2016-10-27 / Front Page

High Court Hears Welcome Center Case

By Barry Bridges

Attorneys for the Preservation Society of Newport County, the Bellevue-Ochre Point Neighborhood Association, and the City of Newport appeared before the five justices of the Rhode Island Supreme Court on Tuesday, Oct. 25, and presented their competing arguments in two court cases that involve PSNC properties.

The first case relates to zoning and the welcome center proposed for The Breakers, while the second concerns the Newport City Council’s denial of victualing licenses needed for food service at The Elms and Marble House.

In both matters, the focus on Tuesday was on narrow procedural issues and applicable precedent. Having thoroughly reviewed the briefs previously submitted by the parties, the justices took the lead in asking questions to flesh out the attorneys’ positions and setting the parameters of their arguments.

With the welcome center controversy, BOPNA filed a civil claim against PSNC in 2014, seeking a trial court’s declaration that Newport’s zoning ordinance precluded the facility’s construction. But the action was dismissed by Superior Court Judge Bennett Gallo, who declined to impose a judgment. He reasoned that BOPNA had not exhausted its administrative remedies prior to going to court, since the zoning questions it raised had not been addressed by the Zoning Board. The case ended up on the Supreme Court docket when the association appealed the dismissal.

BOPNA attorney Daniel Prentiss worked to convince the five justices that contrary to the lower judge’s conclusion, the courtroom is the proper place to adjudicate zoning laws. “Zoning boards are not equipped to apply the canons of statutory construction… and they have no jurisdiction to interpret law,” he said.

But the justices showed some skepticism with that reasoning. Justice Maureen McKenna Goldberg countered, “Zoning boards deal with these applications all the time,” while Justice William Robinson added, “Aren’t zoning board’s competent in a legal sense to grapple with these issues?” Goldberg noted that the lower judge’s dismissal appeared to be a proper exercise of his discretionary authority.

At his turn at the lectern, PSNC attorney William Landry asserted that Gallo was correct to dismiss the case based on principles of ripeness and comity. “Other things needed to happen before the court got involved in this process,” he said.

Beyond the procedural question of the proper forum to hear the zoning challenge, the attorneys briefly delved into the substance of the underlying dispute over the welcome center. As he did in local administrative proceedings, Prentiss insisted that Newport zoning laws do not allow museums to sell food, and that opening that door at The Breakers would mean that every museum in the city would be able to do the same.

“That is not a valid argument,” said Landry. “Special use permits rest on their own facts. Anyone seeking the sale of food would have to seek a special use permit… and satisfy the seven criteria in the ordinance. This is no license to have a McDonald’s in every museum in Newport.”

The second case heard on Tuesday involves the Newport City Council’s 2014 denial of a victualing license that would have allowed PSNC to serve refreshments at The Elms and Marble House, a determination that could impact future operational plans for the welcome center.

PSNC sought judicial review of the decision, asserting that the council went beyond its proper scope of examining health and safety issues when weighing the application. The high court agreed to take a second look.

“When a city considers a victualing license, it should not consider zoning,” said Landry, who has consistently maintained that the city improperly looked at zoning considerations in weighing the license request.

“A city council can’t trump other boards that have certain jurisdiction. The council is not a roving commission to take over everyone else,” he continued. “Public health concerns must dictate licensing, not zoning.”

This time, Goldberg directed her attention to Landry. “Councils don’t make decisions in a vacuum,” she said. “Your case seems to say that they are cabined to health and safety issues. But they’re not potted plants up there.”

“No, but they can hijack someone else’s jurisdiction,” Landry responded.

Attorney Jay Lynch spoke for the City of Newport, arguing that the council’s rejection of the victualing license was within its jurisdiction. “The PSNC is trying to force the City Council to approve a victualing license when the [Rhode Island] Board of Health says it’s fine,” he said. “But municipalities are not rubber stamps for the Department of Health.” In his appellate brief, Lynch wrote that the council “took a broad view of whether the licenses would serve the public welfare [and] found that the proposed licenses would adversely impact the surrounding residential properties, potentially harming existing businesses.”

BOPNA intervened in the licensing case as an interested party. On this front, another association attorney, Lauren Jones, contended that Newport zoning laws prohibit food service in museums and it therefore makes sense that the city would decline to grant a license to allow the practice. He wrote in his brief, “It cannot be that zoning restrictions on uses of property can be evaded by the simple expedient of obtaining approval from the Department of Health.”

The Supreme Court justices are expected to release written decisions on the two cases in 60 to 90 days.

Meanwhile, in a third legal proceeding, BOPNA objected to the Zoning Board’s issuance of a special use permit in January 2015 for the welcome center. The association’s subsequent civil suit was dismissed by Superior Court Judge Walter Stone, who concluded that because BOPNA doesn’t own property, it didn’t have standing to bring the matter to court. The Supreme Court has not indicated whether it will review this case in addition to the two heard on Tuesday.

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