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Deciding who is entitled to use the New London State Pier emerged as a key question in a local salt distributor’s ongoing appeal of a state permit needed for the pier’s redevelopment.
Attorneys for the Connecticut Port Authority and Department of Energy and Environmental Protection argued during a virtual hearing on Monday that Superior Court Judge John Cordani should dismiss road salt distributor DRVN’s appeal – which seeks to overturn a permit DEEP approved in August that would allow the port authority to fill about seven acres between the two existing piers as part of its redevelopment into an offshore wind hub.
DRVN – which operated out of the State Pier from 2014 until the port authority forced it to leave on Feb. 28, 2021 to make way for the redevelopment project – argued that DEEP’s approval of the permit cost the company its ability to use the pier, and millions of dollars in revenue as a result.
The attorneys for DEEP and the port authority argued that, because DRVN was leasing its space at the pier, it doesn’t have any right to use the pier without the permission of the port authority or the pier operator, so any claim of lost revenue is speculative and based on the assumption that DRVN would be allowed to keep its business at the pier if there was no redevelopment project.
According to a complaint filed by DRVN, the company had about $13 million in revenue from its salt distribution in 2019-2020, and was projecting $15 million in revenue in 2020-2021. Because the business was forced to vacate in February, it ended up with $7 million in revenue, the company said. DRVN is now projecting $4.5 million in revenue in 2021-2022, less than one-third of its revenue in 2019-2020.
John Casey, the attorney representing the port authority, compared DRVN’s appeal to a former tenant of a shopping mall which had its lease expire then asking the town planning and zoning commission to force the mall’s owner to give it a space.
If the mall owner decided they wanted to renovate their building, and didn’t renew a lease with a store owner in order to make room for that renovation, the store owner doesn’t have the right to tell the mall owner that it can’t make the renovations because it puts their store out of business, Casey said.
Casey said it appeared that DRVN was asking the court to grant it property rights that don’t exist already so that it can use those property rights to make a claim against the port authority. Casey said DRVN does not have a right to use the pier, and if it applied on its own for a permit to DEEP to build something like a crane at the pier that would help its salt business, DEEP wouldn’t accept the application because DRVN doesn’t have an interest in the property.
“It’s so wrong to require [the Port Authority], who has been through this permitting process, has proven sufficiently to the Commissioner [of DEEP] that its project meets the requirements of Connecticut’s coastal permitting laws, to then have to defend that decision to an entity that has no right to use that facility ever again in the future,” Casey said.
Keith Anthony, the attorney representing DRVN, said there is no disputing that DRVN has not been a tenant of State Pier since February. But DRVN didn’t need to be a tenant at the pier to import salt, if the pier was operating, he said. Because the port authority has shut down the pier so that it can complete work approved by the state permit, DRVN can no longer import salt whether it is a tenant or not, he said.
“The salt comes in on a boat, it’s all offloaded into trucks and rail systems, and shipped up north on the Thames River or wherever else it goes,” Anthony said. “You don’t need to be a tenant to import salt.”
It wasn’t DRVN’s status as a tenant that gave it the ability to import salt through the State Pier, it was the fact that it was a functioning port that had the necessary equipment. Now the port is closed and the equipment is gone, directly as a result of the permit being approved, Anthony said.
Cordani said he would consider the arguments and decide whether to dismiss the appeal for a lack of standing “shortly.”