Champlin's Realty Associates v. Tikoian, C.A. No. PC 06-1659 (R.I. Super 2/23/2009), C.A. No. PC 06-1659.

Decision Date23 February 2009
Docket NumberC.A. No. PC 06-1659.,Consolidated C.A. No. PC 06-3900.
PartiesCHAMPLIN'S REALTY ASSOCIATES v. MICHAEL TIKOIAN, Individually and in his capacity as chairperson of the Coastal Resources Management Council, DAVID ABEDON, Individually and in his capacity as a member of the Coastal Resources Management Council, PAUL E. LEMONT, JERRY SAHAGIAN, RAYMOND COIA, NEILL GRAY, N. JOSEPH SHEKARCHI, THOMAS RICCI, GERALD P. ZARRELLA, and MICHAEL SULLIVAN, in their Capacities as members of the Coastal Resources Management Council, COASTAL RESOURCES MANAGEMENT COUNCIL OF THE STATE OF RHODE ISLAND, THE TOWN OF NEW SHOREHAM, STATE OF RHODE ISLAND, THE BLOCK ISLAND LAND TRUST, THE CONSERVATION LAW FOUNDATION, THE COMMITTEE FOR THE GREAT SALT POND, and THE BLOCK ISLAND CONSERVANCY, INC. TOWN OF NEW SHOREHAM v. THE COASTAL RESOURCES MANAGEMENT COUNCIL OF THE STATE OF RHODE ISLAND
CourtSuperior Court of Rhode Island

VOGEL, J.

"Fairness is what justice really is."

Justice Potter Stewart1

These consolidated administrative appeals are before the Court for decisions. Champlin's Realty Associates ("Champlin's," "Applicant," or "Plaintiff") brings the appeal in PC-06-1659 challenging the denial of its application to Coastal Resources Management Council ("CRMC") to expand its marina.2 Champlin's, a Rhode Island corporation, operates a marina in the Great Salt Pond in New Shoreham, Rhode Island ("New Shoreham" or "Town"). CRMC was created under Chapter 23, Title 46 of the General Laws of Rhode Island to serve as lead agency for the planning and management of the state's coastal regions. Plaintiff brings its complaint against the members of CRMC,3 the Town, as well as those who intervened before the administrative agency to oppose the application, the Block Island Land Trust, the Conservation Law Foundation, the Committee for the Great Salt Pond, and the Block Island Conservancy.

Champlin's claims that the decision of CRMC, denying its application, was made upon unlawful procedure; in violation of constitutional or statutory procedure; in excess of the statutory authority of the agency; affected by other error of law; clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; and arbitrary, capricious and characterized by abuse of discretion or clearly unwarranted exercise of discretion, all of which affected the substantial rights of the Plaintiff.

The Rhode Island Administrative Procedures Act ("RIAPA"), G.L. 1956 § 42—35—15, confers jurisdiction on this Court as to Champlin's appeal. Although administrative appeals are generally determined solely on the record, the Court granted Champlin's request to present evidence of alleged irregularities in the procedure before the agency not shown in the record. See Section 42-35-15(f). Also, while the matter was pending in this Court, the Rhode Island Supreme Court issued two decisions in other cases that impact on the issues in the instant matter. See Arnold v. Lebel, 941 A.2d 813 (R.I. 2007); In re Request for Advisory Opinion from the House of Representatives (Coastal Resources Management Council), 961 A.2d 930 (R.I. 2008).

The Town of New Shoreham brings an administrative appeal in PC-06-3900 from the failure of CRMC to approve the Harbor Management Plan New Shoreham initially submitted to the Town Council in 1999 and re-submitted as amended in 2003. The Court finds that the Town's reliance on § 42-35-15 is misplaced. Whereas, the Town has standing to oppose Champlin's appeal and would have had standing to bring an administrative appeal as an aggrieved party had CRMC granted Champlin's application, the Town has no standing to bring an appeal under § 42-35-15 for the failure of CRMC to act on its request for approval of their Harbor Management Plan. The mere fact that CRMC consolidated the Town's request with its consideration of Champlin's application does not confer jurisdiction on this Court to review the matter under the RIAPA. Although the parties stipulated to consolidate these appeals, the Court finds that the Town's appeal is not properly before the Court. Accordingly, the Court dismisses the appeal without prejudice.

For the reasons stated below, the Court grants Champlin's appeal and dismisses the appeal of the Town. The Court reverses the decisions of CRMC, denying Plaintiff's motion to disqualify CRMC chairperson Tikoian and rejecting the recommendation of the CRMC Subcommittee. Champlin's application shall be granted with this Court's affirming of the decision of the members in support of the Subcommittee Recommendation ("Findings of Fact of CRMC Members in Support of the Subcommittee Recommendation").

I

Town of New Shoreham's Appeal, PC 06-3900

A Facts and Travel

The Town of New Shoreham began operating rental moorings in the Great Salt Pond in 1983. On January 7, 1991, the Town Council approved a Harbor Management Plan ("1991 plan") developed by the Town. (Town Exhibit Y at 1.) In accordance with CRMC Guidelines for the Development of Municipal Harbor Management Plans4 ("Guidelines"), the Town Solicitor was required to certify that the 1991 plan, once approved, was consistent with the Costal Resources Management Program5 ("CRMP") and forward the plan to the CRMC staff for a consistency review. See Section (IV)(A) of Guidelines. CRMC approved the plan, with additional requirements, for a period of five years on March 12, 1991, and returned it to the Town Council to approve the plan as modified. (Town Exhibit Y at 6.) The Town Council gave final approval of the modified plan on December 12, 1991. (Town Exhibit Y at cover.)

Mooring Field E was one of the mooring fields contained in the 1991 plan. (See Town Ex. Y at App. C.) In order to comply with the configuration called for in the 1991 plan, the Town had to reconfigure Mooring Field E. See id. To accomplish this, the Town obtained a permit from the United States Army Corps of Engineers ("ACOE") in 1993. (See CRMC Ex. 2-11-1.) Concurrent with the ACOE approval to reconfigure the mooring field, the ACOE also approved an expansion in the number of moorings to one hundred. Id. The 1993 ACOE permit remains in effect to this day. Id.

Five years lapsed from CRMC's approval of the 1991 plan. In 1999, the Town Council adopted a new Harbor Management Plan ("1999 plan") and submitted it to CRMC for consistency approval. (Town Ex. W at 4.) Despite receiving the plan in 1999, CRMC staff did not review it until 2003. (Subcomm. Hr'g. Tr. at 2123.) As a result of the 2003 review of the 1999 plan, CRMC staff suggested a number of changes to the 1999 plan to bring it into compliance with the CRMP. (Subcomm. Hr'g. Tr. at 2135; Town Ex. W at 5.)

Before adopting the suggested changes, on October 10, 2003, while Champlin's application to expand its marina was pending before CRMC, the Town petitioned the agency for a one-year interim approval of the 1999 plan. (Town Ex. W at 1-2.) At its meeting on November 7, 2003, CRMC consolidated its review of Champlin's application with its consideration of the Town's request for approval of its 1999 plan, a decision on which might impact its ruling on the application to expand the marina. (Subcomm. Hr'g. Tr. at 2136-37.)

On November 19, 2003, the Town Council formally adopted the changes recommended by the CRMC staff review, and the Town resubmitted the plan ("2003 plan") to CRMC for further review. On November 21, 2003, CRMC staff, having concluded that the plan was substantially, although not totally, compliant with the CRMP, recommended approval of the 2003 plan on a one-year interim basis so the Town could resolve a number of remaining deficiencies in its application. (Subcomm. Hr'g. Tr. at 2136-37.)

Despite the staff recommendation in favor of the 2003 plan, when the full Council took up the matter at its November 25, 2003 meeting, CRMC approved, on an interim basis, the 1999 plan, rather than the modified 2003 version. Id. However, CRMC did not address the entire 1999 plan and failed to approve the submission as it related to Mooring Field E. The approval was silent as to this mooring field. Id.

Following the November 2003 interim approval, in part, of the 1999 plan, the Town has addressed the deficiencies identified in its 2003 plan and petitioned CRMC for full final approval of the 2003 plan, including Mooring Field E. (Subcomm. Hr'g. Tr. at 2137.)

Based on this procedural history, the Subcommittee Recommendation found that:

44. Regarding the validity of the Towns HMP, CRMP Section 300.15 requires that all municipalities proposing to adopt harbor rules, regulations, or programs shall apply to the Council for a determination of consisitency with the Coastal Resources Management Program.

45. Until such time as a comprehensive harbor management (sic) is prepared and approved by the CRMC, all activities regulated throughout the CRMP, or taking placed (sic) below the MHW mark, must come before the CRMC for review and approval in accordance with the program.

46. The Town's Harbor Management Plan, which was approved in 1991, expired in 1996. The Town did not reapply for a renewal of that plan until at least sometime in 1999. The CRMC does not recognize the validity of the subsequent plan until it is approved by the CRMC." (Subcomm. F.F. 44, 45, 46 at 5, 6.)

The decision of the five members of the full Council, who voted against the Subcommittee Recommendation, reports the same findings in paragraphs 78, 79, and 80, except in paragraph 80, after noting that "The CRMC does not recognize the validity of the subsequent plan until it is approved by the CRMC," the Council continued to find that "However, those CRMC members opposed to the subcommittee recommendation find that the appropriate location and delineation of mooring field E should be that as approved and documented in the 1993 ACOE permit." (Full Council Decision ¶ 80 at 11.) The Court notes that the location and delineation of Mooring Field E, as approved...

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