describe it,” said R. Daniel Prentiss, the attorney representing the town of New Shoreham and three environmental groups on Block Island. The opponents have raised more than half a million dollars since 2003 to fight the proposal by Champlin’s Marina on Great Salt Pond.
Williams shot back that Prentiss and the opponents gave up their seat at the table when they refused to participate in the mediation that ultimately led to a settlement.
“I’m trying to practice the politics of inclusion here, but they absolutely declined,” Williams said. “There’s a lot more to this than the editorializing that’s gone on.”
A Hummel Report investigation that included wide-ranging interviews over the past month with all the primary players in the case shows inconsistencies and miscommunication — or no communication — in the events that led to the proposed settlement in late December.
The Rhode Island Supreme Court will be asked to sort through it, although even that is in dispute.
“This is not giving away the store, or as [Prentiss] wrote, a fix. It’s quite insulting,” said Champlin’s Realty Associates attorney Robert D. Goldberg. “This litigation has lasted longer than a lot of marriages in Rhode Island.”
The CRMC rejected the original plans for expansion in 2006, a decision that was affirmed each time over more than a decade of litigation. But the agency decided on a compromise with Champlin’s in December after discussions between the CRMC, the marina’s lawyers and Williams, whom they brought in as a mediator.
“Why do people negotiate? To meet middle ground,” said Anthony DeSisto, the CRMC’s attorney, who said he was given the green light by the agency to mediate in November. “What happens if the case is overturned? That’s one of the things the CRMC council factored in. I don’t think there can be a complaint as to what CRMC has done here.”
The Great Salt Pond: The Beginning
Great Salt Pond, known to many boaters as New Harbor, covers more than 600 acres on the northwestern side of the island. In 2003, Champlin’s proposed nearly doubling the size of its facility, set on the western edge of the harbor.
The expansion would have taken four acres of the harbor, extending the pier 240 more feet into the water. It would have added 3,000 feet of pier to the existing 6,000 feet; installed an additional 755 feet of floating dock; and added 140 vessels to the 250 already allowed at the facility. Champlin’s also has a hotel, a restaurant and a swimming pool.
The opponents were concerned, among other things, about the effect the expansion would have on the town’s mooring field.
A CRMC subcommittee held 23 hearings over nearly two years that saw many islanders make the trip to Narragansett Town Hall to testify — often having to stay overnight on the mainland because of the ferry schedule.
In early 2006, the subcommittee ultimately decided by a 3-to-1 vote to approve a scaled-down version of the plan. But it died on a 5-to-5 tie vote of the full council.
Champlin’s appealed to Superior Court, where Judge Netti C. Vogel decided to hold additional evidentiary hearings — not on environmental evidence, but limited to issues of potential misconduct among some of the CRMC members.
Based on what she heard, Vogel reversed the decision of the full council and affirmed the approval of the subcommittee. The opponents appealed to the Supreme Court, and the proposal was ultimately sent back to the CRMC.
More hearings in the summer of 2010 eventually led to rejection of the proposal by the full coastal resources council in January 2011. Champlin’s once again appealed to the Superior Court in 2013.
It took Superior Court Judge Kristin Rodgers nearly seven years to issue a 56-page decision siding with opponents of the proposal, in February 2020.
Asked by The Hummel Report why it took so long, a court spokesman wrote in an email: “There will be no response from Judge Rodgers concerning the passage of time in the case.”
Opponents of the expansion viewed the judge’s decision as an “airtight” repudiation of the plan that they believed would end the litigation.
“CRMC acted within its authority to deny Champlin’s application, and that decision was rational, logical, and supported by substantial evidence,” Rodgers wrote.
“We actually held a ‘raise a glass’ celebration with 25 people, all toasting the early folks who battled,” said Sven Risom, the island’s second warden, who up until his election to the Town Council last fall was president of the Committee for the Great Salt Pond.
“At each juncture the CRMC and the court have said, ‘We heard you and you’re correct and the proposal is denied,’” said Claire Costello, a co-founder of the Committee for the Great Salt Pond who has also served on the Block Island Conservancy and Block Island Land Trust, which all banded together in the litigation against Champlin’s. The Conservation Law Foundation also joined the effort.
Champlin’s appealed again last summer to the state Supreme Court. Goldberg, the attorney for the marina, cited the CRMC subcommittee’s approval of the plans back in 2006. “That’s hard to walk away from,” he said, adding that, despite the opponents’ belief that Judge Rodgers’ decision was bulletproof, he saw holes.
“Her decision was based on the original application, whereas we went forward on what the subcommittee had awarded,” Goldberg said. “So there’s the disconnect right there.”
Negotiating a settlement
Goldberg and DeSisto ran into each other at the State House in the spring of 2019, working as lobbyists during the General Assembly session, nearly a year before Rodgers’ decision. “We both agreed it was foolish to keep litigating,” Goldberg recalled, and the two attorneys talked about the possibility of a negotiated settlement.
When the Supreme Court agreed to hear an appeal — it accepts just 20% of the cases it is asked to review when there is no right of appeal — talks picked up again. Goldberg said the high court must have seen something that concerned the justices enough to hear an appeal.
DeSisto suggested bringing in Williams to see if the parties could find middle ground. Williams pioneered a mediation program when he was chief justice of the high court and has handled several high-profile cases since he retired. The mediation was strictly voluntary.
The opponents wanted no part of it. They had prevailed at every part of the agency and court process. Prentiss, their attorney, said they believed “mediation” would only give Champlin’s something it had not been able to get over the last 17 years of hearings and litigation.
They also took issue with Williams being the mediator. As a Supreme Court justice, he had written a dissenting opinion a decade ago in a decision against Champlin’s.
“If this [case] had been formally involved in the mediation program, we would have rejected Frank Williams as a mediator,” Prentiss said. “This is not because [the opponents] disrespect Williams, but that they could never justify to the stakeholders who have supported this effort for 17 years having the case mediated by the judge who wrote the opinion that they should lose the case.”
DeSisto countered: “What would be the conflict, if it’s just a mediation? If the goal is to reach some type of a compromise, I don’t view that as an issue. I thought [Williams] was well placed because of his experience.”
Negotiations begin, without all the parties
On Nov. 30, DeSisto sent an email to Kathy Merolla, New Shoreham’s town solicitor.
“I just left a voicemail at your office,” he wrote. “At its November 24th meeting, the CRMC council voted to participate in mediation for the Champlin’s case, on the condition that the Town of New Shoreham also participate. Please call me to discuss.”
Merolla responded by email that she would discuss it with the Town Council the following week, at its first meeting after the election, and get back to him with its decision. Several new members had been elected, and Prentiss joined the Zoom meeting to bring them up to speed on the case.
Williams had also left a voicemail at Merolla’s law office. He followed up with an email Dec. 4 at 1:39 p.m: “Hi Kathy, trying to get you to have New Shoreham join Champlin’s and [the CRMC] in mediation.”
Four minutes later, she wrote the retired judge back, telling him the same thing she had told DeSisto: The matter was on the Town Council agenda for Dec. 7, and she would respond after a council decision on whether to participate.
“I never got a call back,” Williams said. “The email cut off any further communication. That’s what bothers me.”
Neither DeSisto nor Williams contacted Prentiss, even though he had represented the island groups opposing the project every step of the way for 17 years.
After Prentiss’ briefing at the Dec. 7 council meeting, the town and the three environmental groups agreed not to go the mediation route. Merolla told DeSisto of the council’s decision in an email the next day. She believed no mediation would happen without New Shoreham (and by extension the other opponents), based on what DeSisto had told her earlier.
Williams said he, Goldberg and DeSisto were “extremely disappointed” that the Block Island groups did not join in the mediation. When asked why he thought the opponents would want to join in, when they had prevailed at every step over the last 17 years, Williams said: “That was then, this is now. There was a pending appeal of the Superior Court in the Supreme Court — which invites mediation.”
Time to talk turkey: The deal is hammered out
After multiple preliminary calls with DeSisto and Goldberg, Williams said it was “really time to talk turkey.”
The lawyers, along with the executive director of the CRMC, Jeff Willis, and vice chair Raymond C. Coia, met in a hotel conference room in South County to hammer out the final details. The CRMC and Champlin’s reached a settlement for the scaled-down version of the original proposal, but no one contacted either Prentiss or Merolla to let them know about the agreement, or that the full coastal resources council would be voting on it at a meeting between Christmas and New Year’s.
It was the only item on the agency’s agenda for the Dec. 29 period, which said there would be a closed session to discuss the case, without any details or indication that a potential settlement had been reached. Williams joined the virtual meeting.
The first notification the opponents received was Jan. 7.
“When the council received the email from CRMC [about the settlement] there was a little bit of a gasp — and an ‘Are you kidding me?’ moment,” Risom said.
DeSisto told The Hummel Report that his Nov. 30 email to Merolla — assuring her that mediation would not go forward without the opponents — was incorrect.
“I created some confusion there,” DeSisto said. “If you take a look at the meeting minutes, that’s not what they voted on. That was a misstatement on my part.”
But he never followed up to correct it with Merolla, and the minutes of the closed session DeSisto referred to are under seal. Willis, the CRMC’s executive director, told The Hummel Report, “The gist of the marching orders were to go to mediation, ask the town if they want to participate.”
But Willis also said he believed the mediation was mandated by the Supreme Court, when, in fact, it was voluntary.
And why didn’t DeSisto tell Merolla or Prentiss that the CRMC had reached a settlement after 17 years?
“If they didn’t want to participate [in mediation], why would we say we’re even having a meeting?” he said. “Why would they want to participate in the end of the process? It seems to me they prefer to litigate, which is what they’re doing.”
Risom, the second warden, said, “I am furious when five people are in a discussion — that two people go off to have an extra drink, and then go the judge and say, ‘Aw, don’t worry about those three, they’re over there, they didn’t want to have a drink and so here’s the solution.’”
The Great Salt Pond: What happens next?
There is disagreement about the roles of the various parties in the case and where the litigation goes from here.
The four Block Island groups were granted “intervenor” status when the case began, but Prentiss has carried the lion’s share of the legal load. Prentiss says that once the case went to Superior Court eight years ago, and now to the Supreme Court, the CRMC had no authority to make a settlement under the Administrative Procedures Act. He said when Goldberg spoke with DeSisto about negotiating a settlement in 2019, DeSisto should have told him the CRMC could have no part in it because the matter had already been adjudicated and it was in the courts on appeal.
“CRMC has had no jurisdiction over this case since 2013,” Prentiss said. “It has no business — it is invading the province of the Supreme Court — to engage in a mediation without the Supreme Court’s authority.”
Goldberg and Williams said repeatedly that the Block Island groups were just intervenors, an argument Goldberg tried to make unsuccessfully to the Supreme Court in 2010.
“The intervenors were not parties to this,” Williams said. “But they had a right to participate in mediation.”
Goldberg said of Prentiss: “He’s only an intervenor, he doesn’t control the process. The regulatory body and the applicant have agreed on a settlement. A lot of what was ultimately agreed on was what [the CRMC] had suggested in the subcommittee stage.”
Goldberg said he believes the case is over and needs no further review by the Supreme Court, a sentiment echoed by Williams. They equated it to two parties in litigation who reach an out-of-court settlement.
Prentiss — and even DeSisto — say not so fast. They believe the mediated agreement, which Prentiss deems illegitimate, must be reviewed by the Supreme Court. Prentiss is preparing a brief for the justices outlining why.
Meanwhile, Champlin’s longtime owner, Joseph Grillo, sold the property and assets for a total of $25 million to Great Salt Pond Marina Property LLC, formed by the Procaccianti Companies of Cranston, on Dec. 23 — six days before CRMC approved the settlement.
Regardless of who owns the property, the opponents on the island say this case is far from over.
“I think the whole community is exhausted,” Claire Costello said. “This last maneuver really gave us whiplash. But it also galvanized us anew.”
“It’s like some kind of B-rated zombie movie; it keeps coming back,” said Henry duPont, a director on the board of the Committee for The Great Salt Pond. DuPont added that if Champlin’s wanted to propose a scaled-down version of its proposal it should have gone through the hearing process again, not bypassed it with mediation. “We specifically declined to mediate because there’s nothing to mediate.”
The town’s first warden, André Boudreau, said: “Our resolve on this is strong. We will continue to fight this until there isn’t anything to fight anymore.”
The Hummel Report is a 501(c)(3) nonprofit organization that relies, in part, on donations. For more information, go to HummelReport.org. Reach Jim at Jim@HummelReport.org.