2014-12-24 / Front Page

Breakers Arguments Finalized

Attorneys File Welcome Center Briefs
By Barry Bridges

Following up on three nights of hearings in early December before the Newport Zoning Board of Review, attorneys from both sides of the welcome center debate have presented their final findings and written arguments for consideration.

The Preservation Society of Newport County is asking the board to issue a special use permit to operate a proposed visitors’ facility at The Breakers, its signature historic house museum, which would consolidate ticketing and restroom areas while also offering prepackaged sandwiches, snacks, and beverages to museum guests. The Society’s application actually seeks a modification to an existing permit that allows a vending machine shed near the mansion gates.

The Bellevue-Ochre Point Neighborhood Association (BOPNA), whose members live in the surrounding R-60 zone, has strongly lobbied against the petition.

Attorney William Landry, representing the Society, and attorney Daniel Prentiss, representing BOPNA, outlined their respective positions in lengthy memorandums submitted to the zoning office on Friday, Dec. 19. The documents echo the oral arguments made by each side during the 12 hours of proceedings earlier in the month.

Pursuant to §17.108.020G of the zoning laws, the board looks at several factors when it is asked to grant a special use permit. The overarching standard is that the “proposed use [must be] … in accord with the public convenience and welfare” after taking into account seven criteria: 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.

Since zoning is a significant part of the board’s analysis, whether Newport’s zoning code would permit food sales at the welcome center continues to be a point of contention.

BOPNA’s Prentiss says that serving food would make the facility a restaurant, which is prohibited in the R-60 neighborhood. He also argued that any food service on the property would contravene § 17.100.220 of the code, which, while enumerating six allowed uses for museums, does not specifically include the sale of food.

Prentiss asserted further that food sales at The Breakers would set a precedent for any museum in Newport to offer the same service. “Once a museum has opened a restaurant,” he noted, “there is nothing this board or the city can do in the future to reverse that development.”

“Make no mistake: approval of this application will make restaurant operation a legal, enforceable right for every museum in Newport,” Prentiss wrote. He also focused on the “ordinary meaning” of the regulations. “[T]here should not be any legitimate dispute that the proposed food sale and consumption operation at the welcome center is a restaurant within any reasonable understanding of that word,” he said.

Landry countered that under the zoning laws, a “restaurant” is an establishment whose “principal business is the sale of food.” He maintained that “the refreshment service aspect is, by all metrics, not the principal activity of the welcome center.” It is “a subordinate, subsidiary aspect of The Breakers… representing a minority of its total area.”

In describing the limited sandwich and snack selection envisioned for the welcome center, Landry emphasized that such food service would be allowed as a part of “museum operations” under § 17.100.220. He pointed to the testimony of his expert witness, Dr. Ford Bell of the American Alliance of Museums, who said that the “sale of refreshments is a normal, customary aspect of museum operations” and is very common in the United States.

However, Prentiss rebuffed that idea, writing “there is no logic or justification for interpreting ‘museum operations’ to include sale of food… In Newport, the sale of food has never been a part of museum operations. The [Society’s] argument that the drafters of the… ordinance intended the phrase ‘museum operations’ to include retail sales of food is without any basis.”

Landry additionally said that concerns over a precedent are unwarranted. He stressed that each museum would need its own special use permit to expand its operations to include any type of food service and that “each application before this board stands on its own merits and is considered on its own unique facts and circumstances” with “no particular decision set[ting] precedent.” He also noted that a victualing license would be an additional administrative step.

Beyond the food question, Prentiss and Landry disagreed as to how the other relevant factors weighed in their favor.

Commenting on the surrounding neighborhood, Prentiss described the “predominantly quiet residential area” which is “a historic and cultural resource in its own right.” He said that “the residential use coexists in a careful balance with the more commercial uses associated with Salve Regina University and the [Society’s] mansion museums. Construction of the welcome center as planned will without question intensify the activity in the neighborhood and change its character.”

He also stated that “good zoning management and planning require balancing the needs of the different elements and constituencies that make up our city.” He did concede that “a well-designed, welcoming, and convenient welcome center is sorely needed” but said that “it should be… developed in partnership with all of the stakeholders and located where it will facilitate and encourage the use of public transportation and relieve city streets of some of the automobile traffic that plagues it during the summer.”

In his brief, Landry carefully described how the welcome center proposal satisfies each of the factors that the board will examine, and liberally quoted from the testimony of his witnesses who were called at the hearings.

Addressing BOPNA’s concerns about the neighborhood, Landry contended, “The R-60 zone in which The Breakers is located is not an exclusively residential zone, but is a mixed use zone in which both residential uses and institutional uses are either permitted as a matter of right, or are conditionally permitted by special use permit.”

He described the diversity of possible uses allowed in the area by the zoning ordinance, such as churches, schools, parks, day care, municipal buildings, and universities. He wrote, “Given such a diversity of possible uses… the key is to find a balance that respects all of these potential uses. This is done by limiting scale and requiring proper buffering and screening to try to limit adverse impacts outside of the confines of the property on which the use is taking place. The proposal before the board has accomplished that.”

“The weight of the evidence presented [in favor of the Society’s application] supports each of the seven criteria in § 17.108.020G for determining whether an application is ‘in accord with the public convenience and welfare,’” Landry concluded.

With oral and written arguments wrapped up, the fate of the welcome center’s final administrative approval is now in the hands of the Zoning Board, which is expected to announce its decision on the special use permit by Jan. 5.

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