2015-06-25 / Front Page

Victualing Appeal at High Court

PSNC Says Council Acted Beyond its Scope
By Barry Bridges

In a development that could have implications for the planned welcome center at The Breakers, the Rhode Island Supreme Court has decided to weigh in on the Newport City Council’s 4 – 3 vote last May to deny a victualing license that would have allowed the Preservation Society of Newport County to continue with sales of pre-packaged sandwiches and snacks at Marble House and The Elms.

The Society’s attorney, William Landry, filed a petition with the high court last June soon after the council’s action. He asked the justices to review the decision since state statutes do not specifically proscribe an appeal mechanism from such a denial, making the jurisdiction of lower tribunals “questionable at best.”

Exercising its discretionary jurisdiction on whether to hear certain cases, the Supreme Court has now agreed to look into the question of whether the council acted properly. It has requested that the City Clerk’s office provide all documents relevant to last May’s proceedings.

On May 28, 2014, Kathryn Leonard, Justin McLaughlin and Jeanne- Marie Napolitano, along with then- Councilor Michael Farley, joined in a majority and voted against the Society’s two victualing applications for the house museums. During the lengthy public hearing and accompanying witness testimony, part of the discussion focused on whether the Newport zoning ordinance allowed for food sales at the properties and whether the council was the appropriate body to entertain such questions.

Landry argued at the time that while zoning is relevant, the Zoning Board exclusively spoke to those issues. He maintained that the council was limited to considering whether proper compliance with local health and safety requirements was shown.

That theme re-emerged in Landry’s appellate brief, where he contends that in rejecting the two petitions, councilors went beyond an examination of health and safety and improperly based their decision on “vaguely articulated zoning issues.” He is asking the Supreme Court to “lend clarity” by quashing the outcome or requiring city leaders to reconsider.

“It’s a question of process,” Landry told Newport This Week. “The city council doesn’t decide points about zoning.”

Landry’s 28-page brief buttresses his statements, asserting that while a victualing applicant must separately “make its peace” with the zoning authorities, the state’s highest court “has consistently held that zoning issues – as opposed to conditions inimical to public health – are not a proper part or subject of the jurisdiction of City and Town Councils over victualing licenses.” The brief concludes that the “4 – 3 decision to deny the business license based on matters related to zoning was, quite simply, beyond the council’s proper jurisdictional scope.”

Landry further claims that the Society satisfied all relevant health and safety requirements and that the requests should have been approved. During last year’s hearing, he presented two witnesses who testified on the health and safety of the food service at The Elms and Marble House, such as state certifications, handling practices, preparation facilities, and temperature and refrigeration protocols. “There was no evidence whatsoever that there were any health or safety issues associated with either application,” Landry writes. “Indeed, at the commencement of the hearing one council member moved to dispense with testimony regarding health and safety, as it was not of concern.”

Newport interim Solicitor Christopher Behan is aware of the high court’s pending review but is not yet certain how the city will proceed or how aggressively the action of the council will be defended. “We will have to evaluate the degree to which we’ll participate,” he said in a telephone conversation.

There is no timetable for how quickly the justices will act, and neither Landry nor Behan is certain whether the court will request supplemental briefing or require oral arguments on the issues presented.

As to the impact on refreshments being served at a future welcome center, Landry reported, “We haven’t decided when we will apply for a license for The Breakers, but the Supreme Court’s review of this petition will certainly clarify the scope of what the City Council can undertake when they review a victualing application.”

The case is in addition to two separate lawsuits filed by the Bellevue Ochre Point Neighborhood Association (BOPNA) in opposition to plans at The Breakers. Those cases are working their way through the judicial system. One maintains that the welcome center would violate provisions of the zoning ordinances, but it was dismissed by a trial judge. That disposition has been appealed to the Supreme Court. A second BOPNA suit, challenging the Zoning Board’s January decision to grant a special use permit for the welcome center, is presently pending in Superior Court.

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