Judge: Settlement allowing Champlin's Marina expansion was properly reached
A Superior Court judge on Thursday concluded that the mediated settlement of an 18-year battle over a controversial Block Island marina expansion was “created with propriety and [is] sufficiently conclusive.”
However, in his 66-page decision, Judge Jeffrey A. Lanphear added that that “another hearing is necessary to allow for any opportunity [for opponents of the project] to be heard.”
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Attorney General Peter F. Neronha, who in January intervened in the case, assailed Lanphear’s decision.
“Rhode Islanders should be deeply disappointed by today’s Superior Court decision and rightly worried about what this decision means for us should it survive its eventual appeal.”
It is the latest chapter in the case of a proposed expansion to Champlin’s Marina in the Great Salt Pond, a plan that a coalition of opponents has spent hundreds of thousands of dollars in legal fees fighting over nearly two decades.
The Hummel Report, in an investigation published Feb. 7 in The Providence Sunday Journal, detailed the events leading to what a lawyer for marina opponents called a “lawless attempt to fix litigation.”
Retired Supreme Court Chief Justice Frank Williams brokered the agreement in which Champlin’s and the state’s Coastal Resources Management Council agreed to a scaled-down version of the marina expansion, but without any public input.
Over seven days of hearings in July and August, Lanphear heard testimony from more than a dozen witnesses about how the mediation came together – including an email from CRMC attorney Anthony DeSisto saying that mediation would not go forward without the participation of the project's opponents.
Williams and DeSisto testified that they later told the opponents they’d proceed without them.
“All parties were aware that Champlin’s and the CRMC were seeking to mediate the decades-old controversy,” Lanphear wrote. “When the public groups and New Shoreham refused to even discuss a resolution, and New Shoreham was told that the mediation would continue without their participation, it was appropriate for Champlin’s and the CRMC to mediate without them.”
The Supreme Court on June 11 remanded the case to the Superior Court, ordering Lanphear to produce “findings of fact and conclusions of law” about the settlement, giving him 90 days to do it. Lanphear issued his decision on the afternoon of the deadline.
R. Daniel Prentiss, an attorney for the so-called intervenors, said he is reviewing the case. His next step is to go back to the Supreme Court with a response to Lanphear’s findings.
“The decision does not address the fundamental question that mediation is a voluntary process and my clients reject this proposed settlement,” Prentiss told The Hummel Report after the decision was issued. “They can’t be bound to a settlement that they don’t agree with.”
Champlin’s attorney, Robert D. Goldberg, in a statement said: “We are pleased with …Judge Lanphear’s ruling recognizing the validity of the [memorandum of understanding] reached between Champlin’s and CRMC. We hope that the ruling will resolve this 18-year dispute and allow Champlin’s to finally move forward with its modest expansion that protects the environment while also providing enhanced public access to the Great Salt Pond.”
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Goldberg noted that the revised plan is a third of the size of the original proposal.
“While the Supreme Court must now consider the lower court’s ruling, we are hopeful that the special interest intervenors in this case will put aside what has been an unnecessary and vicious campaign of name calling and misinformation,” he added. “We call on them to cease their attempts to tarnish Champlin’s, the CRMC, the mediator, the mediation process and even the judiciary.”
A key disagreement between Goldberg and Prentiss is whether the CRMC was authorized to mediate a settlement after its rejection of Champlin’s original proposal was appealed to Superior Court.
Lanphear wrote: “This Court finds that when Champlin’s appealed the CRMC decisions of January 11, 2011 and May 6, 2011, the CRMC’s actions were no longer that of an administrative agency acting as an adjudicator, but that of an administrative agency acting as an advocate before the judiciary. In other words, the CRMC became a party to the appeal in the Superior Court. As such, the CRMC and Champlin’s, as two parties, could enter settlement discussions and proceed to mediation. During this ten-year travel, it is probable that they were encouraged by several judges to do so.”
Neronha didn’t hold back in a statement issued Thursday afternoon, ripping the judge’s reading of the law, and the CRMC.
“Today, however, another Superior Court decision by a different judge has inexplicably tossed all the CRMC’s original transparent and fact-supported regulatory decision-making out the window and opened the door for its replacement with something the Administrative Procedures Act precisely forbids: a non-public, non-transparent, entirely unsupported mediation,” the attorney general wrote.
“The CRMC could have stood up for the people of Rhode Island and defended the initial Superior Court decision, which denied the marina expansion in the Supreme Court. Instead, they bent to expediency and were rolled. Today’s decision is a win for deals constructed behind closed doors while doing the people’s business, when the law demands precisely the opposite. But this is not the last battle,” Neronha said.
Prentiss said it will ultimately be up to the Supreme Court to determine whether Lanphear’s conclusion of law is correct and if additional hearings are, in fact, needed.
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.