2015-02-26 / Front Page

Association to Appeal Breakers Permit

By Barry Bridges

Although it was early January when the Newport Zoning Board of Review ruled in a four-to-one vote to grant a special use permit to the Preservation Society of Newport County for a welcome center at The Breakers, it was not until Monday, Feb. 23, that the written decision was issued and signed by board members.

That means that the appeals clock is now running. The Bellevue- Ochre Point Neighborhood Association (BOPNA), whose members live in the R-60 zone surrounding the property, has strongly lobbied against the project and has 20 calendar days from the date of the signatures to take the board’s ruling to court.

BOPNA President James Moore and the association’s attorney Daniel Prentiss confirmed with Newport This Week that an appeal is in the works. Moore reported that BOPNA’s directors agreed at their most recent meeting in February to take the next step.

“We will argue that the board acted unlawfully in that the zoning ordinance does not allow for the sale of food at museums,” said Prentiss. “They cannot grant a permit for activities that are precluded by the ordinance.”

Prentiss explained that BOPNA’s brief outlining their arguments will land in Superior Court, where a single justice will ultimately decide the issue. Although the Zoning Board and the city itself will be named as defendants in the administrative appeal, the city will not be required to file pleadings and may or may not choose to formally defend the decision of its zoning members. The Preservation Society, as an interested party, will most certainly file a response, Prentiss continued.

He described a process that could take up much of this year. “We will probably not have a resolution by the summer,” Prentiss predicted. “There will be a briefing schedule established and then the whole record will have to be compiled and submitted before the court begins its review. This takes time.”

A separate lawsuit by BOPNA which was originally filed last March and dismissed by the lower court in July is still pending on appeal before the Rhode Island Supreme Court. The dispute addresses some of the same themes that will be presented in the upcoming zoning appeal to Superior Court. “Either case could work in our favor,” said Moore. “We are hoping that we’ll win here in Newport in the administrative claim, but in the meantime the Supreme Court will be looking at exactly the same issues. The case to be resolved first is simply a matter of timing.”

The possibility exists that the unsuccessful party in the permitting appeal to Superior Court will also eventually take that matter to the state Supreme Court, resulting in two separate actions in that forum that could be consolidated.

Notwithstanding the uncertain outcome of the legal challenges, Moore said that the Preservation Society will have to take the additional step of securing a victualing license through the City Council in order to offer refreshment sales at the welcome center as planned.

Although the Society is free to apply for a building permit for the center’s construction, groundbreaking is complicated by the prospects of another court action. William Landry, attorney for the Preservation Society, indicated in January that a start date is uncertain considering the contingencies.

“There are practical aspects to the timing of construction and the investment of money when there is an appeal pending,” he said last month. “While we have confidence that the Zoning Board decision is well grounded, the Society is a good steward of its funds and has to proceed prudently.”

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