2017-01-12 / Front Page

High Court Delivers a Win for Welcome Center

By Barry Bridges

The Rhode Island Supreme Court has upheld a lower judge’s ruling that the Newport Zoning Board of Review is the appropriate arbiter of the zoning issues raised by the Bellevue Ochre Point Neighborhood Association (BOPNA) as it opposed the construction of the proposed welcome center at The Breakers. In a win for The Preservation Society of Newport County (PSNC), the justices rejected BOPNA’s argument that the courts are the proper forum to interpret zoning laws.

“The Supreme Court agreed that the Zoning Board is the body that should decide the welcome center’s future under Newport’s zoning laws,” said PSNC attorney William Landry. “While not a complete resolution to litigation, this is a major step.”

The ruling announced on Monday, Jan. 9, brings an end to one of two welcome center lawsuits related to zoning, while a decision in a third suit on victualing licenses at PSNC properties is imminent.

The roots of this week’s holding can be found in a petition filed by PSNC with the Newport Historic District Commission in May of 2013, which sought a certificate of appropriateness to build the welcome center. While the HDC denied the application, the Zoning Board later overturned that decision. Soon thereafter, BOPNA, whose members are neighbors of The Breakers who live in the R-60 zoning district, brought an action with the Superior Court seeking a declaratory judgment that the welcome center was prohibited under various provisions of the city’s zoning ordinance.

PSNC moved to dismiss the complaint, contending that judicial intervention was unwarranted before the zoning process could run its course. Superior Court Justice Bennett Gallo agreed, concluding that the claims put forth by BOPNA were “within the jurisdiction and authority of Newport zoning officials.” Accordingly, he dismissed the court case in July of 2014.

A few months later, the Zoning Board vetted the welcome center proposal in three lengthy public hearings and had its say, granting the PSNC a special use permit in January of 2015.

But BOPNA appealed Gallo’s dismissal to the Supreme Court, which culminated in the holding announced this week. After examining appellate briefs and entertaining oral arguments in October, the five justices of Rhode Island’s court of last resort held that the lower judge was correct in his conclusion that the Zoning Board should have its say without judicial interference.

“We are satisfied that the hearing justice properly determined that the Zoning Board had the authority to decide the issues raised in BOPNA’s complaint,” wrote Associate Justice Gilbert Indeglia, indicating that the questions were not for resolution in court.

With the Supreme Court’s announcement on Monday that the suit’s dismissal would stand, PSNC said in a statement, “Today’s decision upholding the Newport Zoning Board’s jurisdiction and authority is a very important step on the road to construction of a welcome center at The Breakers. We are pleased that the court agreed with the Superior Court that the Newport Zoning Board was the appropriate body to rule on the Preservation Society’s application for the welcome center, which the board approved by a 4-1 vote… after conducting evidentiary hearings and considering extensive testimony, exhibits, arguments and written submissions.”

Waiting in the wings, however, is another proceeding that could impact plans for the welcome center. BOPNA brought a separate lawsuit challenging the special use permit approved by the Zoning Board in 2015. That action met a similar fate in the lower court when it was dismissed by Superior Court Justice Walter Stone. He found that the association did not have standing to sue since it does not own property. BOPNA is petitioning the high court for a discretionary review of Stone’s decision to throw the case out, but the justices have not indicated whether they will give it a second look.

BOPNA attorney Daniel Prentiss is frustrated by Monday’s ruling, and told Newport This Week that the justices were too quick to dispatch with his premise that the courts are in the best position to interpret zoning laws. However, he is counting on a more favorable result in the association’s favor if the high court agrees to scrutinize Stone’s dismissal.

“I’m hopeful they’ll recognize the public importance of the issues involved,” he said. “If this zoning decision is never reversed, then every museum in Newport will have the right to open a restaurant.”

Additionally, the Supreme Court is expected to rule soon on a case involving the Newport City Council’s denial of victualing licenses that would have allowed PSNC to serve refreshments at The Elms and Marble House. PSNC took the city to court, asserting that the council inappropriately weighed zoning issues when considering the licenses, rather than limiting their analysis to health and safety concerns. The outcome on the licenses would presumably be applicable to The Breakers as well, since PSNC is planning to sell prepackaged snacks and refreshments at the welcome center.

With the unresolved legal claims, Landry intimated that the PSNC is proceeding carefully at this point. “Movement continues in terms of architectural plans and working with contractors,” he said, “but there has been no decision made on when actual construction will begin.”

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