Champlin's Realty Associates v. Coastal Resources Management Council

October 14, 2022
Supreme Court
No. 2020-168-M.P.
(WC 11-615)
No. 2020-169-M.P.
(WC 11-616)
Champlin’s Realty Associates :
v. :
Coastal Resources Management :
Council et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email opinionanalyst@courts.ri.gov, of any typographical
or other formal errors in order that corrections may be
made before the opinion is published.
Supreme Court
No. 2020-168-M.P.
(WC 11-615)
No. 2020-169-M.P.
(WC 11-616)
Champlin’s Realty Associates :
v. :
Coastal Resources Management :
Council et al.
Present: Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. On October 19, 2020, this Court granted
two petitions for writ of certiorari filed by the plaintiff, Champlin’s Realty
Associates (Champlin’s), and we issued writs to review a June 17, 2020 judgment
of the Superior Court “affirm[ing] in all respects the May 6, 2011 decision and the
September 27, 2013 decision” of the Rhode Island Coastal Resources Management
Council (the CRMC). The effect of the Superior Court judgment is to deny
Champlin’s application, originally filed in 2003, to expand its marina on the Great
Salt Pond in the Town of New Shoreham.1
On December 15, 2020, Champlin’s sought from this Court an extension of
time to submit its statement required by Article I, Rule 12A of the Supreme Court
1
The Town of New Shoreham comprises the entire area of Block Island.
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Rules of Appellate Procedure, for the reason that it was engaged in mediation with
the CRMC. Shortly thereafter, on January 8, 2021, Champlin’s and the CRMC filed
a motion seeking to “incorporate and merge” a Joint Memorandum of Understanding
(the MOU) “into a consent order of this Court.” Under its terms, the MOU purports
to “serve as the CRMC’s Decision relative to this matter.”
The intervenors, the Town of New Shoreham (the town), the Committee for
the Great Salt Pond, the Block Island Land Trust, the Block Island Conservancy, and
the Conservation Law Foundation (collectively the intervenors), as well as the
Rhode Island Attorney General (the attorney general), contested the propriety of the
purported settlement and the validity of the MOU. We remanded the matter to the
Superior Court for findings of fact and conclusions of law concerning the “propriety
and conclusiveness” of the purported settlement and the validity of the MOU. On
remand, the Superior Court held several hearings and issued a written decision.
For the reasons set forth herein, we affirm the decision and resulting June 17,
2020 judgment of the Superior Court, and we deny the request by Champlin’s and
the CRMC to incorporate and merge the MOU into a consent order of the Supreme
Court.
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I
Facts and Travel
In a state that proudly calls itself the Ocean State, it is perhaps not surprising
that an application to expand a marina would generate intense public interest. Rhode
Island measures only forty-eight miles from north to south and thirty-seven miles
from east to west, yet it boasts 400 miles of shoreline. The fondness of Rhode
Islanders for the ocean is indeed visceral and is reflected in such activities as
swimming, fishing, sailing, surfing, motorboating, kayaking, quahogging, and
simply viewing its breathtaking beauty. The right to enjoy many such activities was
originally set forth in the Royal Charter of 1663 and is now enshrined in the state’s
constitution. R.I. Const., art. 1, § 17.
The obligation of protecting Rhode Island’s marine resources falls primarily
on the CRMC, as does the challenging task of balancing the myriad interests in and
to the tidal waters and adjacent upland areas. In light of the many competing
activities and the intense public interest which they generate, it is of the utmost
importance that the CRMC operate under a clear set of parameters. These
parameters are provided by the enabling statutes creating the CRMC (G.L. 1956
chapter 23 of title 46), its own rules and regulations, and the overarching framework
of the Administrative Procedures Act (the APA) (G.L. 1956 chapter 35 of title 42).
With these principles in mind, we embark upon our review.
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Champlin’s I
The travel of this case spans nearly two decades, and the facts concerning the
origin of the case and the first phases of the litigation can be found in this Court’s
opinion in the case of Champlin’s Realty Associates v. Tikoian, 989 A.2d 427 (R.I.
2010) (Champlin’s I). We refer the interested reader to that previous opinion for a
recitation of the facts and travel leading up to the issuance of that opinion, and we
confine ourselves herein to only those facts that are relevant to the present writs of
certiorari.
Champlin’s “operates a large marina on Block Island serving the needs of
boaters and their craft.”2 Champlin’s I, 989 A.2d at 431. In 2003, Champlin’s filed
an application with the CRMC to extend its existing marina 240 feet into the Great
Salt Pond, in order to accommodate 140 additional boats. Id. “The proposed
expansion included 2,990 feet of fixed pier and an additional 755 feet of floating
docks”; “[u]nder the proposal, the additional dockage would extend from the
existing marina.” Id. The intervenors formally opposed the application, thereby
making the proceeding a “contested case[]” under the CRMC Management
Procedures, to be heard by a “duly authorized and appointed [s]ubcommittee.” Id.2
At oral argument, counsel for Champlin’s indicated that Champlin’s had been sold
to new owners, but he maintained that the sale has no bearing on the issues before
this Court.
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On January 10, 2006, following twenty-three hearings, the CRMC
subcommittee “made forty-seven findings of fact and issued a recommendation with
three votes in favor of a scaled-down modification of the proposal” that would result
in a 170-foot expansion—rather than a 240-foot expansion—and one vote against.
Champlin’s I, 989 A.2d at 432, 433. Ultimately, five members of the full CRMC
voted to approve the subcommittee’s recommendation, and five members voted
against approval; the resulting tie vote constituted a rejection of the subcommittee’s
recommendation. Id. at 433.
Champlin’s thereafter filed an administrative appeal with the Superior Court
in accordance with the APA, § 42-35-15, seeking review of the CRMC’s decision
rejecting its application. Champlin’s I, 989 A.2d at 433. The trial justice made
extensive factual findings and credibility determinations regarding the testimony of
the witnesses during sixteen evidentiary hearings, a show-cause hearing regarding
this Court’s decision in Arnold v. Lebel, 941 A.2d 813 (R.I. 2007)—a case that
clarifies what ex parte communications are proscribed under the APA—and a
limited hearing as to the disqualification of subcommittee member Gerald P.
Zarrella. See Champlin’s I, 989 A.2d at 434-35.
Based on her findings, the trial justice held that (1) Champlin’s substantial
rights had been prejudiced by the subcommittee’s consideration of an
“off-the-record” “compromise plan” (the Goulet plan) promoted by then-CRMC
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chairman Michael Tikoian and subcommittee member Paul E. Lemont after the
subcommittee hearings were completed; (2) the CRMC’s decision was made upon
unlawful procedure and in excess of its statutory authority; and (3) Champlin’s
substantial rights had been violated when two of the council members—Tikoian and
Lemont—voted at the full council hearing despite what the trial justice viewed as
their demonstrated bias against the application. Champlin’s I, 989 A.2d at 435, 436,
438. The trial justice ultimately found that members Tikoian, Lemont, and Zarella
should not have taken part in the CRMC decision with respect to Champlin’s
application. Id. at 435.
The trial justice thereafter declined to remand the case to the CRMC for
further proceedings because, according to the justice, it would result in further delay
in Champlin’s efforts to obtain a decision on its application. Champlin’s I, 989 A.2d
at 436. Instead, in reliance on Acierno v. Folsom, 337 A.2d 309 (Del. 1975), the trial
justice “simply subtracted the votes of the three disqualified members from the five
to five tie vote rendered at the CRMC full council meeting.” Id. Accordingly, the
trial justice reconfigured the final vote of the full council to four-to-three in favor of
adopting the subcommittee recommendation, finding that such a determination was
“supported by the reliable, probative, and substantial evidence of record.” Id. at
436-37. On April 20, 2009, the CRMC, Tikoian, and the intervenors sought review
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of the Superior Court’s decision by petition for certiorari, which this Court granted.
Id. at 437.
In the resulting opinion in Champlin’s I, we first addressed Champlin’s
challenge to standing. Champlin’s I, 989 A.2d at 437. This Court held that, “[w]e
are of the opinion that Tikoian, the CRMC, and the intervenors are all aggrieved
parties within the statute and, therefore, properly are before this Court.” Id. at 438.
Specifically, the Court concluded that the intervenors had established that they were
aggrieved by a final judgment in accordance with § 42-35-16(a), noting that the
Superior Court’s “substitution of the CRMC decision with the subcommittee
recommendation left the intervenors with no avenue of review except through the
discretionary writ of certiorari.” Id.
This Court additionally held that the trial justice erred when she subtracted
the disqualified votes and elevated the subcommittee recommendation to a CRMC
decision. Champlin’s I, 989 A.2d at 442. Rather, the Court held that, in light of this
Court’s opinion in Arnold, the only appropriate remedy was to remand the matter to
the CRMC “for supplementation of the record with the ex parte communications to
be included to allow the parties to appropriately respond and cross-examine.” Id.Accordingly, the Court remanded the case to the Superior Court with instructions to
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remand the matter to the CRMC for further proceedings consistent with the opinion.3
Id. at 450.
Post-Champlin’s I Proceedings
The case was then remanded to the CRMC, and three hearings were conducted
between May and July 2010, followed by briefing by all parties. On January 11,
2011, the CRMC held a hearing and rendered a decision on Champlin’s application.
Seven members were present, and each member attested to having read “all of the
documents that have been engendered over the years of the deliberation of this
matter.” Counsel for the CRMC then reviewed the status of the CRMC’s previous
decision and summarized the charge to the members. Each of the seven CRMC
members present then offered specific comments on Champlin’s application.
In addition, the members offered comments on the location of “Mooring Field
E.” The town utilizes Mooring Field E for rental moorings for transient boaters; it
is located northeast of Champlin’s marina. In 1988, the United States Army Corps
of Engineers granted the town a permit to establish Mooring Field E with a capacity
of eighty moorings; in 1995, it approved the town’s application to expand Mooring
Field E to an area that surrounded the existing marina and to increase its mooring
3
We note that in Champlin’s Realty Associates v. Tikoian, 989 A.2d 427 (R.I. 2010)
(Champlin’s I), this Court addressed further issues beyond what we have discussed
herein; we address only those rulings that are relevant to our review relating to the
present writs of certiorari.
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capacity to one hundred. In 1991, the CRMC approved—and the town adopted—
the first Harbor Management Plan (the 1991 plan), which identified the rental
mooring field as Mooring Field E; its configuration reflected an “imperfect
triangular shape, with its southern border situated one hundred feet from the
outermost dock of Champlin’s Marina and a portion extending around the western
boundary of Champlin’s Marina, forming a so-called lobe.”
In 1999, the town submitted a new Harbor Management Plan to the CRMC
(the 1999 plan), which “did not alter or otherwise reconfigure Mooring Field E from
that which was plotted and approved in the 1991 [p]lan.” After it was submitted by
the town to the CRMC for review and approval, the 1999 plan was not reviewed
until 2003, when Champlin’s application at issue in these cases was filed. This was
“[b]ecause Champlin’s application, in part, sought to expand into the adjacent
Mooring Field E and/or to relocate certain rental moorings.” The CRMC therefore
consolidated the two matters—Champlin’s application and the town’s proposed
1999 plan.
On remand, the members unanimously voted to deny Champlin’s application
for a proposed expansion plan into the Great Salt Pond. The members also
unanimously voted to adopt the location of Mooring Field E so as to allow a 300-foot
fairway from Champlin’s existing structure to Mooring Field E, an increase from an
existing one-hundred-foot fairway, and to eliminate the lobe that was situated to the
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west of Champlin’s existing dock. The CRMC then issued a written decision on
May 6, 2011, containing ninety-one findings of fact and ten conclusions of law.
Champlin’s filed two complaints in Providence County Superior Court: (1) on
February 4, 2011, appealing the oral vote of the CRMC denying Champlin’s
application on January 11, 2011, and (2) on June 1, 2011, appealing that oral vote
and the CRMC’s May 6, 2011 written decision.4 Additionally, the town filed a
complaint against the CRMC in Washington County Superior Court on May 19,
2011, appealing the portion of the May 6, 2011 written decision of the CRMC
mandating that, “Mooring Field E must be drawn so as to allow a 300 foot-wide
navigational channel between the mooring field and Champlin’s marina as well as
the other existing marinas in the [Great Salt Pond].” The three cases were
consolidated by the Presiding Justice of the Superior Court, and venue was
designated as Washington County.5
In its memorandum before the Superior Court, Champlin’s compared the
CRMC’s treatment of Champlin’s expansion to that of its neighbor, Payne’s Dock,
alleging disparate treatment. The cases were then remanded “to the CRMC for a
4
The defendants named in Champlin’s Superior Court complaints are the members
of the CRMC in their official capacities; the CRMC; and the intervenors, namely:
the Town of New Shoreham, the Committee for the Great Salt Pond, the Block Island
Land Trust, the Block Island Conservancy, and the Conservation Law Foundation.
5
Upon transfer, Champlin’s two administrative appeals were assigned Washington
County case numbers; therefore, PC 11-661 became WC 11-615 and PC 11-3130
became WC 11-616.
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second time for the presentation of evidence into whether Champlin’s received
disparate treatment from the CRMC.” Four evidentiary hearings were held before
the CRMC on the matter; and, on September 27, 2013, the CRMC issued its written
decision comparing the two marinas and concluding that there was a rational basis
for the CRMC’s denial of Champlin’s application and the approval of Payne’s
Dock’s application.
While on remand, the CRMC additionally addressed and modified its May 6,
2011 decision concerning the configuration of Mooring Field E, noting a
discrepancy between the CRMC’s oral vote and the written decision. The CRMC
ordered that Mooring Field E “shall be situated 300 feet off of all three marinas
(Payne’s, Block Island Boat Basin, and Champlin’s) in order to provide for a
300-foot-wide fairway”; the town thereafter withdrew its Superior Court appeal.
The cases were thereafter returned to the Superior Court, and the parties filed
additional memoranda addressing the September 2013 CRMC decision.
A second trial justice ultimately issued a written decision on February 11,
2020, affirming “in all respects the May 6, 2011 decision and the September 27,
2013 decision of the CRMC.”6 The trial justice found that there was legally
sufficient evidence in the record to support both the CRMC’s denial of Champlin’s
6
We note that the trial justice filed a lengthy and meticulous decision approximately
six years after the parties filed their memoranda. The record contains no explanation
for the lapse of time, and we are troubled by the seemingly unwarranted delay.
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application to expand its marina and the CRMC’s determination that there were
significant differences in the applications filed by Champlin’s and Payne’s Dock.
The trial justice held that the CRMC had acted within its authority in denying
Champlin’s application and that the agency’s decision was “rational, logical, and
supported by substantial evidence.” The court concluded that “Champlin’s rights
have not been prejudiced by any constitutional violations, error of law, or arbitrary
or capricious conduct on the part of CRMC.”
Judgment entered in favor of the CRMC and the intervenors on June 17, 2020.
Proceedings on Certiorari in this Court
Champlin’s thereafter filed petitions for writs of certiorari on July 1, 2020,
which were opposed by the intervenors and the CRMC. The petitions were granted,
and the writs issued on October 19, 2020.
On January 8, 2021, Champlin’s and the CRMC filed a joint motion seeking
to “incorporate and merge” the MOU “into a consent order of this Court[,]” the MOU
having been arrived at by the two moving parties—Champlin’s and the CRMC—in
the context of a private mediation.7 The intervenors and the attorney general—the
latter official having moved successfully to intervene “for the sole and limited
7
The MOU is dated December 29, 2020. The proposed consent order document that
the movants seek to have entered has never been filed with this Court.
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purpose of opposing” the joint motion—filed memoranda in opposition to the joint
motion.
On March 26, 2021, this Court denied the joint motion and ordered
Champlin’s to file a statement pursuant to Article I, Rule 12A of the Supreme Court
Rules of Appellate Procedure within twenty days, which Champlin’s did.
On May 13, 2021, Champlin’s filed a motion for remand to the Superior
Court, to which the intervenors and the attorney general objected; on June 10, 2021,
the CRMC submitted a memorandum in support of Champlin’s motion for remand.
On June 11, 2021, this Court granted Champlin’s motion and remanded the matter
“to the Superior Court for findings of fact and conclusions of law concerning the
‘propriety and conclusiveness’ of the purported settlement and the validity of the
MOU.” The Court further ordered that the matter “be returned to this Court no later
than ninety (90) days from the date of this Order.”
The Remand Hearings in Superior Court
On remand, a third justice of the Superior Court (the remand justice) held
several evidentiary hearings to allow for findings of fact and conclusions of law. A
written decision was issued on September 9, 2021, wherein the remand justice stated
that he had
“established a three-phase procedure in order to gather the
necessary information to follow the Supreme Court’s
order. The first phase was for the proponents of the MOU
to present evidence about what happened surrounding the
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mediation and the execution of the MOU; the second
phase was for the opponents to present witnesses and
evidence questioning what happened; and the third phase
was for the proponents to present rebuttal evidence.”
The remand justice then set forth approximately forty-five pages of factual findings.
He began by reviewing the circumstances surrounding the ultimate formation of the
MOU, and he additionally summarized the testimony of the witnesses and assessed
their credibility. The remand justice then made conclusions of law regarding the
propriety and conclusiveness of the settlement between Champlin’s and the CRMC
and the validity of the MOU itself.
The remand justice began his analysis by addressing whether the CRMC had
the authority to mediate with Champlin’s. He noted the strong public policy in favor
of settlements and this Court’s support of mediation and alternative dispute
resolution. He further stated that, once an agency’s decision is challenged (by appeal
in the court system under the APA), the agency’s role changes from that of an
adjudicator to that of an advocate before the judiciary; he determined that the
“CRMC became a party to the appeal in the Superior Court” and that, therefore, the
“CRMC and Champlin’s, as two parties, could enter settlement discussions and
proceed to mediation.” Indeed, the remand justice found that the CRMC was not
precluded by state law or by its own regulations to resolve cases through mediation,
citing § 46-23-20 and 650 RICR 10-00-1.8(C). The remand justice was additionally
persuaded by the United States Supreme Court’s opinion in Local Number 93 v. City
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of Cleveland, 478 U.S. 501 (1986); the remand justice found that, under the
reasoning in that case, “the [i]ntervenors do not have the ability to block the mediated
settlement itself, but * * * the [i]ntervenors have the right to notice and an
opportunity to be heard before the MOU is ratified or adopted[.]”
The remand justice then addressed the issue of notice to the intervenors. He
found that, because mediation is “extra-judicial” and “very informal[,]” it does not
require formal notice. He then determined that “sufficient, actual notice was
given[,]” identifying the four ways in which he found that the intervenors had been
notified of the mediation.
Finally, the remand justice considered “whether entry of final judgment in
accord with the MOU is appropriate.” On that issue, he determined that, although
the intervenors “do not have the authority to block a mediated settlement[,]” a
“fairness hearing” should be held in accordance with Local Number 93, to give the
intervenors an “opportunity to present evidence and have their objections heard.”
On September 14, 2021, Champlin’s moved on an emergency basis for further
remand for a “fairness hearing,” which was supported by the CRMC; the intervenors
and the attorney general objected to the motion for further remand. The papers were
returned to this Court from the Superior Court on September 20, 2021. On October
15, 2021, we entered an order which (1) added the Superior Court record of the
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remand proceedings to the record previously certified by the Superior Court on
certiorari and (2) denied Champlin’s emergency motion for further remand.
II
Standard of Review
The APA, G.L. 1956 chapter 35 of title 42, governs the Superior Court’s
review of an administrative appeal. Section 42-35-15(g) of the APA sets forth that:
“The court shall not substitute its judgment for that of the
agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse
or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings,
inferences, conclusions, or decisions are:
“(1) In violation of constitutional or statutory provisions;
“(2) In excess of the statutory authority of the agency;
“(3) Made upon unlawful procedure;
“(4) Affected by other error of law;
“(5) Clearly erroneous in view of the reliable, probative,
and substantial evidence on the whole record; or
“(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of discretion.”
The APA also limits this Court’s review of the Superior Court’s judgment in
administrative proceedings. Section 42-35-16 (governing review by this Court of
judgments entered pursuant to § 42-35-15). “In conducting such a review, we are
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restricted to questions of law, which we review de novo.” Champlin’s I, 989 A.2d at437 (citing Rossi v. Employees’ Retirement System of Rhode Island, 895 A.2d 106,
110 (R.I. 2006)). “The factual findings of the administrative agency are entitled to
great deference.” Id. “However, when the review of the trial court’s decision is
conducted under a writ of certiorari, as it is here, ‘this Court applies the some or any
evidence test and reviews the record to determine whether legally competent
evidence exists to support the findings.’” Id. (brackets omitted) (quoting Sartor v.
Coastal Resources Management Council, 542 A.2d 1077, 1082-83 (R.I. 1988)).
III
Discussion
A
The 2020 Decision and Judgment
We begin our analysis by addressing the issues raised by Champlin’s
concerning the Superior Court’s 2020 judgment and the underlying decision of the
trial justice. Before this Court, Champlin’s submits that the trial justice committed
multiple errors and urges this Court to reverse her decision denying Champlin’s
appeal and affirming the CRMC’s decisions. In its brief, Champlin’s first asserts
that the subcommittee recommendation issued in January 2006 was not vacated by
this Court’s opinion in Champlin’s I and that the recommendation should have
“served as the starting point” for the hearings on remand. According to Champlin’s,
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this error was compounded by the trial justice, who allegedly failed to consider the
subcommittee recommendation and instead focused solely on the original
application by Champlin’s to the CRMC. Finally, Champlin’s faults the trial
justice’s handling of the water quality certificate issue, the mooring field issue, and
the issue of disparate treatment, all of which Champlin’s suggests warrant reversal.
We shall address these issues seriatim.
Subcommittee Recommendation
Champlin’s first takes issue with the procedure pursuant to which the CRMC
conducted its proceedings after this Court’s decision in Champlin’s I. It argues that
the procedure was “unlawful * * * in violation of § 46-23-20.4, clearly erroneous
and constituted an arbitrary, capricious abuse of discretion.” Most significantly,
Champlin’s faults the CRMC for rejecting the subcommittee recommendation,
ignoring the subcommittee’s findings, and disregarding this Court’s mandate to
“reopen the hearing on the Champlin’s application” and expand the record to include
the Goulet plan.
Champlin’s contends that it was “irrevocably prejudiced” by the following
statement by the CRMC’s counsel at the outset of the hearing on remand:
“I think the Supreme Court case law is very clear, that
when a matter is remanded to an agency with the hearing
of additional evidence * * * that that matter is then heard
de novo by the agency, and I stated that on previous
occasions. Additionally, I believe the Supreme Court
decision invalidated both the full Council decision and the
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subcommittee recommendation. So, that being said,
hearing the matter de novo, you are here to approve,
modify or deny the application filed by Champlin’s Realty
as well as the request of the Town of New Shoreham for
the location of Mooring Field E.”
According to Champlin’s, the decision in Champlin’s I did not invalidate the
subcommittee recommendation that a 170-foot expansion be allowed rather than the
240-foot expansion as contemplated in the original application. Rather, it provided
for an expanded record, which then “should have served as the starting point for
these hearings, with due consideration, for the Goulet plan[.]” As a result, the full
committee allegedly “ignored virtually all of the findings of the [s]ubcommittee”
and considered only the original application.
This error was exacerbated, Champlin’s maintains, by the CRMC’s failure to
comply with § 46-23-20.4(a), which provides:
“Subject to the provisions of this chapter, every hearing
for the adjudication of a violation or for a contested matter
shall be held before a hearing officer or a subcommittee.
The chief hearing officer shall assign a hearing officer to
each matter not assigned to a subcommittee. After due
consideration of the evidence and arguments, the hearing
officer shall make written proposed findings of fact and
proposed conclusions of law which shall be made public
when submitted to the council for review. The council
may, in its discretion, adopt, modify, or reject the findings
of fact and/or conclusions of law; provided, however, that
any modification or rejection of the proposed findings of
fact or conclusions of law shall be in writing and shall state
the rationales therefor.”
In her decision, the trial justice commented:
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“The clear mandate by the Supreme Court on remand to
the CRMC was to expand the record to include all
previously impermissible ex parte communications,
including the Goulet plan, allow cross-examination by any
party on such additional testimony or evidence, and render
a decision based upon the entire record—the
subcommittee and workshop records, supporting data,
supplementary material and, naturally, the records of all
proceedings before the full Council. * * * The CRMC did
just that.”
We agree.
In Champlin’s I, the Court returned the case to the Superior Court with
directions to remand the matter to the CRMC to reopen the hearings and expand the
record to include the Goulet plan and all supporting materials. Champlin’s I, 989
A.2d at 449, 450. The matter was to be heard by the then-members of the CRMC,
provided that each voting member certify that he or she had read the entire record.
Id. at 449. Clearly the mandate required the CRMC to consider Champlin’s
application in a de novo manner. See Hagopian v. Hagopian, 960 A.2d 250, 253
(R.I. 2008) (referring to the obligation of the lower court to implement the letter and
spirit of the mandate of the appellate court).
The Court also emphasized in Champlin’s I that “the subcommittee simply is
not authorized under the CRMC Management Procedures to render a decision for
the CRMC. The subcommittee recommendation remained just that, a mere
recommendation to the full council.” Champlin’s I, 989 A.2d at 448. However, the
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subcommittee findings and recommendation were a part of the record. As counsel
for the CRMC advised the members:
“[T]he members having read the entire record and having
the complete record before them, if any of the findings of
either the previous full Council’s decision or the
subcommittee recommendation still have vitality to them,
they are certainly free to adopt those as their own
findings.”
Based upon our review of the record, we are satisfied that the CRMC
appropriately implemented both the letter and spirit of this Court’s mandate in
Champlin’s I. As the Court observed, the record upon which the subcommittee
recommendation was based was not complete because the “impermissible ex parte
information” was not made available for the examination of the parties. Champlin’s
I, 989 A.2d at 449. We also find it significant that, at the full council hearing on
February 28, 2006, the CRMC failed to adopt the subcommittee recommendation in
a tie vote. Id. at 433. To be sure, two members of the CRMC voting thereon—one
voting in favor of adoption and one against—were subsequently disqualified because
of bias. Id. at 433, 435.8 Nevertheless, the “tie vote constituted a rejection of the
recommendation.” Id. at 433.
8
In Champlin’s I, this Court observed that the trial justice determined that three
members of the CRMC should have been disqualified due to bias. Champlin’s I, 989
A.2d at 435. The Court, however, held that the trial justice’s finding of bias as to
one of the members was not based on legally competent evidence. Id. at 447-48. As
a result, this Court held that only two of those three members had been properly
disqualified. Id. at 444.
- 21 -
Also, we discern no error in the CRMC’s failure to state its rationale for
rejecting the subcommittee’s findings of fact in writing as required by
§ 46-23-20.4(a). As noted supra, the subcommittee findings at issue were predicated
upon an incomplete record and were “reject[ed]” by a tie vote of the full CRMC.
Champlin’s I, 989 A.2d at 433. More significantly, the Court’s opinion in
Champlin’s I provided that:
“[T]his case should be returned to the Superior Court with
an order that that tribunal remand the matter to the CRMC.
That body should be ordered to expeditiously reopen the
hearing on the Champlin’s application. The record is to be
expanded to include the Goulet plan and all supporting
materials.” Id. at 449.
It is patently evident from that language that such proceedings were to
transpire before the full CRMC and not the subcommittee. Thus, it was not
necessary for the subcommittee to consider the new evidence and perhaps reassess
its recommendation. The remand further permitted all members of the CRMC to
vote on Champlin’s application, but only on the condition that each member “certify
that he or she has read the entire record before the council, including the transcripts
of the subcommittee hearings and workshop[.]” Champlin’s I, 989 A.2d at 449. In
accordance with the remand instructions, therefore, each voting member was aware
of the subcommittee’s findings and the underlying evidence, but the members were
not required to give deference to such findings.
- 22 -
Moreover, in accordance with the remand order, the CRMC rendered a
decision containing ninety-one findings of fact and ten conclusion of law that
comprehensively set forth its rationale for denying Champlin’s application.
Champlin’s repeatedly emphasizes that “the Superior Court’s examination of
the record was focused, almost exclusively on the original application[,]”
notwithstanding the fact that Champlin’s “specifically adopted the recommendation
of the subcommittee.” The record reveals, however, that the original application
was never withdrawn or amended. Indeed, the record suggests that agendas for the
CRMC meetings at which Champlin’s application was heard referred to the original
application.9
9
For example, at the January 11, 2011 CRMC meeting, the agenda item read as
follows:
“Application before the Full Council in accordance with
Remand Order from the Rhode Island Supreme and
Superior Courts and Continuance Order issued on
November 18, 2010:
“2003-05-155 CHAMPLIN’S REALTY ASSOCIATION --
Expansion of existing marina facility consisting of an
additional 2,990 linear feet of fixed pier, and 755 linear
feet of floating docks, with corresponding expansion of
existing marina perimeter limit (area) by approximately 4
acres, however, it should be noted that the requested
marina perimeter limit (‘MPL’) seeks approximately 13
acres. The stated increase in marina capacity is 140 boats.
Additionally, this matter was consolidated with the Town
of New Shoreham’s request for CRMC approval of its
Harbor Management Plan. The Harbor Management Plan
- 23 -
Water Quality Certificate
Champlin’s next ascribes error to the trial justice’s determination that the
water quality certificate issued by the Rhode Island Department of Environmental
Management (DEM) was not the controlling authority with respect to all issues
concerning water quality. It argues that “the trial justice overlooked the evidence
that it is the practice of CRMC to rely on the DEM water quality certificate and not
issue [its] own certificate[,]” a practice that, Champlin’s asserts, has been codified
in § 46-23-6(1)(iv):
“* * * all plans and programs shall be developed around
basic standards and criteria, including:
“* * *
“(D) Water quality standards set by the director of
[DEM].”
Under the Rhode Island Coastal Resources Management Program (CRMP),
CRMP § 300.1 sets forth eleven requirements that Champlin’s had to satisfy to
obtain a Category B Assent, one of which was to “demonstrate that there will be no
significant deterioration in the quality of the water in the immediate vicinity as
issues were limited to the location and size of Mooring
Field E. Project to be located at plat 19, lots 5 and 6; West
Shore Road, New Shoreham, RI.”
- 24 -
defined by DEM[.]” CRMP § 300.1(8).10 Other requirements, however, also
concern issues of water quality, such as:
“(5) demonstrate that the alteration or activity will not
result in significant impacts on the abundance and
diversity of plant and animal life[;]”
“* * *
“(7) demonstrate that the alteration will not result in
significant impacts to water circulation, flushing,
turbidity, and sedimentation[.]” CRMP § 300.1(5), (7).
When confronting this issue, the trial justice stated that “[t]he criteria that
Champlin’s is required to satisfy for a Category B assent includes several distinct
areas which all deal with water quality in different ways[.]” She further noted that
the CRMC’s decision addressed the interplay between a water quality certificate
issued by DEM and the CRMC’s approval process. The council emphasized in its
decision that the “CRMC’s review regarding water quality issues is independent and
broader than DEM’s review of water quality issues[,]” and that the issuance of a
DEM water quality certificate does not resolve all issues associated with water
quality.
10
In the CRMC’s May 6, 2011 decision, it is stated that “[t]he applicable provisions
of the Coastal Resources Management Program (‘CRMP’) are Sections 120, 200.3,
300.1, 300.4, and 335.” In the trial justice’s 2020 written decision, she also
confirmed that the CRMC’s May 6, 2011 decision identified, and the parties did not
dispute, that sections 200.3, 300.1, 300.4, and 335 of the CRMP were applicable.
- 25 -
In Milardo v. Coastal Resources Management Council of Rhode Island, 434
A.2d 266 (R.I. 1981), this Court stressed that very point; there, an applicant seeking
to build a summer home challenged the requirement that the plan for sewage disposal
had to be reviewed by two agencies—the Rhode Island Department of Health (DOH)
and the CRMC. Milardo, 434 A.2d at 267, 272. The Court emphasized that the
“Legislature could have assigned both functions to the same agency[, but] [i]n
choosing not to do so, the Legislature doubtless considered the need for special types
of expertise in the discharge of the separate but similar functions of both agencies.”
Id. at 273. Although DOH had conditionally approved the proposed sewage disposal
system, the CRMC denied the application; and this Court stated that “this result
derived from the distinct functions of these tribunals as was implicit in the [DOH’s]
requirement that [the applicant] present his [or her] plan to the council.” Id. at 267,
268, 273.
In New Castle Realty Company v. Dreczko, 248 A.3d 638 (R.I. 2021), the
Court grappled with a similar issue wherein the plaintiff, after receiving a DEM
permit to alter freshwater wetlands, filed an application with the municipal zoning
board for a special-use permit to install a septic system within one hundred feet of
wetlands and for a dimensional variance from requirements for house placement on
a parcel. New Castle Realty Company, 248 A.3d at 640-41. The zoning board denied
the application for both a special-use permit and a dimensional variance. Id. at 641.
- 26 -
The plaintiff appealed the zoning board’s denial, contending, inter alia, that the
standard to approve a special-use permit was ipso facto satisfied by DEM’s approval.
Id. However, the zoning board contended that DEM’s approval did not require the
zoning board to grant a special-use permit. Id. at 642.
In New Castle Realty Company, we explained that, “[w]hile both DEM and
zoning boards address public interest considerations, not every standard set forth in
the zoning ordinance is pertinent to what must be considered by DEM in granting or
denying a permit—DEM and zoning boards each serve separate functions.” New
Castle Realty Company, 248 A.3d at 644. We also held, however, that the zoning
board lacked the specialized knowledge necessary to refute DEM’s decisions; we
determined therefore that “an applicant for zoning relief ought to be able to rely on
permits granted by DEM with respect to those matters uniquely within DEM’s
expertise.” Id. at 645, 646.
Unlike in New Castle Realty Company, where DEM’s findings were not
expressly contradicted, in the case at bar the trial justice held that not only did CRMP
§ 300.1 provide for separate and distinct criteria that Champlin’s was required to
satisfy in addition to the water quality certificate issued by DEM, but also the CRMC
had found that the surveys offered by Champlin’s professional wetland scientist,
Scott Rabideau, were incomplete. The CRMC emphasized that Rabideau’s shellfish
survey did not include sampling points within the area of the proposed expansion
- 27 -
and also the “survey was conducted at a time of year when shellfish would not be
expected to be found,” thus requiring a follow-up survey. The trial justice noted that
the CRMC had faulted Champlin’s for “failing to conduct the follow up surveys that
Rabideau himself opined were necessary[.]” Specifically, the trial justice stated that
the water quality certificate issued by DEM “did not fill the void that was left when
he failed to complete the surveys as he said needed to be done to address the skewed
results based upon the time of the year that he had conducted his survey.”
The trial justice cited to other competent evidence, including the testimony of
a DEM witness that revealed the narrower focus of DEM’s review. Angelo Liberti,
who was, at that time, Chief of the Office of Water Resources within DEM, testified
that a water quality certificate focuses primarily on “complying to anti-degradation,”
which he described as looking at a change in water quality. Liberti further described
a model that analyzes the amount of fecal coliform existing in gray water vessel
discharge. The trial justice stated in her decision that “DEM’s analysis of the number
of vessels that will result in a permissible amount of fecal coliform is limited in scope
as compared to the CRMP, and specifically the eleven criteria for a Category B
assent.” For these reasons, we conclude that the trial justice did not err in upholding
the CRMC’s review of all the evidence and the agency’s ultimate determination with
respect to water quality that differed from the determination that had been made by
DEM.
- 28 -
Mooring Field E
Champlin’s additionally avers that the trial justice committed reversible error
in her findings concerning the impact of Champlin’s proposed expansion upon the
mooring field. In the context of explaining her conclusion that Champlin’s and
Payne’s Dock were not similarly situated, the trial justice made the following finding
of fact: “the evidence of record established that the [t]own would lose up to forty of
its rental moorings (from the currently approved one hundred rental moorings) if
Champlin’s expansion were granted.” She based this finding upon the testimony of
the CRMC staff engineer Kenneth Anderson before the subcommittee on February
17, 2005.
Champlin’s argues that this finding is “simply incorrect and result[s] from
[Anderson’s] hypothetical statement about fictitious moorings.” Anderson testified
that Mooring Field E consisted of seven acres and that, if Champlin’s application
were granted, three of those acres would be eliminated. He further stated that he had
seen “diagrams that presented [one hundred] moorings in the field” and that, by
eliminating those acres, he would “venture to guess [that forty], [thirty] to [forty]
moorings” would be lost.
In a 2013 hearing before the CRMC, Anderson clarified his earlier testimony:
“The estimate of the number of moorings lost was based
on the ratio of how much of the mooring field area was
being eliminated by the proposed expansion in the
fairway. They weren’t actual moorings. The [t]own had
- 29 -
the right to deploy moorings up to within [one hundred]
feet of the existing facility, but it did not -- I think your
testimony was that the moorings, the closest mooring ball
was some [three hundred] feet from Champlin’s dock.
That was by virtue of the fact that the [t]own didn’t
exercise its full right to deploy moorings up to within [one
hundred] feet of the existing marina. So, all of those
moorings that I summarized as being lost, some of them
were not actual moorings in the water. They were virtual
moorings or potential moorings that the [t]own would
have or had the right to install in the previous mooring
field.”
Champlin’s characterizes the finding that the town would lose approximately
forty moorings if Champlin’s were allowed to expand as arbitrary, capricious,
egregious, and clearly erroneous. The relevant findings of the CRMC with respect
to rental moorings are as follows:
“66. Mooring fields and marinas are equally high priority
uses in Type 3 waters. Mooring Field E and the Existing
Marina are in direct competition for use of the public trust
resources of the [Great Salt Pond].
“***
“70. The [e]xisting [m]arina cannot be expanded further
into the waters of the [Great Salt Pond] without
significantly affecting and impairing competing uses of
the [Great Salt Pond].
“***
“89. The application if approved would result in an
unacceptable impingement on other uses of the public of
the [Great Salt Pond] including the [t]own’s designated
mooring areas.
- 30 -
“90. The application if approved would facilitate only one
priority use of Type 3 waters, marinas, while unacceptably
restricting another priority use, mooring areas.”
In an appeal under the APA, the Superior Court is bound to give deference to
the factual findings of the agency unless such findings are clearly erroneous,
arbitrary, capricious, or affected by error of law. See § 42-35-15(g). Here, the trial
justice found “no error in the CRMC’s conclusion that Champlin’s proposed
expansion would negatively infringe upon the [t]own’s mooring areas.” A review
of the record reveals ample support for her conclusions.
When asked if any moorings would have to be removed if Champlin’s dock
was extended 240 feet seaward, former Harbormaster Steven Land responded,
“[a]bsolutely,” placing the number at a minimum of forty. Harbormaster Chris Willi
testified that more than twenty-three moorings would be lost with the proposed
expansion. And it is also worth noting Kenneth Anderson’s uncontradicted
testimony that approximately three of the seven acres of mooring field would be
eliminated.
Whether the moorings Anderson referenced were actual or virtual,
Champlin’s has not successfully refuted the assertion that its proposed expansion
could result in the space for forty moorings being no longer available to the town.
We are of the opinion that this constitutes legally competent evidence to support the
finding that Champlin’s “failed to sustain its burden of proving that its proposed
- 31 -
project will not unreasonably interfere with, impair, or significantly impact existing
public uses of, or result in significant conflicts with water-dependent uses and
activities in, the [Great Salt Pond].” See Champlin’s I, 989 A.2d at 437 (“[T]his
[C]ourt applies the ‘some’ or ‘any’ evidence test and reviews the record to determine
whether legally competent evidence exists to support the findings.”) (quoting Sartor,
542 A.2d at 1082-83).
Disparate Treatment
Shortly after the CRMC denied Champlin’s application, it granted an
expansion to Payne’s Dock, a neighboring marina that is a competitor of Champlin’s
in the Great Salt Pond. Champlin’s asserted that it was similarly situated to Payne’s
Dock and that it had received disparate treatment from the CRMC. Champlin’s then
moved in Superior Court to expand the record or, in the alternative, to have the
Superior Court take judicial notice of the CRMC’s decision on Payne’s Dock. The
trial justice treated Champlin’s motion as a request for presentation of additional
evidence under § 42-35-15(e) and issued an order granting the same. The trial justice
then issued a second order requiring the CRMC to accept additional evidence and to
consider whether Champlin’s and Payne’s Dock are similarly situated and whether
there was a rational basis for treating its expansion application differently.
Thereafter, the CRMC held four evidentiary hearings and issued a written
decision dated September 27, 2013. In its decision, the CRMC found that
- 32 -
Champlin’s and Payne’s Dock are similarly situated in the following ways: (1) both
are located in the Great Salt Pond in the same Type 3 water classification; (2) “[t]hey
are in close proximity to one another”; (3) “[t]hey serve the same markets and are
business competitors”; (4) “[o]n occasion, they both accommodate large vessels”;
(5) “[t]hey are both located proximate to a heavily utilized fairway”; and (6) “[t]hey
are both located proximate to the intersection of the fairway and associated
navigational channels.”
The CRMC also made findings as to how the two marinas are dissimilar:
(1) Champlin’s fuel pump is located at the end of the marina, whereas Payne’s
Dock’s fuel pump is along the side of the marina; (2) “Champlin’s maintains a
dinghy dock that provides public access between the shore and vessels moored in
the pond”; Payne’s Dock does not; (3) “Champlin’s is a much larger marina * * *,
occupying about three times the amount of acreage and servicing significantly more
vessels”; (4) Champlin’s dock configuration is not as efficient as Payne’s Dock’s,
resulting in fewer vessels being able to be docked within the area of the marina;
(5) “an extension into the pond by Champlin’s would have a greater impact on the
[t]own’s rental mooring field than an extension into the pond by Payne’s [Dock]”;
and (6) there is “a greater amount of vessel traffic and congestion near Champlin’s
than exists near Payne’s [Dock].”
- 33 -
Concerning the respective applications of the two marinas, the CRMC found:
(1) “[b]oth applications were subject to the same standards of review” set forth in
the CRMP; (2) “Champlin’s application was deemed a ‘significant’ expansion of an
existing marina[,]” and Payne’s Dock “was not deemed a ‘significant’ expansion”;
(3) Champlin’s was a contested case subject to extensive hearings before a
subcommittee, whereas Payne’s Dock’s application was not contested; (4) “[t]he
record reflects no evidence of disparate treatment, bias, procedural inequities, or
selective enforcement in the review and consideration of the two applications,
notwithstanding the disparate outcomes”; (5) “[w]ith regard to impacts on plant and
animal life in the Great Salt Pond: the record associated with the Champlin’s
application failed to demonstrate that the proposed project would not cause
significant impacts[,]” whereas “the record associated with the Payne’s [Dock]
application showed no evidence that the proposed project would cause significant
impacts”; and (6) Champlin’s application “failed to demonstrate that the proposed
project would not cause significant impacts” to navigation in the Great Salt Pond
and “Payne’s [Dock’s] application showed no evidence that the proposed project
would cause significant impacts.”
The CRMC concluded that:
“Based on the application of identical regulatory
standards, and based on the significant differences
regarding the size of the two marinas, the size of the
proposed extensions, the efficiencies of their
- 34 -
configurations, the amount of vessel traffic and congestion
that occurs near each facility, the impacts of the proposed
expansion on safe navigation within appropriately sized
fairways, and the impacts of the proposed expansions on
the [t]own’s mooring field, the Council finds that there is
a rational basis for the denial of the Champlin’s
application and the approval of the Payne’s [Dock]
application.”
As its final challenge to the Superior Court decision, Champlin’s asserts that
the trial justice “applied the wrong standard of review to the issue of disparate
treatment.” It further maintains that “[t]he question of disparate treatment is a mixed
question of law and fact” and that the trial justice erred “by declaring that in an
agency appeal she was required to ‘uphold the CRMC’s conclusions if they are
supported by legally competent evidence’ and that the court ‘may not substitute its
judgment for that of the CRMC even if this court might be inclined to view the
evidence differently and draw inferences different from the CRMC.’” Thus,
according to Champlin’s, she “erroneously concluded that the two marinas were not
similarly situated.”
On appeal, Champlin’s claims that it was treated arbitrarily by the CRMC and
disfavorably in comparison to Payne’s Dock. It ascribes fault to the trial justice for
not applying a de novo standard of review to the issue of disparate treatment.
Champlin’s further underscores the similarities between the two marinas and
asserts that the trial justice overlooked evidence that “200 feet plus cruise ships
regularly docked at Payne’s [Dock.]” What is more, it argues that a different
- 35 -
standard was applied to Champlin’s concerning the separation between the marinas
and the mooring field and the water quality certificate. In addition, it points out that
its application was referred to a subcommittee, whereas Payne’s Dock’s application
was not treated as a contested case, even though both applications faced similar
objections by “the exact same objectors.” Finally, Champlin’s argues that the trial
justice overlooked the inappropriate ex parte communications that plagued its own
application. See Champlin’s I, 989 A.2d at 440-50.
After carefully reviewing the record, we are satisfied that the trial justice
undertook the correct steps in analyzing the issue of disparate treatment, and we see
no error in the trial justice’s analysis. Citing to Mill Realty Associates v. Crowe, 841
A.2d 668 (R.I. 2004), the trial justice stated that it was Champlin’s burden “to
demonstrate that it [was] similarly situated to Payne’s Dock and that there was no
rational basis for the difference in treatment.” In Mill Realty Associates, we affirmed
a trial justice’s decision rejecting the petitioner’s claim of selective enforcement and
disparate treatment because the petitioner’s building permit application was not
similarly situated to other applications. Mill Realty Associates, 841 A.2d at 675.
Under this framework, and looking to the United States Supreme Court’s opinion in
Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the trial justice applied a
two-part test for a disparate treatment claim: (1) there is intentional and different
treatment from others similarly situated, and (2) there is no rational basis for
- 36 -
difference in treatment. Village of Willowbrook, 528 U.S. at 564; see also
Cordi-Allen v. Conlon, 494 F.3d 245, 251 (1st Cir. 2007) (“[P]laintiffs must show
an extremely high degree of similarity between themselves and the persons to whom
they compare themselves.” (quoting Clubside, Inc. v. Valentin, 468 F.3d 144, 159
(2d Cir. 2006))).
“A [trial] justice’s findings on mixed questions of law and fact are generally
entitled to the same deference as the justice’s findings of fact.” Morse v. Minardi,
208 A.3d 1151, 1155 (R.I. 2019) (quoting Cummings v. Shorey, 761 A.2d 680, 684
(R.I. 2000)). “But, when those mixed questions of law and fact impact constitutional
matters, we shall review the findings de novo.” Id. (deletion omitted) (quoting
Cummings, 761 A.2d at 684).
Champlin’s has advanced no argument counter to the trial justice’s
articulation of the law governing a disparate treatment claim. Rather, Champlin’s
appears to take issue with the CRMC’s factual findings and the trial justice’s
subsequent upholding of those findings. For these reasons, we review Champlin’s
claims only as they pertain to the trial justice’s findings of fact. See State v.
Florez, 138 A.3d 789, 798 n.10 (R.I. 2016) (“[A] litigant has an obligation to spell
out its arguments squarely and distinctly[.]” (quoting United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990))).
- 37 -
In her decision, the trial justice reviewed the CRMC’s factual findings,
concluding that the “two marinas are not similarly situated[.]” She highlighted that
Champlin’s is a larger facility, “covering almost three times the area that Payne’s
Dock occupies.” She noted that Champlin’s application “sought approval for an
additional 140 vessels, or between 56[ percent] and 62[ percent] more than its
authorized number of vessels[,]” whereas “Payne’s Dock only sought approval for
an additional fifteen vessels beyond the seventy presently approved, or
21[ percent].”11 The trial justice noted that Champlin’s “sought an additional four
acres of Type-3 waters in Great Salt Pond, while Payne’s Dock sought only an
additional 0.38 acres[,]” observing that “[i]t is abundantly clear that Champlin’s
Marina is a much bigger operation than Payne’s Dock, and the expansion proposed
by Champlin’s would increase its footprint exponentially as compared to that of
Payne’s Dock even with Payne’s Dock’s approved expansion.”
Referencing the testimony of various witnesses, the trial justice explained that
the location of the two marinas’ respective fuel docks contributes to greater
congestion in the area of Champlin’s fuel dock. She also cited to evidence in the
record concerning Champlin’s inefficient dock configuration and ultimately stated
11
Champlin’s references testimony of Harbormaster Land that, on at least one
occasion, Payne’s Dock accommodated up to 275 boats, “notwithstanding the
application which represented only [seventy]” vessels. Champlin’s also represents
that Payne’s Dock sought an additional eighty-five vessels, although it does not cite
to where specifically in the record this figure can be found.
- 38 -
that the evidence presented “establishes the differences in size, navigational impact
and congestion, and efficiencies in existing facilities as between the two expansion
applications.” For example, the trial justice noted Anderson’s testimony as it related
to Champlin’s “inefficient three-pronged, trident [dock] configuration,” which
differed from Payne’s Dock’s “simple, rectilinear design[.]” She further touched
upon the evidence suggesting that the two applications would have differing impacts
on animal and plant life. Regarding Champlin’s application, evidence by DEM
showed that there were “healthy and productive shellfish resources within the
proposed [Champlin’s] expansion area[.]” And the CRMC staff biologist testified
that there were “‘significant impacts’ anticipated to shellfish resources within the
affected area.”
Moreover, Champlin’s wetlands scientist had been unable to assuage the
CRMC; thus, according to the trial justice, the CRMC had “concluded that there
were unresolved issues relating to water quality.” On the other hand, a CRMC staff
biologist stated with respect to Payne’s Dock’s application that “[m]inimal impacts
are expected on fish, shellfish or wildlife from the proposed seaward expansion
which avoids impacts to coastal features and shallow water habitats.” Finally, the
trial justice remarked that “the evidence of record established that the [t]own would
lose up to forty of its rental moorings * * * if Champlin’s expansion were granted.
- 39 -
* * * By comparison, Payne’s Dock[’s] expansion resulted in the loss of only one of
the [t]own’s rental moorings.”
After determining that the CRMC’s conclusions were supported by legally
competent evidence, the trial justice found that the CRMC did not act arbitrarily or
capriciously in its treatment of Champlin’s “or that its conclusions and decisions
were otherwise erroneous in view of the reliable, probative, and substantial evidence
in the whole record.” She concluded, “[t]he evidence of record demonstrates that
Payne’s Dock, while similar in some respects to Champlin’s Marina, was dissimilar
in important respects which provide a rational basis for the CRMC to reach different
results on their respective applications.”
We are of the opinion that these findings by the trial justice are not clearly
erroneous; rather, the trial justice meticulously combed through the CRMC’s
findings and found that they were supported by substantial evidence in the record.
Accordingly, we conclude that the trial justice did not misconceive or overlook
material evidence, and we therefore uphold the 2020 decision and resulting judgment
of the Superior Court.
- 40 -
B
Mediation and the MOU
As discussed supra, following our grant of Champlin’s petitions for writs of
certiorari, Champlin’s and the CRMC engaged in private mediation that ultimately
resulted in the execution by those two parties of a Joint Memorandum of
Understanding. On January 8, 2021, Champlin’s and the CRMC filed a joint motion
seeking “to incorporate and merge the Memorandum of Understanding * * * into a
consent order of this Court.” The intervenors and the attorney general opposed that
motion, and we ultimately remanded the case to the Superior Court for findings of
fact and conclusions of law concerning the “‘propriety and conclusiveness’ of the
purported settlement and the validity of the MOU.”
The Superior Court justice on remand conducted an extensive hearing over
seven full days, during which thirteen witnesses testified. Subsequently, he made
numerous findings of fact, all of which, we are satisfied, are supported by evidence
in the record. Among those findings are the following.
On November 24, 2020, at a duly noticed meeting, the CRMC authorized its
executive director, acting chair, and legal counsel to engage in mediation with
Champlin’s. On November 30, 2020, CRMC legal counsel sent an email to the
solicitor for the Town of New Shoreham stating that the CRMC had “voted to
participate in mediation * * * on the condition that the Town of New Shoreham also
- 41 -
participate.” On December 3, 2020, the mediator called the town solicitor asking
about the mediation, and he also emailed the town solicitor in an attempt to enlist
the town in the mediation process. The town solicitor replied to both the mediator
and the CRMC indicating that the town council would discuss the matter on
December 7, 2020. The council did discuss the proposed mediation in executive
session on December 7 and voted not to participate. The town solicitor notified both
the CMRC and the mediator the following day.
Regrettably, the legal counsel for the intervenors had not been notified of the
proposed mediation. It is clear, however, that he was well aware of it and had in fact
argued against mediation at the town council meeting.
On December 15, 2020, Champlin’s moved in the Supreme Court for
additional time to file a statement of the case required by Rule 12A of the Supreme
Court Rules of Appellate Procedure because Champlin’s and the CRMC were
engaged in mediation. On December 29, 2020, the CRMC discussed the MOU in
executive session and then voted to ratify it in open session.
The remand justice thoroughly reviewed the testimony and credibility of each
of the thirteen witnesses. He then framed his analysis by addressing three issues:
(1) did the CRMC and Champlin’s have authority to mediate; (2) what notice is
required for mediation and was sufficient notice given; and (3) is the MOU a final
decision.
- 42 -
As the remand justice correctly recognized, this Court is a strong proponent
of alternative dispute resolution as a means of amicably settling cases. Most notably,
Rule 35 of the Supreme Court Rules of Appellate Procedure establishes an Appellate
Mediation Program, the purpose of which “is to afford a meaningful opportunity to
the parties in all eligible civil appeals to achieve a resolution of their dispute in a
timely manner as early in the appellate process as feasible[.]” Not infrequently, we
have encouraged parties to mediate even after oral argument and offered the services
of our Appellate Mediation Program to assist in that endeavor. So too, have we often
exhorted parties to engage in meaningful settlement negotiations. See Ryan v. Roman
Catholic Bishop of Providence, 941 A.2d 174, 186 (R.I. 2008) (“It is very much an
important part of the policy of the courts of Rhode Island (and courts in general) to
encourage the amicable settlement of disputes, whether by mediation or
otherwise.”); Skaling v. Aetna Insurance Company, 799 A.2d 997, 1012 (R.I. 2002)
(“It is the policy of this state to encourage the settlement of controversies in lieu of
litigation.”); Calise v. Hidden Valley Condominium Association, Inc., 773 A.2d 834,
839 (R.I. 2001) (“Our policy is always to encourage settlement. Voluntary
settlement of disputes has long been favored by the courts.” (quoting Homar, Inc. v.
North Farm Associates, 445 A.2d 288, 290 (R.I. 1982))).
The threshold issue before this Court with respect to the MOU is whether
Champlin’s and the CRMC had the authority to mediate. This Court, in the context
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of the cases currently before the Court on certiorari, is presented with a purported
settlement agreement resulting from mediation between the CRMC and Champlin’s
that took place after the CRMC had already issued a final decision on Champlin’s
application and while the cases were pending before this Court.
The intervenors assert that the CRMC did not have authority to mediate with
Champlin’s because the matter was undergoing judicial review and had been
transmitted from the CRMC to the Superior Court and then docketed in this Court
on certiorari; therefore, the intervenors submit, the CRMC lacked the power “to add
or subtract from the record, or alter or amend its findings and conclusions, while the
final order is on appeal.”
The attorney general, also an intervenor, argues that both the CRMC
regulations and the APA “preclude settlement on appeal where the council has
denied an application” and that the remand justice erred in finding that the MOU
was a proper exercise of the CRMC’s authority. The attorney general additionally
takes issue with the remand justice’s finding that the role of an administrative agency
changes when the agency’s decision is contested; instead, the attorney general
contends that an administrative agency is not similarly situated to a private or public
litigant in a civil lawsuit, and therefore cannot engage in litigation “in whatever
manner it deems fit.”
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In response, Champlin’s and the CRMC both assert that they had the authority
to mediate. They contend that the remand justice did not err in determining that the
role of an administrative agency changes after a final decision of the agency is issued
and an appeal has been taken from that final decision. The CRMC additionally
submits that the remand justice was correct in determining that § 46-23-20 gives the
CRMC the authority to participate in mediation.
We begin our analysis by addressing the remand justice’s determination that
“[t]he role of [an] administrative agency changes after the final agency decision is
issued”—“from that of [a] quasi-judicial authority to that of [an] advocate for the
agency ruling[.]” Based on an application of that reasoning, the remand justice
found that the CRMC was “subject to the same rules as other litigants” and that,
therefore, the “CRMC and Champlin’s, as two parties, could enter settlement
discussions and proceed to mediation.” He further found that the “CRMC was not
acting as an agency or as an adjudicator when it participated in the mediation.”
This Court has said that “[t]he scope of review of this [C]ourt, like that of the
Superior Court, is an extension of the administrative process.” Environmental
Scientific Corporation v. Durfee, 621 A.2d 200, 208 (R.I. 1993) (emphasis added);
see generally § 42-35-15 (APA section governing “Judicial review of contested
cases”); § 42-35-16 (APA section governing “Review by supreme court”).
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Additionally, we have made clear that an administrative agency is not a normal
litigant:
“[A] governmental official, agency, commission, or board
[is] charged with the responsibility of administering a
particular set of rules and regulations designed to promote
the public safety and welfare acts for the people and, as
such, must be permitted to represent the people when a
matter of public interest is involved.” Newman-Crosby
Steel, Inc. v. Fascio, 423 A.2d 1162, 1165 (R.I. 1980)
(emphasis added).
In its enabling legislation, the General Assembly directed the CRMC “to
exercise effectively its responsibilities in the coastal zone through the development
and implementation of management programs to achieve wise use of the land and
water resources of the coastal zone.” Section 46-23-1(b)(1). That section also
provides:
“Furthermore, that implementation of these policies [to
preserve, protect, develop, and, where possible, restore the
coastal resources of the state] is necessary in order to
secure the rights of the people of Rhode Island to the use
and enjoyment of the natural resources of the state with
due regard for the preservation of their values, and in order
to allow the general assembly to fulfill its duty to provide
for the conservation of the air, land, water, plant, animal,
mineral, and other natural resources of the state, and to
adopt all means necessary and proper by law to protect the
natural environment of the people of the state by providing
adequate resource planning for the control and regulation
of the use of the natural resources of the state and for the
preservation, regeneration, and restoration of the natural
environment of the state.” Section 46-23-1(b)(2)
(emphasis added).
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Neither the remand justice, the CRMC, nor Champlin’s cite to any caselaw or
statutory law that supports the notion that the CRMC’s responsibilities to the public
end at the point a contested agency decision results in litigation before our court
system.
The remand justice was correct in stating that, on appeal, an administrative
agency is “an advocate for the agency ruling.” However, we find no support in our
jurisprudence for the proposition that an administrative agency can, under any
circumstance, act not as an agency but merely as a litigant. An administrative
agency’s statutory and regulatory responsibilities do not end when its final decision
is appealed; rather, an agency’s advocacy on appeal is in furtherance of the
administrative process. See Environmental Scientific Corporation, 621 A.2d at 208.
The CRMC therefore continues to be bound by the APA, its enabling legislation,
and its regulations—the CRMC’s duty to the people of Rhode Island does not end
when it becomes a party to litigation that involves the propriety of one of its
decisions.
We turn next to the issue of whether the CRMC had the authority to engage
in mediation. The remand justice found explicit statutory authority for the CRMC
“to mediate or otherwise resolve contested cases” in § 46-23-20, which provides:
“All contested cases, all contested enforcement
proceedings, and all contested administrative fines shall be
heard by the administrative hearing officers, or by
subcommittees as provided in § 46-23-20.1, pursuant to
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the regulations promulgated by the council; provided,
however, that no proceeding and hearing prior to the
appointment of the hearing officers shall be subject to the
provisions of this section. Notwithstanding the foregoing,
the commissioner of coastal resources management shall
be authorized, in his or her discretion, to resolve contested
licensing and enforcement proceedings through informal
disposition pursuant to regulations promulgated by the
council.”
He then looked to the CRMC regulations, specifically 650 RICR 10-00-1.8, which
states:
“C. Modification of Assents and Final Decisions
“1. At any time prior to the expiration of an Assent,
the full Council by majority vote may, based
upon the evidence presented to it, modify an
Assent. The City or Town Clerk and the local
building official in the community shall be
notified of the modification.
“2. The Council authorizes the Executive Director in
his discretion to modify an Assent or final
decision of the Council when the requested
modification is consistent with the prior approval
of the Council and the applicant and staff review
have clearly demonstrated to the Executive
Director’s satisfaction that the project’s overall
impact to the State’s coastal resources will be less
than or equal to the existing Assent or decision.”
The trial justice indicated that “[a]lthough no assent ever issued here, the statute and
regulation demonstrate that settlement is favored. Of course, there was no clear
authority provided to this Court to suggest that mediation is prohibited.”
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The APA states, as a general rule, that, “[u]nless precluded by law, informal
disposition may be made of any contested case by stipulation, agreed settlement,
consent order, or default.” Section 42-35-9(d). Pursuant to § 46-23-20, however,
“the commissioner of [the CRMC is] authorized, in his or her discretion, to resolve
contested licensing and enforcement proceedings through informal disposition
pursuant to regulations promulgated by the council.” (Emphasis added.)
The issue before us is therefore governed not by § 42-35-9(d) but rather by
§ 46-23-20 and, more specifically, the CRMC’s regulations. See City of Woonsocket
v. RISE Prep Mayoral Academy, 251 A.3d 495, 501 (R.I. 2021) (noting that “it is a
‘general rule of statutory construction that when a statute of general application
conflicts with a statute that specifically deals with a special subject matter, and when
the two statutes cannot be construed harmoniously together, the special statute
prevails over the statute of general application’” (deletion omitted) (quoting
Whitehouse v. Moran, 808 A.2d 626, 629-30 (R.I. 2002))). The CRMC “is bound,
of course, by its own regulations.” Town of Burrillville v. Pascoag Apartment
Associates, LLC, 950 A.2d 435, 451 (R.I. 2008) (quoting Arnold, 941 A.2d at 821
n.2); see also Ratcliffe v. Coastal Resources Management Counsel, 584 A.2d 1107,
1110 (R.I. 1991). “It is a ‘simple but fundamental rule of administrative law’ that
an ‘agency must set forth clearly the grounds on which it acted.’” Town of
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Burrillville, 950 A.2d at 451 (quoting Atchison, Topeka & Santa Fe Railway Co. v.
Wichita Board of Trade, 412 U.S. 800, 807 (1973)).
In the case at bar, this Court is presented with a purported settlement
agreement resulting from mediation between the CRMC, a state agency, and
Champlin’s, an applicant, that took place after the CRMC had already issued a final
decision on Champlin’s application.
The MOU, in effect, modifies the CRMC’s May 6, 2011 final decision. The
CRMC denied Champlin’s application in its decision; it has now mediated with
Champlin’s and agreed to what appears to be a modification of Champlin’s
application.
Our review of the CRMC’s regulations reveals only one avenue for the CRMC
to modify a final decision:
“The Council authorizes the Executive Director in his
discretion to modify an Assent or final decision of the
Council when the requested modification is consistent
with the prior approval of the Council and the applicant
and staff review have clearly demonstrated to the
Executive Director’s satisfaction that the project’s overall
impact to the State’s coastal resources will be less than or
equal to the existing Assent or decision.” 650 RICR
10-00-1.8(C)(2).
When interpreting a regulation, we employ the same rules of construction that we
apply when interpreting a statute. See Murphy v. Zoning Board of Review of Town
of South Kingstown, 959 A.2d 535, 541 (R.I. 2008) (“The construction of a
- 50 -
regulation is a question of law to be determined by the court. The principles or rules
of statutory construction apply to administrative regulations.” (quoting 2 Am. Jur.
2d Administrative Law § 245 at 221 (2004))). Thus, “[i]f the [regulation] is clear
and unambiguous, we must enforce it as written by giving the words of the
[regulation] their plain and ordinary meaning.” Id. (quoting Ruggiero v. City of
Providence, 893 A.2d 235, 237 (R.I. 2006)).
A plain reading of 650 RICR 10-00-1.8(C)(2) indicates that, in order to
modify a final decision, the CRMC must have granted the application and issued an
“assent.” 650 RICR 10-00-1.8(C)(2). In the case at bar, Champlin’s application was
denied by the CRMC in the final decision dated May 6, 2011. Because Champlin’s
application was denied, pursuant to 650 RICR 10-00-1.8(C)(2), the CRMC did not
have the authority to modify the final decision. Although the remand justice was
correct in indicating that “there was no clear authority * * * to suggest that mediation
is prohibited[,]” the plain language of 650 RICR 10-00-1.8(C)(2) requires that an
application be granted in order for a final decision or assent to be modified. See
Murphy, 959 A.2d at 541.
Certainly, “[a]dministrative agencies retain broad enforcement discretion and,
as always, considerable deference is accorded to such agencies about how to enforce
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regulations[,]” Arnold, 941 A.2d at 820-21; however, here, no such applicable
regulation exists.12
We additionally do not find any regulation permitting a post-final-decision
settlement to be discussed in an executive session and then approved in an open
session. Indeed, the CRMC’s regulations appear to favor the opposite:
“The Council finds that an open, traceable
decision-making process is essential for an effective
coastal management program, and where required should
be done in an open transparent public forum. The Council
will therefore follow the procedures set forth in the Coastal
Resources Management Program, including applicable
Special Area Management Plans, for all permit
applications which, by regulation come before it.” 650
RICR 20-00-1.5(A)(4) (emphasis added).
We are also of the conviction that the MOU falters for a more fundamental
reason. Under its terms, the MOU “shall serve as the CRMC’s [d]ecision relative to
this matter.” Indeed, the MOU contemplates the issuance by the CRMC of an
Assent, which Assent shall “flow” from the MOU and be “subject to the terms” of
12
We note that Champlin’s reliance on Town of Richmond v. Rhode Island
Department of Environmental Management, 941 A.2d 151 (R.I. 2008), is misplaced.
In that case, this Court indicated that § 11(f) of the Department of Environmental
Management Rules and Regulations for Assessment of Administrative Penalties
“explicitly provide[d] that ‘nothing herein shall preclude the Director from resolving
the outstanding penalty through a Consent Agreement at any time he or she deems
appropriate.’” Town of Richmond, 941 A.2d at 157 (emphasis added) (brackets
omitted). The only analogous rule in the CRMC’s regulations concerns applications
for freshwater wetlands permits exclusively. See 650 RICR 20-00-9.15.4 (the
CRMC’s rule concerning consent agreements with regard to freshwater wetlands
permits).
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the MOU. We are satisfied, therefore, that the MOU is intended to constitute the
final decision on Champlin’s application, and as such, it fails to comport with the
CRMC’s regulations and the APA in that it is devoid of any findings of fact with
respect to the requirements that applicants must satisfy under CRMP § 300.1. See
§ 42-35-12 (“Any final order shall include findings of fact and conclusions of law,
separately stated.”).
This is particularly disconcerting in light of the factual findings that the
CRMC did make in its May 6, 2011 decision, several of which indicated that
Champlin’s had failed to meet its burden with respect to the regulatory requirements.
“An administrative decision that fails to include findings of fact required by statute
cannot be upheld.” Sakonnet Rogers, Inc. v. Coastal Resources Management
Council, 536 A.2d 893, 896 (R.I. 1988).
We therefore hold that the remand justice erred in determining that the CRMC
and Champlin’s had authority to mediate. Accordingly, we decline to incorporate
and merge the MOU into a consent order of this Court.13
13
Because we have determined that the CRMC did not have the authority to mediate
with Champlin’s, we need not reach the additional issues raised by the intervenors
and the attorney general with respect to the propriety of the MOU and the remand
justice’s decision with respect to the same.
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IV
Conclusion
For the reasons set forth herein, we affirm the decision and resulting June 17,
2020 judgment of the Superior Court; and we deny the request by Champlin’s and
the CRMC to incorporate and merge the MOU into a consent order of the Supreme
Court. The record may be returned to the Superior Court with our decision endorsed
thereon.
Justice Goldberg did not participate.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Champlin’s Realty Associates v. Coastal Resources
Title of Case
Management Council et al.
No. 2020-168-M.P.
(WC 11-615)
Case Number
No. 2020-169-M.P.
(WC 11-616)
Date Opinion Filed October 14, 2022
Justices Suttell, C.J., Robinson, Lynch Prata, and Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Washington County Superior Court
Associate Justice Kristin E. Rodgers
Judicial Officer from Lower Court
Associate Justice Jeffrey A. Lanphear
For Plaintiff:
Robert D. Goldberg, Esq.
For Defendants:
Attorney(s) on Appeal
Anthony DeSisto, Esq.
R. Daniel Prentiss, Esq.
Sara Rice, Department of Attorney General
SU-CMS-02A (revised June 2020)