2014-07-24 / Front Page

Breakers Lawsuit Dismissed

By Barry Bridges

The legal maneuverings surrounding the proposed welcome center at The Breakers took another turn on Friday, July 18, when Superior Court Associate Justice Bennett R. Gallo dismissed one of two actions filed by the Bellevue-Ochre Point Neighborhood Association against the Preservation Society of Newport County.

The crux of Gallo’s reasoning was that the matters raised in BOPNA’s complaint have not gone through the proper channels and should first be addressed through the Zoning Board.

In its efforts to thwart the society’s plans to build the center, BOPNA, represented by Attorney Daniel Prentiss, filed the suit on March 7. The association asked the court to find that the proposed facility violates key provisions of the city’s zoning ordinance.

In a conversation with Newport This Week earlier this year, Jim Moore, president and cochairman of BOPNA, elaborated on the court case and said that the association was seeking a declaratory judgment on three separate points of law to guide the parties in moving forward.

First, Moore maintained, because the museum at The Breakers existed prior to the enactment of Newport’s zoning ordinances in the 1970s, it is excepted from the requirement of a special use permit to operate in a residential zone. According to the lawsuit, the resulting nonconforming use cannot be intensified or used elsewhere on the property. “The welcome center would be a change prohibited by city ordinances because it would not be a museum activity; it would be a restaurant with a focus on food service,” Moore said at the time.

A closely-related second argument was that allowing the museum to offer food to the public would set precedent and allow other properties such as Rough Point, Beechwood, and Belcourt to follow suit. Moore offered, “This would be devastating to Bellevue Avenue.”

Finally, the lawsuit argued that the welcome center would be an “accessory use” within the meaning of the zoning laws, which is only allowed for current museums in the sale of goods to the public, not food. Moore emphasized that food service is the primary purpose of the proposed welcome center, in that two-thirds of the facility is being planned for that purpose.

However, Judge Gallo dispensed with these arguments and granted the Preservation Society’s motion to dismiss the action. By filing suit in court instead of first going before the Zoning Board, BOPNA ran afoul of the legal doctrine known as “exhaustion of administrative remedies,” Gallo wrote, which in this case means that the board should have the “opportunity to consider the issues presented and to make its own determinations before the court intervenes.”

The judge elaborated, “This court is satisfied that all of BOPNA’s claims – which essentially raise issues regarding the interpretation of the zoning ordinance and its applicability to the Society’s proposed development – are within the jurisdiction of the local zoning agency. There is no question that the Zoning Board should be considering the issues raised in BOPNA’s complaint.”

However, hinting that the questions raised could eventually land back in court, Gallo continued, “If these issues need to be addressed by this court, they should be presented in the context of an appeal by an aggrieved party from a Zoning Board decision. The Court would then be in a position to review the Zoning Board’s determination of law and findings of fact with the benefit of a fully developed record.”

While disappointed with Gallo’s decision to jettison BOPNA’s complaint for now, Moore was pleased with one aspect of the ruling. “The judge is very clear that you have to go through the Zoning Board in order to build the welcome center,” he said. According to Moore, it had previously been implied by Newport Zoning Officer Guy Weston that going through that step may not be necessary.

In seeking the guidance of a declaratory judgment through its suit, Moore said that BOPNA “wanted to save time and money by having a judge give instructions as to what the law is. Now it will happen in reverse, and whatever happens at the Zoning Board will probably end up back in Superior Court.”

In light of another pending lawsuit filed by BOPNA regarding the welcome center, the Preservation Society’s Communications Manager Andrea Carneiro would not speculate on the nonprofit’s next move. “We are happy with the decision,” she said.

The second lawsuit argues that the Zoning Board was incorrect in January when it overturned a decision of the Historic District Commission which would have disallowed the construction of the welcome center as inconsistent with applicable historic standards. A hearing in that case is scheduled for Wednesday, Aug. 6, when Judge Gallo will not yet consider the substance of the suit but will instead address preliminary arguments advanced by the Preservation Society that BOPNA does not have standing to act on behalf of its members.

Meanwhile, the society is also before the Rhode Island Supreme Court with an appeal of the Newport City Council’s May 28 decision to deny a victualing license for food sales at The Elms and Marble House. Carneiro was uncertain of when arguments will be heard in that action.

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