Champlin's back before CRMC
Champlin’s Marina continued to press its nine-year suit to expand into the Great Salt Pond at a special hearing called before the Coastal Resources Management Council (CRMC) on November 16.
The meeting was held in response to a directive from Rhode Island Superior Court Judge Kristen Rogers asking the CRMC to reopen the hearing. Champlin’s has argued that it received disparate treatment by the CRMC when it approved an expansion for Payne’s Dock, but ruled against Champlin’s.
With an audience of approximately 25 gathered at the Narragansett Town Hall — among them some 15 island residents — CRMC counsel Brian Goldman explained that the remand required consideration of new evidence from Champlin’s, “the details of which must present specifics of each marina for which Champlin’s is allowed to present rebuttal witnesses.” Noting the “burden of proof is on” Robert Goldberg, Champlin’s chief legal counsel, he added his hope that presentation of evidence would finish today. In the end, although the hearing went on for seven hours, it was continued.
Laying out differences
As proceedings evolved, Goldberg adhered to his central argument that Champlin’s had been unfairly treated at the coastal council. Daniel Prentiss, lead counsel for the town, focused on the essential differences between the two applications, in particularly the scale of the petitions. Champlin’s asked for a four-acre expansion and Payne’s for 0.38 acres.
Goldberg introduced his three witnesses, the first of whom was Christopher Duhamel, a civil and environmental engineer for DiPrete Engineering, where he serves as one of three vice-presidents. The second was Scott Rabideau, a wetland biologist specializing in environmental permitting and the president and CEO of Natural Resources Services. The third was Joseph Grillo, owner of Champlin’s Marina. Prentiss called only one witness, Block Island Harbormaster Stephen Land.
When Prentiss objected to Duhamel’s credentials as an expert in the field of channels and harbors, Goldberg accused him of attempting to limit testimony and questioned Duhamel on the “task you have been charged with.”
Noting it was “to examine existing records” relevant to both proposed expansions, Duhamel said he focused on “subsequent decisions in each to illustrate what these two decisions look like in order to measure them within the same parameters.” The decision in the Champlin’s case, Duhamel said, resulted in the requirement that 300 feet be maintained as a buffer between Champlin’s and the existing mooring field, while 200 feet was allowed for Payne’s.
Goldberg characterized the difference as “going to the very heart of” the issue. He suggested that “a different standard was applied for each.” Much of Duhamel’s testimony was predicated on a series of charts and photos presented to the counsel, which unfortunately the audience could not see. Ensuing discussion concerned a purple shaded area Duhamel pointed out that caused some confusion for council members.
Counselor Paul Lemont said, “There’s something on the map that doesn’t exist.” Goldberg responded that “the area shows what the area [on the pond] would look like if Champlin’s extended 200 feet, as had been allowed for Payne’s… It’s the way it would look if the same standard were applied.” Counselor Tony Affigne raised questions about the appropriateness of offering “hypothetical testimony.”
Duhamel referred to a CRMC subcommittee report that had recommended cutting Champlin’s expansion down to two acres. It was a compromise Champlin’s had agreed to, but the full council had rejected. Goldman asked Goldberg to concentrate on the full council’s reports rather than the subcommittee’s.
Goldberg asked Duhamel: “If you apply a 300 foot buffer standard used for Champlin’s for Paynes’ it wouldn’t have been allowed to expand, would it?” Duhamel agreed.
When Prentiss objected that he was leading the witness, Goldberg rephrased, “How much would [Payne’s] be in violation if held to Champlin’s standards?” Duhamel said, “Given that standard, there wouldn’t be any expansion [for Payne’s].”
Vessel size in relation to fairways
Focusing his argument on vessel size, Goldberg showed Duhamel photos suggesting Payne’s Dock accommodated boats much larger than it should, potentially cutting into mooring fields when boats turn around. The formula for such turn-around has been set at approximately two times the length of the vessel. This in turn helps determine criteria for creating fairways. When asked by Goldberg what he thought was the “right standard,” Duhamel answered, “I’d consider 200 feet right.”
Prentiss cross-examined Duhamel on his experience, peppering him with questions about whether he had taken courses in designing a marina or navigational channels, on what his experience was in designing fairway channels in harbors and whether he had investigated vessel traffic during the summer. Responding in the negative to those questions, Duhamel said he preferred consulting other experts such as the harbormaster and the Army Corps of Engineers (ACE). Asked when he’d been retained, Duhamel said, “Last week.”
When Prentiss interrupted Duhamel in mid-answer, Goldberg was on his case: “Mr. Prentiss is not entitled to take part of the answer and not the whole. This is not a buffet.” A bit later Goldberg chastised Prentiss for standing too close to the witness. “It’s intimidating. Could you stand away? Give him some space.”
A simple yes or no
Prentiss tried several times to have Duhamel answer a “simple yes or no” to his questions. For example, he said, “Will you agree with me that Payne’s sought 0.38 acres compared with Champlin’s proposed four-acre expansion and that’s a big difference, isn’t it?” Duhamel replied, “It’s the effect on water quality, the effect on fairways. It’s not a yes or no answer.”
When Rabideau rose to testify, Goldberg asked him to consider “water quality impact relative to findings in the decisions.” Prentiss interjected, “Asking the witness for his characterization is inappropriate.” Goldberg countered that Rabideau had “a unique perspective,” and Rabideau said in Payne’s application, water quality had been left to the Department of Environmental Management. “In the Champlin’s case, it was not,” he said. Though Prentiss insisted the witness was asked for subjective responses, Goldberg urged Rabideau to continue. He said, “Nothing has been done regarding water quality” [in the Payne’s application].
Subsequently, Rabideau, retained by Champlin’s in 2010, was asked about potential impact on shellfish. He said, “An employee of the DEM issued a statement [indicating] as long as a shellfish monitoring program was in place it would mitigate” any problems. Goldberg asked if anyone had asked for shellfish information in the Payne’s deposition and Rabideau said “No.”
Grillo asked about Payne’s
Goldberg’s third witness was Grillo, who was questioned on his knowledge of operations at Payne’s Dock. Acknowledging Payne’s was a competitor, he said his own primary market and income were from transient dockage, which was also true of Payne’s.
Goldberg asked Grillo, “Have you had the opportunity to observe the relative size of boats at both docks?” Grillo said those at Payne’s were “larger and larger.” He cited cruise ships docked at Payne’s. One of them, the Independence, was 226 feet long with a beam of 48 feet, he said.
Moving to strike Grillo’s response, Prentiss said he had failed “to provide foundation for exact knowledge.” After an extended exchange, Grillo said he found the measurements for the specific boat online. He looked at photos Goldberg presented and suggested the length of similar cruise liners violated prescribed turn-around distances.
When Goldberg asked Grillo whether he was still seeking “the same acreage you were seeking,” Prentiss objected that Goldberg was not allowed to introduce a new proposal, setting off a reaction from the council. To Goldberg’s response that he was just defining Champlin’s purpose, Livingston said, “No, I don’t think so.” Affigne added, “Are we to consider a new application by Champlin’s? I’m not sure what we’re doing here.”
Arguing that he was not presenting a new application, Goldberg insisted that “the witness has a right to explain.” However, Goldberg redirected Grillo to the issue of rafting, which Grillo said he wished to eliminate. Prentiss suggested Grillo could stop rafting by the first of next year, but that he continued “because you want to maximize your revenue.” Grillo responded, “No, we want to exist.”
Turning the focus to the scale of each marina’s intended expansion, Prentiss said: “Your application sought an expansion of four acres; Payne’s… 0.38 acres. Your application sought an additional 140 vessels [while] Payne’s was for 15 vessels.” While tacitly agreeing with Prentiss’ figures, Grillo did not agree that the Champlin’s expansion would displace moorings in a large area delineated as Mooring Field-E.
Witness for the town
Prentiss called Land as a witness for the town. After two years as assistant harbormaster, Land is in his third year as harbormaster. In response a question from Prentiss about his experience, Land said, “I’ve been sailing all my life,” indicating he had navigated vessels into and out of more than 200 ports “from Maine to Grenada.”
Asked to list his job responsibilities, Land said in addition to being “in charge of both harbors,” these included the safe operation of vessels and the safety of passengers, making certain boats are on the pump-out system and, on-shore, maintaining shellfish. Land said he did most of his work on a boat during summers, spending from 7 a.m. to 7 p.m. assisting large vessels entering the pond, helping boaters secure their anchors or get into slips.
When questioned about the frequency of boats like The Independence coming into New Harbor, Land said he only recalled them “before Fourth of July and after Labor Day.” When shown some photos presented by Goldberg, Land thought they’d been “taken during the off-season.”
Prentiss asked him if he was familiar with vessel activity during the summer season and Land said, “Things are busy… There is definitely congestion.” Asked to compare the sizes of boats at each of the marinas, Land said typically Champlin’s drew the larger ones, 50 to 70 feet long, while Payne’s had more of the 30- to 40-foot power boats.
Itemizing the various uses made of the Great Salt Pond, Land focused on the area called the conservation and recreation area, which is used, he said, “for shellfish flats, water-skiing, sailing, swimming — for every water sport.” He added, “It’s a really extremely important part of the Great Salt Pond.”
Mr. Land may answer the questions
On the issue of congestion, Prentiss asked Land about the numbers of boats at marinas and whether they were occupied to capacity during the season. Land said between July 1 and Labor Day, there were 1,500 boats in New Harbor. He said that both Champlin’s and Payne’s docks were generally full from Thursdays to Sundays.
When Goldberg took up cross-examination, he prefaced his questions by observing Land was “not certified as a recognized expert. What are his credentials?” Overruling that objection, Chair Livingston said, “Mr. Land may answer questions.”
Asking if Land knew the distance from the face of Champlin’s docks to the mooring fields, Goldberg instructed, “I don’t want you to guess.” Land said by stretching a line out he had determined the distance to be 300 feet.
From distances to turn-around space to incursions into mooring fields, Goldberg directed Land to consider whether or not “there is a rational basis for approving an expansion of Payne’s while denying Champlin’s.” Jerry Elmer, of the Conservation Law Foundation and one of the town’s counsel, objected, noting the question was not appropriate to ask Land.
Picking up his cross-examination, Goldberg asked Land whether the town’s legal team — Prentiss, Elmer and Donald Packer — were representing Land in any way. Land said they were not.
Noting that Prentiss and Packer represent town employees, Goldberg asked, “Have they told you what they wanted you to talk about?” Land said, “I discussed a number of questions that are talked about all the time.” Goldberg directed Land to compare applications submitted by the marinas, but Prentiss objected that he hadn’t presented Land “to give comparative testimony.”
Chair Livingston clarified: “He can answer questions on the harbor, not on applications.”
As to turn-around space in front of Payne’s, Goldberg pressed Land to agree there was “not a huge area in which to move around… from the face of the existing Payne’s Dock to the mooring field.” Land suggested the area widened as a boat passed Payne’s. On the matter of routes to each marina, Land said, “Boaters come straight down the channel to Payne’s.” He added, “Most boats coming to Payne’s know where they’re heading, just as they do to Champlin’s.”
Agreeing that boat size is going up, Land did not agree that most of the large ones were docked at Payne’s. “I’d say the bigger ones are at Champlin’s on average,” he noted.
Asked what his relationships were with marina owners — Cliff Payne and Joseph Grillo — Land replied he felt they were good with both.
To be continued
At this point, with questioning of Land underway for a good hour, Livingston said she hoped Goldberg would conclude his cross-examination before adjournment. Goldberg responded that he didn’t “anticipate finishing with Mr. Land at this time.” When Livingston asked if Land were the “appropriate one to provide evidence,” Goldberg said, “I anticipate needing to call him back.”
With five minutes left, Livingston suggested that Goldberg “ask five minutes of questions of Mr. Land.” In that time Goldberg directed Land to consider whether or not the expansion of Champlin’s would relieve the necessity for rafting and congestion. Land maintained the question of congestion could not be simply tied to rafting. “Congestion is a symptom of many things,” he said.
While Goldberg was in the midst of a question, Livingston interrupted to announce the continuation of the hearing and ask for adjournment. No date was set for the next hearing, but after the meeting, Livingston described the process going forward. After the hearings are concluded, the parties will be asked to file legal briefs, for which the CRMC will set a time period. After consideration of those briefs, the CRMC will convene a public hearing or workshop at which a final decision will be made.