2014-12-04 / Front Page

Breakers Hearings Under Way

By Barry Bridges

Architect's rendering of the refreshment "servery" at the proposed welcome center at The Breakers. The prepared foods area would constitute approximately 535 square feet of the buildings 3,650-square-foot footprint. (Image courtesy of Epstein Joslin Architects) Architect's rendering of the refreshment "servery" at the proposed welcome center at The Breakers. The prepared foods area would constitute approximately 535 square feet of the buildings 3,650-square-foot footprint. (Image courtesy of Epstein Joslin Architects) The cafetorium of Pell Elementary School could have easily been mistaken for a courtroom on the evenings of Dec. 1 and 2 when attorneys for the Preservation Society of Newport County and the Bellevue Ochre Point Neighborhood Association (BOPNA) battled it out before the Newport Zoning Board of Review.

At the center of the proceedings was the contentious question of whether the board should issue a modified special use permit to allow for the construction of the long-proposed welcome center at the Society’s signature house museum, The Breakers.

BOPNA is opposed to the facility, maintaining that its food service would mean that a restaurant would be allowed in a residential neighborhood.

Guy Weston, Newport zoning officer, gives testimony on the second night of The Breakers hearing. Guy Weston, Newport zoning officer, gives testimony on the second night of The Breakers hearing. The permit is the final administrative approval needed from city boards, as the Society has already secured a certificate of appropriateness and the blessings of the Newport Planning Board and Rhode Island Historical Preservation and Heritage Commission.

Moreover, two lawsuits filed by BOPNA to stop the project were dismissed over the summer by Superior Court Justice Bennett Gallo. On the first night of the zoning hearings, the board declined to entertain a request by the association’s attorney, Daniel Prentiss, to postpone arguments until an appeal of one of those cases is resolved by the Rhode Island Supreme Court.

The Zoning Board balances several factors in deciding whether to grant a special use permit. The overarching standard is that the “proposed use [be] … in accord with the public convenience and welfare.” Consistent with that directive, the board examines the size and shape of the proposed structure; resulting traffic patterns; the nature of the surrounding neighborhood and the extent to which the use will be in harmony with the area; the proximity of dwellings, churches, schools, and public buildings; resulting fire hazards; the zoning ordinance; and conformance with Newport’s comprehensive plan.

Attorney William Landry zealously represented the interests of the Preservation Society, while Prentiss was equally passionate in arguing for BOPNA’s opposition.

Both sides presented testimony relevant to the board’s enumerated factors, but arguments on both nights centered mostly on the zoning component and whether food can be served by a museum in a residential district.

As the applicant for the special use permit, Landry was first to present his case before the board. His first witness was Alan Joslin of Epstein Joslin architects in Cambridge, Mass., who presented the welcome center’s design features through a slide presentation.

Joslin reminded the board that the goal of the project is to combine the ticketing tent, the portable toilets, the off-season ticketing structure, and the vending machine hut into one location, while also providing for landscaping to make the building harmonious with the neighborhood. He emphasized that it is “a facility that is not to be seen” and “will be embedded in such a way that it will have no impact on the historic vistas of the property.”

Next up to the podium was Dr. Ford Bell, president of the American Alliance of Museums. “Providing refreshments is very common in museums in the U.S. It’s very much a part of the experience,” he said. “Of the 50 most-visited accredited museums, 88 percent provide food service. Of the top 100, 82 percent provide food service.” Bell concluded that the proposal is “modest, minimalist, respectful and very restrained.”

Prentiss focused on zoning issues is his cross-examination of Bell.

“Would you agree that there are museums around the country that would like to serve food but can’t because of zoning?” Prentiss asked.

“I’ve never heard of it,” said Bell, although upon further questioning he conceded that zoning could limit some aspects of “normal operations.”

Landry called traffic engineer Michael Desmond, who testified on vehicle analyses that were undertaken on streets surrounding The Breakers; former fire marshal Michael Leber, who spoke to fire safety standards; Cynthia O’Malley, the Society’s director of retail sales, who described previous food programs at The Elms and Marble House; and real estate appraiser Thomas Sweeney, who presented maps of the Ochre Point neighborhood to demonstrate the welcome center’s compatibility. Sweeney described the area as “predominantly institutional [Salve Regina University]” with some residential properties. He concluded that the building “would not have any adverse impact on the surrounding area.”

The witnesses drew rigorous cross-examinations from Prentiss.

The meeting on Dec. 2 began with testimony from the Society’s Director of Museum Experience John Rodman, who clarified under questioning from Landry that estimates are that 30 sandwiches, 30 wraps, and 30 salads will be sold on a daily basis at the welcome center, in addition to snacks and bottled drinks.

Prentiss questioned the validity of those projections, which were based on food sales at The Elms and Marble House, but Rodman insisted that they were accurate estimates “based on our professional experience with the other properties that we have.”

The rest of the session was dominated by arguments over Roland Chase, a witness called by Prentiss to testify to provisions of Newport’s zoning ordinance. Chase, an attorney who has written and lectured on land use issues, is employed by Miller, Scott & Holbrook, a law firm which represented BOPNA in previous rounds of its opposition to the project.

Landry strongly objected to Chase, asserting a conflict of interest. Landry further stated that the lawyer’s comments would be irrelevant. “The board has a zoning officer and an attorney that advises it on legal matters,” he said. “If lawyers have opinions on legal issues, they file briefs. You’re being asked to take a brief in the form of testimony. This is entirely out of order.”

Christopher Kirwin, the board’s acting chair for the Society’s application, eventually agreed to hear what Chase had to say but advised the parties that “the board will give the testimony the weight it deserves.”

Through questioning by Prentiss, Chase offered his analysis that The Breakers exists as a nonconforming use that is prohibited from expanding to land not previously occupied. He also said that a separate provision of the zoning code does not authorize serving food in museums. But Chase’s comments were interspersed with vehement objections from Landry, with the attorneys frequently arguing over hearsay, the proper scope of the proceedings, and rules of statutory construction.

Prentiss will call additional witnesses when the series of hearings concludes on Monday, Dec. 8. The public will have the opportunity to make comments at that time, with each attorney also presenting closing arguments. That will give the board about a month to consider the evidence prior to issuing its decision on Jan. 5.

The concurring vote of four members of the five-member board is required to approve the Society’s application. In addition to Kirwin, voting board members are Heidi Blank, Donald Boucher, Robert Buzard and Michael Martin.

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