Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

An American Bar Association Webinar will bring to a national audience Rhode Island’s and Massachusetts’ experience with the proposed development of a LNG facility as part of a discussion of issues facing states in the siting of potentially hazardous facilities in their communities.

Recall the political furor that developed when Weaver’s Cove Energy LLC proposed constructing a LNG (i.e. liquefied natural gas) facility in Fall River, Massachusetts, which would bring LNG  through Rhode Island and Massachusetts coastal waters in ships similar to the one pictured here.

I would be the first to argue that all of that furor was not justified, but by way of disclosure I should also note that I represented Weaver’s Cove Energy in its federal consistency review filing with the Rhode Island Coastal Resources Management Council.

I will moderate the panel discussion and will be joined by veteran litigator Terrence Tierney, Esq., now with the University Of Massachusetts School Of Law and formerly with the Rhode Island Attorney General’s Office, where he was involved in litigation opposing siting of the LNG facility.

Also on the panel is an experienced planner, David Westcott, AICP, the chief planner and environmental scientist with Mason & Associates, Inc. in North Scituate, Rhode Island, who will be discussing the siting of locally unwanted land uses, also known as LULUs.

For my part, I will be discussing how the 34 coastal and Great Lakes states can use the Coastal Zone Management Act’s federal consistency program to protect its communities in the siting of potentially hazardous facilities.

And relying on Rhode Island’s first in the nation ocean zoning program, I will also be discussing how other states can follow Rhode Island’s lead and actually strengthen the protections available under the federal consistency review program.

So all and all Little Rhody is going to have the opportunity to showcase lessons learned here and how this may help other states.

The Webinar airs October 19^th at 1:00 pm – 2:30 pm Eastern, 12:00 pm – 1:30 pm Central, 11:00 am – 12:30 pm Mountain, and 10:00 am – 11:30 am Pacific.

Registration information is available here.

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To all those developers rushing off to federal court to sue because state regulations preventing development have “taken” your property without just compensation—NOT SO FAST!

And to all those real estate investors who can’t wait to get into real estate development to make the really Big Money—NOT SO FAST!

That first warning was the clear and unequivocal message from the First Circuit Court of Appeals on a Rhode Island inverse condemnation case, issued just days ago. Downing Salt Pond Partners  v. State of Rhode Island and Providence Plantations, No. 10-1484  (1st. Cir. May 23, 2011).

And the second warning may be buried within the pages of the Court’s decision.

Developer’s Worst Nightmare

The facts are every real estate developer’s worse nightmare.

The developer, Downing Salt Pond Partners, acquired real estate in Narragansett for a residential development, and in 1992 received a Coastal Resources Management Council (CRMC) Assent to develop the property for a 79 lot residential subdivision.

After building 26 homes from 1992 through 2007, the Rhode Island Historic Preservation and Heritage Commission determined that artifacts found during construction indicated the property was the site of a Narragansett Indian settlement. The Historic Commission urged CRMC to withdraw the Assent.

While CRMC did not formally invalidate the Assent, it wanted to assess the issues raised by the Historic Commission.

Construction was halted, and Downing alleges the Historic Commission wanted to either prevent further development of the project or require the developer to undertake an archeological data recovery project that Downing asserted would cost it $6 million.

So there the developer sat, with the uncertainty of whether it could ever complete its project, after having purchased the land, gotten its permits, installed infrastructure to support development, and built less than a third of the houses it expected to sell.

By June, 2009 the issue had not been resolved, Downing started development, CRMC issued a cease and desist order, and Downing headed to federal court, claiming its property had been taken without just compensation, and also alleging denials of constitutional due process and equal protection provisions.

The Court Speaks—And Things Get Even Worse For The Developer

The federal District Court found against Downing, saying the developer was required to bring its claims in State court. Downing/Salt Pond Partners, L.P. v. Rhode Island, 698 F. Supp. 2d 278 (D.R.I. 2010)  On May 23, 2011, the First Circuit Court of Appeals affirmed.

In essence, the Court held that the United States Supreme Court’s decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), establishing ripeness requirements for such suits in federal court, required that the suit be brought in state court because Rhode Island had an adequate remedy for inverse condemnation claims and the claim must therefore be pursued in State Court.

The First Circuit refused to address the argument that even if the inverse condemnation claim was not ripe for hearing in federal court, the due process and equal protection claims were ripe. And while it did not address that argument substantively, it did suggest it did not find it a compelling argument.

(If you want to read an excellent commentary on the mess the Williamson County case has made for property owners claiming a taking, see the recent posting (May 30, 2011) by attorney Robert H. Thomas about the Downing Salt Pond case on inversecondemnation.com.)

So after four years of uncertainty, the developer still has no resolution, and no compensation, and presumably has to head back to court—this time State court—and perhaps back to the negotiation table.

Lessons Learned

It appears fairly clear that the federal courts continue to be reluctant to entertain land use regulatory takings cases, and your remedy is in State court.

There is a reason real estate developers expect to make Big Money; they take Big Risks, and the developer’s return is the compensation for those risks. And sometimes those Big Risks result in Big Losses.

So the next time you see a real estate developer driving a big fancy car, well, you may just want to wish him well!

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Those of you now planning your professional development seminars or continuing legal education opportunities for the New Year, consider a comprehensive two day conference to be held in Boston in early March if you have an interest in offshore energy development, coastal regulation, or ocean zoning.

Law Seminars International is sponsoring “A Comprehensive Conference on Offshore Energy Development” to be held at Seaport Boston Hotel on March 3rd and 4^th.

Twenty-four speakers are scheduled for the two full day event, including

•      state and federal officials influential in offshore alternative energy policy and oversight
• ·    lawyers knowledgeable about the regulatory process, and
• ·    industry executives taking leading roles in the development of offshore energy projects.

I will be speaking on “Zoning the Oceans”,  and specifically on Rhode Island’s marine spatial planning initiative, which resulted, after two years and over $8 million dollars,  in the Rhode Island Coastal Resources Management Council's (CRMC) recent completion of its Ocean Special Area Management Plan or Ocean SAMP. That plan provides a comprehensive approach to regulation of nearly 1,500 square miles of offshore waters, the most ambitious and comprehensive special area management plan ever produced by the CRMC.

CRMC’s Ocean SAMP has drawn national attention as an innovative approach to zoning extensive ocean areas to foster uses compatible with marine resource protection, and more specifically, to facilitate the development of offshore energy facilities.  While the effectiveness of the Ocean SAMP for the entire area sought to be regulated (i.e. federal waters beyond Rhode Island state waters) is pending federal review and oversight, CRMC’s Ocean SAMP is an extremely important effort which requires detailed examination.

In addition to ocean zoning, some of the other topics include

• · federal energy policies impacting offshore alternative energy development
• · federal policy priorities in regulating offshore energy development
• · federal and state policy coordination
• · current technological issues in generating offshore electricity
• · case study of a recently permitted offshore liquefied natural gas project

Given the rapidity with which federal and state regulations, litigation, and policies have been moving in this area, this conference should provide an exceptional opportunity to “get current” and “get connected”.

Seminar sponsors suggest lawyers, business executives, environmental professionals and government officials should consider attending if they are involved with:

• shipping
• aquaculture
• electric energy generation
• natural resource extraction
• other uses of the ocean surface and floor

A current program brochure and registration information may be found at: http://www.lawseminars.com/seminars/11OCEANMA.phb

I hope to see you there!

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I recently had the opportunity to address the fall meeting of the American Bar Association’s Section of State and Local Government Law on a coastal permitting topic that even some federal regulators admit generates misunderstanding.

That topic was protections available to states from activities which could impact a state’s coastal zone management program if such activities require a federal permit.

More specifically, the panel which I moderated was asked to address issues involved in the siting of potentially hazardous facilities, with particular reference to the efforts of Weaver’s Cove Energy LLC to site a liquefied natural gas terminal in southern New England.

(By way of disclosure, I represented Weaver's Cove Energy in its filing with the Rhode Island Coastal Resources Management Council under the Coastal  Zone Management Act in regard to activities it proposed to conduct in Rhode Island waters, primarily dredging.)

I don't want to go into that topic in detail, given that I am preparing an article on the federal consistency program under the Coastal Zone Management Act for submission to the Rhode Island Bar Journal. However, I do want to highlight several important considerations, including common misunderstandings, regarding protections that may be afforded states from perceived threats to their coastal zone management program.

Coastal Zone Management Act

Congress enacted the Coastal Zone Management Act in 1972, 16 U.S.C. 1451 et seq., to help facilitate States in protecting their coastal environment, given the increasing pressures for development along the coast. Participation in the program is voluntary, and an important inducement to coastal states to participate is the federal consistency program, pursuant to which states could get something of a veto over the activities of developers and others which require federal permits and which could impact their coastal environment.

That inducement was successful, as today all eligible states participate in the program.

In order to participate in the program, states must develop a detailed regulatory structure to protect and enhance their coastal environment, which program is subject to approval by federal regulators.

Federal Consistency Program

Under the federal consistency program, if an entity is seeking a federal permit for an activity that may affect any land or water use or natural resource of the state's coastal zone, the state has the opportunity to review these activities to determine whether they are consistent with the enforceable policies of the state's coastal  management program.

If a state determines such activity is inconsistent with any such enforceable policies, it may make a determination that the activity is inconsistent, and in many cases that activity is prohibited from going forward under the federal permitting scheme.

This is an effective veto by a state of activity requiring a federal permit and is therefore a very important weapon which a state participating in a coastal zone program has the opportunity to wield. But many areas of misunderstandings or confusion can arise in this regard, given that the federal consistency program is extremely nuanced.

Misunderstandings and Confusion

First, although the federal consistency program applies to federal agencies which may be seeking federal permits, as well as to non-federal entities, states have far less protection when the action is proposed to be undertaken by a federal entity.  

For example, a non-federal permit applicant must be fully consistent with the enforceable policies of a State’s coastal management program, while a federal agency must only be consistent “to the maximum extent practicable”.

Additionally, if a federal entity disagrees with a state’s finding that the proposed activity is inconsistent with the state’s coastal management program, the federal entity may nevertheless proceed with the activity under the federal permit. The state is left with what may be unpalatable options. One is seeking mediation by the Secretary of Commerce, and another is litigation.

Thus, although Federal entities are subject to the federal consistency program, it would be a mistake to assume that they are treated like any other entity seeking a federal permit.

Secondly, even if the state makes a determination that the non-federal actor’s proposed activity is inconsistent with the enforceable policies of the state's coastal  program, the Secretary of Commerce can override this decision by finding that such activities are in fact consistent with the State’s coastal program, or by finding that the activity is necessary in the interests of national security.

Finally, even if the activity is deemed to be inconsistent with the state's coastal zone program, the state may be prohibited under the federal preemption doctrine from preventing the activity, as certain federally-permitted activity is deemed to preamp state laws. For an excellent discussion of preemption under the Natural Gas Act as it pertains to the Weaver's Cove project, see Weaver’s Cove Energy, LLC. v. Rhode Island Coastal Resources Management Council et al., 583 F. Supp. 2d 259 (D.R.I. 2008) and Weaver’s Cove Energy, LLC. v. Rhode Island Coastal Resources Management Council et. al., 2009 U.S. App. Lexis 23491 (1^st Cir. Oct. 26, 2009).

Accordingly, when dealing with the federal consistency program under the Coastal Zone Management Act, one should not necessarily expect consistency.

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Many real estate developers and property owners got a significant break from the General Assembly late last year, when legislation passed to extend the expiration date of a broad range of governmental permits.

And many don't know it!

And the General Assembly recently improved on that substantial benefit.

And many still don't know it!

Because these measures passed with so little fanfare, many are unaware that hundreds of State permits which would ordinarily have expired get a new lease on life.

The first bill extended these permits until June 30, 2011. The second bill extended them even further, given the continuing economic slump.

The Legislature was concerned that because of  the economic crisis, banks were not lending and many real estate developers and ordinary property owners were in the position of not having sufficient funds to perform under governmental permits that had been issued to them.

Why Action Was Appropriate

The legislation first enacted says it well:

“The general assembly hereby finds that the current economic conditions in the real estate market demonstrate that there is little or no demand for new construction. In addition, the banking crisis has made it extremely difficult for real estate developers to obtain financing for new real estate construction. Currently there are real estate developers who have expended substantial amounts of money to obtain permits and approvals from various local and state agencies. Many of the permits and approvals will expire prior to an improvement in the economy and the financial and banking industries.”

The General Assembly’s first solution was simple and effective. All permits in effect at the time of passage, November 9, 2009, would not expire until June 30, 2011, regardless of what the permit terms say. (See the legislation.)

But in June of this year the General Assembly acted again, as the economy remained in the doldrums and no doubt there was concern that the original extension of permits may not be sufficient.

First, the new  legislation increased the number of permits protected from expiration by providing that it was not limited to permits in effect on November 9, 2009 but also included permits issued after November 9, 2009 and on or before June 30, 2011.

Secondly, the new legislation said that permits in effect on November 9, 2009 "will be recalculated as of July 1, 2011 by adding thereto the number of days between November 9, 2009  and the day on which the permit or approval would otherwise have expired".

This second bill went on to provide that the expiration date of permits issued between November 10, 2009 and June 30, 2011 "will be recalculated as of July 1, 2011 by adding thereto the number of days between the day the permit or approval was issued and the day the permit or approval otherwise would have expired". (See most recent legislation.)

Permits Affected

The legislation extends to permits issued by the Rhode Island Department of Environmental Management, the Rhode Island Coastal Resources Management Council, and by municipalities under subdivision and zoning ordinances. (See DEM’s Emergency Regulations.)

Not just professional developers will benefit from this legislation. For example, if a homeowner has obtained a variance to put an addition on his house, only to find that the local bank will not lend for the project, the homeowner’s permit will remain valid substantially beyond its normal expiration. Hopefully, lenders will then be in a feistier mood and the funds will be flowing.

A Tip of the Hat!

Given how costly it can be to get development permits, this has to be one of the smartest things the General Assembly has done in some time. And they not only did it right once, they actually improved upon it.  A tip of the hat to the folks on Smith Hill for this one!

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If you own waterfront property in Rhode Island and think you can do with it what you will, so long as you observe zoning ordinances like everyone else, think again.

Coastal waterfront property in Rhode Island is heavily regulated by the Coastal Resources Management Council (CRMC) under a complex set of regulations found in the Rhode Island Coastal Resources Management Program. You ignore that regulatory structure at your peril.

Staying out of Jail

By way of example, some years back one of my law partners came to me with a problem—he had been served with a violation and penalty from the CRMC for “improving” his water view by removing some phragmites and other vegetation. Could I help, he asked? 

After ascertaining more of the facts, I said he had a problem, but at least he hadn’t hired a bulldozer to tear up the coastline. There was a long pause and then he said, “Well, I did rent a Bobcat”.

I said I could probably keep his wife out of jail but he had better pack his toothbrush!

Of course, no one went to jail, but he did pay a fine, and the last I heard CRMC was discussing restoration of wetlands with him.

Now, if a lawyer who should know better can get himself into this kind of trouble, you can imagine what else may be going on along our coastline.

Here is the reality:

If you own waterfront property, you are subject to increased regulations which can be stringent and may control everything from whether you can have a dock to where you can build a patio to what bushes or trees you could prune or remove.

CRMC Buffer Regulations

As for the coast, the CRMC regulates activity within 200 feet of the inland edge of a coastal feature, which includes the open ocean, coastal wetlands, tidal inlets, bays, coves, and tidal rivers. And if a coastal feature, such as a tidal inlet, runs not just along the property’s outer boundary but onto the property, jurisdiction is effectively more extensive.

If the CRMC buffer regulations apply to your property, there is little you can do in the buffer area without getting CRMC permission. (RICRMP Section 150. Coastal Buffer Zones)  The buffer regulations typically apply to new residential development (for example, the construction of a house on a vacant lot), commercial and industrial development, energy related activities and certain public infrastructure.

The regulations create a buffer zone on applicable properties, the size of which is based on the size of the property and the type of water (one of six categories linked to the condition of the abutting shoreline). For example, a 10,000 to 20,000 square foot lot on Type 1 waters may have a 25 foot buffer zone, while an 80,000 square foot lot on Type 1 waters may have 150 foot buffer zone. (Variances may be granted from these requirements at the discretion of the CRMC.)

Assuming say, a 75 foot buffer zone from the most inland edge of the tidal feature on a property, the property owner would be prevented from altering this buffer in anyway, except in compliance with the regulations. The following would generally apply in a buffer zone:

• ·         Maintenance of vegetation in its natural, undisturbed condition
• ·         The planting of native vegetation if CRMC decided that was required
• ·         The filing of a plan for CRMC approval if you wish to prune or trim vegegtation
• ·         Restrictions on what you can do in the buffer zone.

The purpose of the buffer zones is to protect water quality, coastal habitat, scenic and aesthetic quality, historic and archaeological resources and to foster erosion control and flood control.

Given these protections, the regulations for buffer areas are stringent.

Regulatory Restrictions

 For example, pathways which provide access to the shoreline “are normally considered permissible” provided they are less than or equal to six feet wide and follow a winding path that minimizes erosion. 

And if you want to actually see the water, from your new house, “selective tree removal and pruning and thinning of natural vegetation may be allowed within a defined corridor in order to promote a view of the shoreline” but “only the minimal alteration of vegetation necessary to obtain a view shall be acceptable to the Council”.

And if you actually want to enjoy that waterfront, well, “minor alterations of buffer zones may be permitted along the shoreline if they are determined to be consistent with the Council’s requirements. These alterations may include maintaining a small clearing along the shore for picnic tables, benches, and recreational craft (e.g. dinghies, canoes, day sailboats, etc.). Additionally, the CRMC may allow small, non-habitable structures including storage sheds, boat houses and gazebos…..where appropriate.”

Note the repeated use of the word “may”. The regulations give CRMC a good deal of discretion to protect the values served by buffer zones.

At this point, if you are feeling pretty good since you own waterfront property that is not subject to the buffer regulations because, for example, your house was constructed before the regulations were applicable to new residential construction, don’t get too comfortable. You could actually do something that would result in the buffer regulations being imposed on your property!

More specifically, if you expand the square footage of the foundations of your structures on your property by more than 50%, you would be subject to the buffer zone requirements. The regulations are a bit complicated in this area, so this requires some attention. 

When considering expansion, weigh the benefits of the increased structure you want against the restrictions of imposing the buffer regulations on your property, and determine what is more important to you.

And for all of you who thought your house was your castle, well it is, but if that castle is waterfront property, you may be the lord but not necessarily the master of all you survey!

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Given that Rhode Island is the Ocean State, and recreational fishing is extremely popular, I have been following the concern of recreational anglers that a Presidential Task Force may be laying the groundwork for restricting the rights of recreational fishermen.

The Interagency Ocean Policy Task Force, led by the chair of the Council of Environmental Quality and composed of senior policy officials from a number of federal departments and agencies, including Interior, Commerce and Homeland Security, issued an interim report last year on planning for regulation of ocean uses.

 That report raised concerns by listing “recreational fishing” as an activity which will  be “better managed” by federal planners. Interim Framework for Effective Coastal and Marine Spatial Planning.

In a state that only this year saw passage of the first law requiring a fishing license for saltwater, enacted over a Governor’s veto and to howls of protests from recreational anglers, it may be expected that Rhode Island anglers are cool to the idea of being “better managed”.

Because the Task Force is attempting to design an ecosystem management process referred to as marine spatial planning, some organizations representing recreational anglers fear the results could be a type of ocean zoning restricting recreational fishing.

The White House Council on Environment Quality recently issued a press release no doubt designed to quell this concern. In the words of the press release:

“These draft reports….do not contain a zoning plan, and they do not establish any restrictions on recreational fishing or on public access, nor make any judgments about whether one ocean activity or use is better than another…….The Task Force strongly believes in the ability of recreational fishermen and women to continue to enjoy these activities that are critical to the economic, social and cultural fabric of our country.”

Concern is such that it will take review of a final detailed Report to put fears to rest.

For several good postings discussing various facets of this issue, please review the Ocean Zone News Bog, www.thecre.com/zoning-news/, including postings on March 12 and 19^th and February 13^th and 28th.

And if you are truly skeptical after reading these postings, you may want to throw those lines in the water before the “Ocean Gendarmes”  confiscate your rods and reels, or throw you in the lock-up for fishing in the wrong place, or with the wrong equipment, or at the wrong time, or…………….!

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This is the last in a four-part series on the Rhode Island Supreme Court’s decision in the Champlin’s Marina decision, where the court affirmed in part and reversed in part an extensive trial court opinion finding that the Coastal Resources Management Council had adversely impacted the rights of an applicant seeking a permit to expand its Block Island marina. See Champlin's Realty Associates  v. Michael Tikoian et al. (PDF).

Impermissible Ex Parte Contacts

The trail court, after extensive hearings, found impermissible ex parte contacts by several Council members, some of which ex parte contacts were found by the trail judge to have demonstrated bias on the part of three Council members. (One finding of which was overturned by the Supreme Court as to one Council member). 

While these extensive findings may be seen by some as not exactly covering the CRMC in glory, this deserves to be put in perspective. And just such perspective is found in the opinion of Justice Robinson, concurring in part and dissenting in part in the majority opinion.

Motivation and Intent

The thrust of Justice Robinson’s dissent was that he did not believe the CRMC Chairman should have been disqualified for bias and thus not permitted to consider this matter when it comes again before the CRMC pursuant to the Supreme Court’s remand. 

In his dissent, Justice Robinson noted his understanding that the majority does not suggest the Chairman had ignoble motivation or was unethical but rather that at some point during the administrative proceeding the Chairman’s “thought processes became fixed to such an extent that he could no longer render an unbiased decision”. 

Justice Robinson stated his view that the Chairman’s motivation “was simply to attempt to bring about a compromise solution with respect to a highly controversial application”, and that he “is a sincere and well-meaning public official”. Justice Robinson stated that based on his review of the record,  the Chairman was “a conscientious public official” and he believed the Chairman could have properly considered the matter on remand.

Is Clairvoyance Required of Public Officials?

Justice Robinson made a further contribution to putting the Champlin’s Marina case in perspective when he noted that the case on which the trial court and the Supreme Court principally relied, Arnold v. Lebel, which articulated impermissible ex parte contacts, was decided after the events complained of in the Champlins Marina CRMC proceeding had occurred.

        As Justice Robinson said:  

“I take no issue with the more exigent considerations relative to ex parte contacts which are the result of the clarifications that were spelled out in the quite recent Arnold  case.  However, I think it is fundamentally unfair to apply those more exigent considerations to the pre-Arnold actions...We as a society expect a great deal of our public officials--including integrity and an acute sensitivity to ethical standards.  However, I consider it unwarranted that such officials be clairvoyant as to not yet clearly promulgated expectations and norms."   

One Perspective    

It is important to keep in perspective that there are in fact real people behind these decisions, and that events don't occur in a vacuum--they occur in a context.

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In a recent talk to a regional conference of planners held in Connecticut, that is how I described a trial court's findings that a coastal permitting agency failed to follow appropriate administrative procedures.

The trial court relied on these findings to effectively reverse the decision of the Coastal Resources Management Council denying a permit for Champlin's Marina to expand its Block Island marina. See Champlin's Realty Associates v. Michael Tikoian et al. (PDF).

The Rhode Island Supreme Court has now spoken, affirming in part and reversing in part that trial court decision, in what is one of Rhode Island's most significant decisions on administrative law in recent years. (Read a copy of the high court's decision.)

It will take several posts on this blog to deal with all the issues addressed by a divided Court in this complex decision, but one thing is clear. Administrative officials, including administrative hearing officers and tribunals, such as zoning boards, will ignore this far-reaching decision at their peril.

Ex Parte Contacts

The ex parte contacts came to light in a court evidentiary hearing sought by the applicant to determine the existence of procedural irregularities. These ex parte contacts included:

• the CRMC Chairman's discussion of the pending case with the Governor’s office and with subcommittee members hearing the case;
• efforts of the CRMC chairman, along with the chairman of the hearing subcommittee, to support a much reduced expansion plan that was not presented to the hearing subcommittee and was not subject to cross-examination and challenge by the applicant and other parties
• ex parte contacts by certain subcommittee members hearing the case which the trial judge found demonstrated bias

On the subject of ex parte contacts, the Court was unequivocal. Quoting from its recent decision in Arnold v Lebel, 941 A.2d 813(R.I. 2007), which was issued after the evidentiary hearing held by the Champlin's Marina trial court, the Supreme Court reiterated that "no litigious facts should reach the decision maker off the record in an administrative hearing".

Moreover, the Court said that if the decision maker "intends to consult any documentary source or person concerning facts or opinions about the merits of an appeal", it must notify the parties and give them the opportunity to challenge any such evidence and cross-examine anyone consulted. And this limitation applies to consultation with agency staff members as well, although general discussions with staff members on procedural matters, scheduling, etc. are not impermissible.

Lessons for Administrative Hearing Officers

What does this mean for administrative hearing officers, agencies holding administrative hearings, zoning boards and planning boards? Very simple--if you rely on any evidence that has not been put on the record in a quasi-judicial proceeding in such a manner that the parties can challenge it during the proceeding, the proceeding is defective and the decision is subject to reversal or remand.

When in doubt, put it on the record, notice the parties, and allow them to challenge.

What's Next?

In subsequent posts, we will examine the subjects of quasi-judicial immunity for agency officials, and remedies for defective proceedings. Finally, we will also try to put the case in perspective. Rhode Island administrative officials will be living with these issues for some time.

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That in effect was one of the questions facing the Rhode Island Supreme Court in its recent Champlin's Marina decision. Does a quasi-judicial hearing officer receive only a limited scope of judicial immunity? See Champlin's Realty Assocates v. Michael Tikoian et al.(PDF)

CRMC's Argument

The issue was first raised by the Coastal Resources Management Council in opposing an evidentiary hearing by the trial court to probe alleged procedural irregularities in the CRMC’s tie vote effectively denying a permit to expand Champlin’s Block Island marina.

CRMC argued that allowing such an inquiry would inevitably expose the Council members to questioning about their mental processes and decision-making, that such inquiries are barred of judges under judicial immunity and should be barred of administrative hearing officers under quasi-judicial immunity.

Protecting Hearing Officers

From my perspective in following the case, that was one of the most interesting issues raised.  Were these Council members, and others serving in quasi-judicial capacities, such as zoning board officials and members of administrative tribunals, often lawmen serving in part-time capacities, going to be protected like judges from being hauled into court and questioned about “what in the dickens were you thinking” when you voted for this or that.  And if they are not going to be protected, how are you going to get anyone to volunteer for those positions.

At the time CRMC raised the immunity argument, Rhode Island had recognized quasi-judicial immunity for administrative hearing officers only in the context of immunity from lawsuit, and not in the context of immunity in a judicial fact-finding.  Nevertheless, the trial judge clearly indicated she was aware of the potential problem and would ensure that boundaries would not be crossed.

The Supreme Court first found that the Administrative Procedures Act, R.I. Gen. Laws 42-35-15(f), provided the right to an evidentiary court hearing to explore alleged procedural irregularities.  But the Court was insistent that in any such hearing, inquiring into the mental process or decision-making of administrative hearing officers was out of bounds, for the first time formally recognizing the protections of quasi-judicial immunity in such evidentiary hearings in Rhode Island.

The Court found that the trial judge allowed questioning of the chairman of the CRMC and the chairman of the hearing subcommittee which in several instances delved into mental processes and decision-making and was therefore impermissible.

In fact, the trial judge's finding of bias against one Council member was reversed by the Supreme Court because it found that support for the finding of bias was rooted in questioning of the Council member that impermissibly intruded into quasi-judicial immunity.

So all in all, quasi-judicial immunity had a very good day in the Champlin's decision. 

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If there is a weakness in the Supreme Court’s thoughtful decision in the Champlin’s Marina case, in my judgment it is in the remedy imposed by a divided Court.  See Champlin's Realty Associates v. Michael Tikoian et al. (PDF)

Recall that the Coastal Resources Management Council denied Champlin’s requested permit to expand its Block Island marina because the Council voted 5 to 5 on the application; a tie vote was effectively a denial.

Trial Court Remedy

The trial court found, after 23 evidentiary hearings and one show cause hearing, that the decision-making process had been infected with impermissible ex parte contacts, and some of these contacts by Council members were found by the trial court to evidence bias. The trail court’s remedy was to disqualify the votes of the three members she found evidenced bias, leaving a vote of 4 to 3 in favor of a permit allowing expansion, albeit not of the magnitude the applicant requested.

Supreme Court Remedy

The Supreme Court rejected that remedy, holding that the proper remedy was remand to the CRMC for more hearings. The Court noted that one of the principal impermissible ex parte contacts, a compromise marina expansion plan prepared by CRMC staff at the request of the chairman of the subcommittee hearing the application, tainted the full Council vote on the application, yet that plan was never introduced nor subject to challenge.   Remand to the agency was thought to be the best remedy as it would allow for hearings on the compromise marina expansion plan.

Remedy Urged by Former Chief Justice

Former Chief Justice Williams, who was sitting on this case because Justice Goldberg recused herself, concurred in the decision in part but dissented as to the remedy. First, Justice Williams phrased his objection as to “that portion of the majority’s opinion that suggests that our decision in Arnold v. Lebel…..requires the Superior Court to remand a case in which ex parte contacts are found to have occurred to the administrative agency in every instance.” (Emphasis in original.)

Chief Justice Williams was correct to refer to this as a suggestion, as the majority noted prior precedent where the Court had refused to remand a case which had been pending for seven years because the parties have a right to have a matter decided in a reasonable period of time. But the Champlin’s majority distinguished that case because it involved only a single family house lot as opposed to the far more environmentally significant issue of significantly expanding a marina in Block Island’s sensitive Great Salt Pond.

Chief Justice Williams found that the remand to CRMC would have resulted in the matter not being resolved in the seven year time period the Supreme Court had found excessive for a petitioner to wait for resolution. He would have upheld the trail judge’s decision, without the necessity for more hearings, bringing finality to the process.

What Right is Being Protected?

There are a lot of business owners and home owners who may well agree with Justice Williams. 

As lawyers are taught in law school, “Ubi Jus Ibi Remedium” – “Where There is a Right, There is a Remedy”.

But when the remedy is nearly endless hearings, one may question just what is the right being protected.

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