Troiano v. R.I. Coastal Res. Mgmt. Council

• Decision Date: 19 April 2022
• Docket Number: C. A. PC-2018-2792
• Parties: EDWARD TROIANO, Plaintiff, v. RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL, Defendant.
• Court: Rhode Island Superior Court

EDWARD TROIANO, Plaintiff, v. RHODE ISLAND COASTAL RESOURCES MANAGEMENT COUNCIL, Defendant.

C. A. No. PC-2018-2792

Superior Court of Rhode Island, Providence

April 19, 2022

For Plaintiff: Edward Troiano, pro se

For Defendant: Peter F. Skwirz, Esq.

DECISION

KEOUGH, J.

In this administrative appeal, Plaintiff Edward Troiano (Plaintiff) seeks judicial review of a final decision of the Rhode Island Coastal Resources Management Council (CRMC or Council). The decision effectively denied his application to maintain an oyster aquaculture lease site. This Court exercises jurisdiction pursuant to the Administrative Procedures Act (APA), G.L. 1956 chapter 35 of Title 42.

I Facts and Travel

On May 2, 2017, Plaintiff submitted an application to the CRMC to create and maintain a half-acre aquaculture lease site (oyster farm) in upper Narragansett Bay, specifically the Nyatt Point section of Barrington, Rhode Island. (Pl.'s Ex. C, Lease Site Application, at 1-2.) Plaintiff had received support previously for the proposed oyster farm from the Town of Barrington at a March 15, 2017 preliminary determination hearing. (Pl.'s Ex. B, Preliminary Determination Meeting Report, Apr. 26, 2017). Both the CRMC and the Rhode Island Department of Environmental Management Division of Fish and Wildlife (DEM) staff participated in the hearing and expressed no concerns relative to the proposed farm's impact on fish resources or wildlife, but noted that the commercial shellfishing industry may have an objection. Id. at 3. On November 9, 2017, Plaintiff supplemented his application with photographs of the site and DEM surveys pertaining to shellfish density in the area.^[1] (Compl. ¶ 9.) On December 21, 2017 David Beutel, Aquaculture Coordinator for the CRMC, issued a report in which staff concluded that Plaintiff had met all regulatory requirements and recommended approval of his application. (Pl.'s Ex. D, Staff Report, Dec. 21, 2017.)

On February 13, 2018, Plaintiff's application came before the CRMC for a public hearing pursuant to § 42-35-9(a).^[2] At the hearing, Mr. Beutel introduced the December 21, 2017 Staff Report relative to Plaintiff's application. In so doing, Mr. Beutel reviewed the materials that had been considered by the staff, including letters submitted in support of and against the proposal, site assessments, and surveys. (Pl.'s Ex. E, Hearing Transcript (Tr.), 84:18-90:10, Feb. 13, 2018.) Mr. Beutel then detailed the staff's findings, ultimately concluding that the proposed site would not have a significant negative impact on commercial shellfishing in the area and recommended approval of the application. Id.

Next the Council invited Plaintiff to make his presentation in support of his application. Prior to beginning his testimony, however, Plaintiff asked the CRMC chairwoman about his ability to "ask questions of objectors through [the Council] as they come up." Id. at 92:1-3. The Chairwoman indicated that Plaintiff could "present [questions to the objectors] to a limited extent," to which he responded that he would "try to keep everything towards the end as best [he could]."

Id. at 92:4-7. The Plaintiff then proceeded to give a brief overview of his application and indicated that he was reserving the end of his time to present additional material as rebuttal evidence after any objectors had testified. Id. at 95:3-9. He then received questions from the Council regarding his application and testified that he chose the proposed site because he wanted to avoid conflicts with commercial shellfishermen. Id. at 95:11-99:13. He also confirmed that he would not seek any expansion of the oyster farm if his application was approved. Id. At the conclusion of his testimony, the Council told Plaintiff that he could "come back up afterwards" following testimony from the objectors. Id. at 99:14-15.

The Council next heard testimony from and asked questions of six objectors without any questioning by Plaintiff. The objectors stated that they opposed the oyster farm application because they believed it would interfere with commercial fishing activities and recreational use of the bay. Id. at 100:17-122:15. Subsequently, one Council member asked that any other objectors in the audience stand up and state their opposition to the application for the record. Id. at 122:17-124:3. Four individuals identified themselves and offered a blanket objection to the application with little or no testimony and without any questioning by Plaintiff. Id.

The Council then permitted Plaintiff "to come back and present anything or respond to what the objectors had to say." Id. at 124:5-8. Plaintiff presented testimony from supporters, who stated that the aquaculture site would be beneficial to the State's ecosystem and provide learning opportunities for children. Id. at 124:20-128:22. Plaintiff then responded generally to the objections, testifying that there was precedent for the proposed site, that he had no intention to cause any harm to neighboring fishermen, and noted that the preliminary reports stated there would be no significant adverse impact by the proposed activities. Notably, he did not cross-examine any of the objectors. Id. at 129:2-138:1. After deliberation, the Council voted 4-4 on Plaintiff's application, resulting in a denial. Id. at 145:1-19.

On April 24, 2018, Plaintiff filed his appeal of the CRMC's decision in which he contends that CRMC's findings and decision were in violation of various statutory provisions and were made upon unlawful procedure. Specifically, Plaintiff maintains that he was not afforded the opportunity to cross-examine objectors at the hearing and that the CRMC improperly failed to consider a complete record of his application. Furthermore, Plaintiff asserts that the Council's written decision does not support a denial of his application and asks this Court to reverse the Council's February 2018 decision and remand the matter for further proceedings.

In response, the CRMC concedes that it did not initially consider the supplemental materials that Plaintiff submitted for his application, but instead reviewed a one-page summary of the materials.^[3] The CRMC maintains that this was sufficient as the additional materials were redundant and both legally and factually insignificant. The Council further maintains that Plaintiff was afforded the opportunity to cross-examine witnesses but chose to waive that right, presenting supporters of his application instead. Finally, CRMC argues that the written decision complies with all statutory requirements and asks this court to dismiss Plaintiff's appeal.

II Standard of Review

Section 42-35-15 of the APA governs this Court's review of an agency decision and provides:

"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." Section 42-35-15(g).

This Court will make '"an examination of the certified record to determine if there is any legally competent evidence therein to support the agency's decision"' and will uphold the agency's decision if sufficient competent evidence exists on the record. Johnston Ambulatory Surgical Associates, Ltd. v. Nolan, 755 A.2d 799, 804-05 (R.I. 2000) (quoting Barrington School Committee v. Rhode Island State Labor Relations Board, 608 A.2d 1126, 1138 (R.I. 1992)). In so doing, the Court will not substitute its judgment for that of the administrative agency "concerning the weight of the evidence on questions of fact." Environmental Scientific Corp. v. Durfee, 621 A.2d 200, 208 (R.I. 1993). Questions of law are reviewed de novo. Id.

III Analysis

It is well settled that "the due-process requirements of a fair trial apply to the procedures of administrative agencies." Bourque v. Dettore, 589 A.2d 815 823 (R.I. 1991). Procedural due process at the administrative level requires that all petitioners receive "an opportunity to be heard at a meaningful time and in a meaningful manner." Id. When reviewing the procedural fairness of an administrative hearing, our Supreme Court will look to see

'"whether a fair-minded person in attendance . . . [could say] that everyone had been heard who, in all fairness, should have been heard and that the legislative body required by law to hold the hearings gave reasonable faith and credit to all matter[s] presented, according to the weight and force they were in reason entitled to receive."' Barber v. Town of North Kingstown, 118 R.I. 169, 176, 372 A.2d 1269, 1272 (1977) (quoting Golden Gate Corp. v. Town of Narragansett, 116 R.I. 552, 562, 359 A.2d 321, 326 (1976)).

A Right to Cross-Examination

Plaintiff first contends that the CRMC deprived him of due process by denying him the opportunity to cross-examine the witnesses who testified against his application. Plaintiff maintains that both judicial precedent and statutory/regulatory provisions provide for the right to cross-examination and that he unequivocally asserted his right to do so. Plaintiff further contends that the objections were either not supported by evidence or were contradicted by the...