CRMC chair recuses herself at Champlin's hearing
Coastal Management Resources Council (CRMC) Chair Anne Maxwell Livingston read a statement at the beginning of a hearing Tuesday evening, February 12, in which she recused herself from further hearings on the Champlin’s Marina effort to expand in the Great Salt Pond.
On January 17, minutes before a scheduled hearing, Champlin’s lead counsel Robert Goldberg filed a motion asking for Livingston to step down. The motion charged her with having made inappropriate comments about the Champlin’s case to Gerald Zarrella, who provided an affidavit to that effect. The hearing was cancelled.
A day after the cancelled hearing, Goldberg filed a motion of contempt against the CRMC in Superior Court; the CRMC objected. On January 24, Judge Kristin Rodgers denied the Champlin’s contempt motion.
‘Other than a friendly chat’
In her recusal statement, Livingston responded to Zarrella’s affidavit. She acknowledged having been introduced to Zarrella at a Christmas party as “someone who had been a member of the CRMC in the past” and that she had chatted with him “about what it was like to serve on the council...”
She added, “Such discussion may well have led me to make indiscreet comments about the evolution of the Champlin’s matter, which is currently before the Council. At no time did it occur to me that our conversation was other than a friendly chat ... I do not believe that anything I said to Mr. Zarrella was untrue, and I am sure the opinions I expressed to him grew out of the evidence presented to the Council at the two hearings we had held in July and November.”
She continued, “Even though Mr. Goldberg had concluded his case in chief in November, the matter was ongoing, and I should not have discussed it. While I believe that I could still be fair and impartial and have an open mind, in an abundance of caution I am recusing myself from the further hearings relating to Champlin’s Marina.”
Hearing proceeds with new chair
After Livingston’s statement, Vice-Chair Paul E. Lemont stepped in to direct the hearing.
He reiterated that they were all assembled to meet the charge of Judge Rodgers to determine whether there had been any disparities in the way the CRMC handled expansion applications from Champlin’s Marina and Payne’s Dock.
The most recent hearings have taken place in response to an order issued by Rodgers to allow Champlin’s to pursue its argument that it had received unfair treatment when compared to Payne’s Dock.
While the council denied the Champlin’s request for more than three acres of expansion, it later approved the Payne’s application for less than an acre.
Picking up from where it had left off on November 16, 2012, the hearing began in earnest with Goldberg examining New Shoreham Harbormaster Stephen Land. In earlier testimony, Land spoke about busy summer boating activity and congestion in areas closest to the marinas (Champlin’s, the Boat Basin and Payne’s).
At that time, Land said the larger boats (those from 50 to 70 feet long) tended to dock at Champlin’s more frequently than at Payne’s.
Goldberg pressed Land about copies of compiled boat counts he had brought to the hearing: how many copies were there, who provided them? Land replied his assistant had helped him put them together and that they generally covered all the marinas in the area.
“Is there a reason you didn’t have copies made for exhibit?” he asked. Land said he didn’t realize he was meant to do so. After some scrambling to look for copies resulted in a delay, Lemont became impatient and urged Goldberg to move along.
Goldberg pressed Land on measurements from the end of Payne’s and Champlin’s docks to the mooring fields, on the numbers of cruise ships that entered the harbor, and on whether Land read the engineer’s reports.
Land noted that when he took measurements from the corner of Payne’s dock, he used 100-foot lines and “kept tying them together to arrive at 380 feet to the [mooring] float.” At the earlier hearing, Land cited the measurement from the face of Champlin’s dock to the mooring fields as 300 feet. He had not read the engineer’s reports.
The issue of the distances to the mooring fields from both marinas went to the heart of the matter: whether the proposed expansions would displace town moorings in a large area known as Mooring Field-E.
Goldberg suggested that much of Land’s time must be taken up with cruise ships visiting in the summer, adding that Land must see more of these at Payne’s than at Champlin’s; but Land did not concur.
“They very rarely need my attention,” said Land. “They are the least of my worries. Their captains are professionals. Weekend cruise people take up most of my time.” Land is in his third year as harbormaster.
Goldberg wished to place the list of cruise ships into evidence over the opposition of Daniel Prentiss, counsel for the town of New Shoreham and for the Committee for the Great Salt Pond.
With Prentiss redirecting the questioning, Land concurred that it was a normal practice for a harbormaster to take boat counts and to maintain records of them. When Prentiss asked to “move admission of boat counts” into evidence, Goldberg objected.
Once again Lemont’s patience seemed strained: he said he would allow it, adding, “I hope, Mr. Goldberg, we don’t go back and forth on this.”
Goldberg then asked Land about the numbers of craft he’d observed within the Great Salt Pond, to which Land answered, “Sometimes we’ve had as many as 1,800 boats on July 4th.”
Prentiss called Kenneth Anderson, supervising civil engineer for the CRMC. Anderson explained that he did engineering assessments, reviewed permits and permit applications and had over a period of 25 years been involved in some 50 marine-related applications.
When reviewing applications, Anderson said he was guided by the principles of the Coastal Resources Management Program (CRMP). “I followed identical standards in each review [both the Champlin’s and Payne’s applications] for expansion,” he said.
Anderson said Payne’s report was completed two to three years after Champlin’s was done. He said for that reason “there was even more sensitivity” to adhering to guidelines. In answer to Prentiss’ question about whether he applied “any provision of the CRMP standards differently to Payne’s than to Champlin’s,” Anderson said, “No.”
He explained that regulations encourage marinas to make the most efficient use of space.
Anderson said he determined that in regard to Champlin’s layout there was “an inefficient configuration.” When Prentiss asked, “What is it about Champlin’s current design that makes it inefficient?” Goldberg objected, noting Prentiss was drawing conclusions.
Lemont interjected that Goldberg needed to wait. “You’ll have your shot at him,” he said.
Anderson replied that the Champlin’s configuration creates “blockages that impede navigation in and out of the marina.”
When asked about the size of vessels at Payne’s, Anderson noted that based on the information received with Payne’s application, the largest vessels were between 50 and 55 feet.
Finally, Prentiss asked Anderson, “Is there any rational basis for the denial of Champlin’s and approval of Payne’s Dock’s applications?” Explaining his decisions, Anderson said one of the most important criteria “had to do with navigational impact, an assessment of safe navigation. In Champlin’s case, the size of vessels recommend a safe fairway they did not provide.”
Anderson said the Payne’s decision was based on “a different size of vessels and location of mooring field.” Though there would be a loss of several moorings, he pointed out a fairway existed to accommodate vessels of some width.
Anderson emphasized the intent of the application in each case was very different. In Champlin’s case, there was initially a four-acre expansion requested, which would be “inconsistent with other criteria.” In the Payne’s Dock case, the expansion was for “one-tenth of that of Champlin’s, less than one-half acre,” which would have a “corresponding reduction in impact.”
In his cross-examination of Anderson, Goldberg pressed him on the mooring fields, questioning whether he had assessed “ how close the nearest mooring ball was to Champlin’s existing pier?” Anderson replied “Approximately 310 feet.” In the Payne’s case, Anderson inferred the distance would be “somewhere in excess of 270 feet.”
Goldberg continued questioning Anderson on these distances, as well as on the size of fairways and of vessels. Regarding the size of fairways, the “industry accepted” way of determining them, Anderson said, was to multiply one and a half to three time the size of the vessels intended to be docked.
Anderson said he recalled seeing a photo “showing a vessel in excess of 160 feet” at Champlin’s. He explained that the CRMC used aerial photos in making an assessment of vessel size.
Next Goldberg asked Anderson if Payne’s had a dinghy dock.
“Was there anywhere you considered public access in your report? Isn’t it fair to say that nothing in your report addresses public access in the Payne’s case?” Goldberg said.
Anderson asked, “Public access?”
Goldberg asked again, “Isn’t it one of the criteria you look at?” And Anderson replied, “I don’t think so; we stuck to criteria.”
A matter of scale
Considering the engineering recommendation for the Payne’s application, Goldberg asked, “What was so different for Champlin’s?”
“It was a matter of scale,” Anderson replied. “To push the expansion forward in the Champlin’s case would result in significant loss of mooring space.”
Champlin’s initial proposal was for an additional four acres, while Payne’s was for 0.38 acres. Champlin’s sought space for an additional 140 boats, while and Payne’s sought 15.
In terms of water traffic, Goldberg suggested many vessels “stop at Payne’s first, the Boat Basin next, there would be less traffic in front of Champlin’s.” When Lemont directed him to focus on Judge Rodgers’s charge to “determine disparate treatment,” Goldberg said, “Boats are bigger at Payne’s than at Champlin’s. [Anderson] can attempt to justify it” by saying the boats at Payne’s are smaller.
Councilor Tony Affigne then asked CRMC legal counsel Brian Goldman if “it is our responsibility to make a decision based on our own [interpretations] or on information we have received?” Goldman said that each applicant was certified to present truthful information. Council members concluded that they must go with the information presented to them at the time of application.
Goldberg told the group that they were not to engage in “blind adherence... You’re obligated to due diligence.”
As the time approached 9 p.m., Lemont asked all parties how much longer they would need to conclude their cases. Goldberg and Prentiss agreed they could do so in one more session, which was scheduled for February 26 at 5 p.m., at the Rhode Island Department of Administration Building, One Capitol Hill, Providence.