NERONHA
Citing the approved expansion of the Jamestown Boat Yard, the state agency in charge of coastal development “has confused and frustrated the public’s trust” through its decision-making process, according to the attorney general of Rhode Island.
Attorney General Peter Neronha, a Jamestown resident, sent a letter dated April 12 to Jennifer Cervenka, chairwoman of the Coastal Resources Management Council, that says the agency “should thoroughly evaluate the draft decision in light of the requirements established by the Rhode Island Administrative Procedures Act.” Proceedings by all state agencies, he wrote, are governed by the APA.
The council heard the application from the Safe Harbor property during two meetings in October 2020. Despite testimony and objections from 25 witnesses, and a petition against the application signed by 500 Jamestown residents, an approval was issued New Year’s Eve.
Neronha asked the council “to thoroughly evaluate the draft decision before ratifying it as a final agency order,” but they did not heed his advice and voted to approve the ruling.
In his letter, Neronha said “it is clear” the ruling issued was “a draft decision, and not a final agency order.” The issuance of that decision, he added, “caused a great deal of confusion for the objectors, and the public, which may have deprived objectors of their rights to timely prepare for an appeal of a final agency decision.” Neronha also said the decision “does not clearly state” whether the application was being treated as a Category B application, which makes the criteria for approval unclear.
“The point being, even if there is evidence in the administrative record to support the council’s vote on the above-referenced application, both the APA and numerous decisions from our state courts make it clear that the agency is required to adequately set forth its findings of fact in its final order and the bases for its decision,” he wrote. “The seven findings of fact listed in the draft decision do not address all of the Category B requirements, do not provide any insight as to why the council found the staff report or the applicant’s testimony credible, or why it did not find the public testimony credible relative to the applicable criteria, and do not establish any basis for the council’s decision.
“Specifically, the record contains significant evidence in the form of testimony that the applicant’s proposed expansion will exacerbate existing navigational hazards, negatively impact recreational access and endanger recreational users and small watercraft users of the cove. But the draft decision simply does not address any of this evidence. If the draft decision were to be converted to a final agency decision, unrevised, it would frustrate judicial review of the final agency decision as contemplated by the APA and would undermine the public’s trust in the agency’s decision-making process.”
Neronha said the council moved forward “expeditiously” in order for the applicant to take advantage of the “narrow dredging window that was closing fast.” If the council had been “concerned about the appeal rights of the objectors,” he said, “a specific deadline for the review and ratification of the draft decision should have been established by the council. Instead, it appears that a draft decision was issued as a final decision, such that the dredging and expansion could move forward expeditiously.
“This agency action, ignoring the council-approved procedural path, created confusion for the objectors and the public, which may have deprived objectors of their rights to timely prepare for an appeal of a final agency decision, or take any other timely legal action to prevent irreversible actions by the applicant.”
