2016-09-08 / Front Page

Breakers Awaits High Court

By Barry Bridges

In the 20 months since the Newport Zoning Board of Review approved a special use permit for the Preservation Society of Newport County to construct a welcome center at The Breakers, attorneys for both PSNC and the Bellevue-Ochre Point Neighborhood Association have been writing briefs and honing their arguments as they prepare to make their respective cases at the Rhode Island Supreme Court.

If built, the welcome center would consolidate ticketing and restroom areas into a new 3,700-square-foot facility on the grounds of one of PSNC’s signature properties and would also make prepackaged sandwiches, snacks, and beverages available to over 400,000 annual visitors.

BOPNA, whose members reside in Newport’s R-60 zone near the mansion, was unsuccessful in halting the project as local boards weighed in, but has taken its fight to the courts.

Both sides will have one last forum to air their differences when the state’s high court entertains oral arguments in at least two separate cases this fall.

The first involves BOPNA’s assertion that Newport’s zoning ordinance precludes the construction of the welcome center. The action was dismissed in 2014 by Superior Court Judge Bennett Gallo, who reasoned that the questions raised by the litigation should have first gone before the city’s Zoning Board. There is an appeal by right to the Supreme Court of that dismissal.

The second case that will be heard this fall involves the Newport City Council’s 2014 denial of a victualing license that would have allowed the PSNC to serve refreshments at The Elms and Marble House, a decision which could impact future plans for the welcome center. PSNC sought judicial review of the city’s action, asserting that the council went beyond its proper scope of examining health and safety issues when considering the application. The high court agreed to hear the question.

Meanwhile, in yet a third matter, BOPNA appealed the Zoning Board’s issuance in January 2015 of the special use permit needed before PSNC could begin work on the welcome center. The civil suit was dismissed by Superior Court Judge Walter Stone, who concluded that because the association doesn’t own property, it did not suffer an injury from the board’s approval of the permit and therefore did not have standing to bring the issue to court. Unlike the Gallo decision, there is no automatic right of appeal in this instance, and the Supreme Court has not yet indicated whether it will re-visit Stone’s analysis.

Lauren Jones, an attorney for BOPNA, told Newport This Week that all three cases have been fully briefed by the parties, and he is fairly confident that the Gallo dismissal and victualing question will be heard by the justices this fall.

“They will likely be on the fall’s second calendar, which would be on Oct. 25, 26, or Nov. 2 or 3,” he predicted. “But if they don't make those dates, it will be Nov. 29, 30 or Dec. 7 or 8.”

PSNC attorney William Landry agreed that the exact dates should be known soon. “We expect the cases will be placed on the calendar in the fall.” He added that the court will likely schedule the separate proceedings “in reasonable proximity to each other” so that the justices can better understand the whole picture.

Both attorneys estimated that a written decision would be issued 60 to 90 days after arguments, a typical time frame for deliberations at the appellate level.

Landry confirmed that he would be making oral arguments for PSNC, while Jones indicated that he is uncertain who will be presenting BOPNA’s case. Attorney Daniel Prentiss has represented the association for several years in its opposition to the welcome center, and remains very involved, according to Jones.

Further, Jones declined to comment with Newport This Week when asked if the court is likely to side with BOPNA after the association’s disappointments with the Zoning Board and in the lower court.

Fanchon M. “Monty” Burnham, who took the reins as chair of the Preservation Society in June, recently wrote an update to supporters that “We expect all three of these lawsuits to be resolved in our favor this fall. Once we have received the court’s approval, we can begin construction on the welcome center and again seek the necessary approvals for serving refreshments.”

With success in getting the needed local permits, there is nothing officially standing in the way of shovels hitting the ground at The Breakers, but consistent with past statements, Landry noted that “normally it’s prudent to have litigation cleared up first.”

“There are no immediate plans to commence construction given what we think to be the imminent resolution of these matters,” he said.

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