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Bellevue-Ochre Point Neighborhood Association v. Preservation Society of Newport County

Supreme Court of Rhode Island

January 9, 2017

Bellevue-Ochre Point Neighborhood Association
v.
Preservation Society of Newport County.

         Newport County Superior Court NC 14-98 Associate Justice Bennett R. Gallo.

          For Plaintiff: R. Daniel Prentiss, Esq.

          For Defendant: William R. Landry, Esq. Matthew H. Leys, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Gilbert V. Indeglia Associate Justice

         The plaintiff, Bellevue-Ochre Point Neighborhood Association (BOPNA or plaintiff), appeals from the Superior Court's dismissal of its declaratory judgment action in favor of the defendant, the Preservation Society of Newport County (the society or defendant). This appeal arises from the society's application for the construction of a Welcome Center (Welcome Center) near the entrance of the Newport mansion, the Breakers. The proposed Welcome Center would be approximately 3, 650 square feet and would contain areas for ticket sales, refreshment sales, and restrooms.

         BOPNA initiated a declaratory judgment action in the Superior Court, pursuant to the Uniform Declaratory Judgments Act (UDJA), G.L. 1956 chapter 30 of title 9, seeking various declarations that the Welcome Center is prohibited under the City of Newport Zoning Ordinance (the zoning ordinance). The society moved to dismiss the complaint pursuant to Rule 12(b)(1), (6) of the Superior Court Rules of Civil Procedure and § 9-30-6, and plaintiff objected.

         A justice of the Superior Court heard the matter and found for the society. He concluded that the issues raised in BOPNA's complaint were "within the jurisdiction and authority of the Newport zoning officials to determine * * * and inappropriate for resolution in an action seeking declaratory judgment." Accordingly, the hearing justice declined BOPNA's request for declaratory judgment and dismissed the action. On September 9, 2014, plaintiff filed the present appeal. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.

         I Facts and Travel

         The Breakers is a well-known mansion in Newport, Rhode Island. Originally the Vanderbilt family's summer cottage, Gladys Vanderbilt opened the extravagant seventy-room mansion to the public in 1948 for the Society to operate as a museum. In 1972, the society purchased the Breakers from Gladys Vanderbilt's heirs. At present, it continues to operate the Breakers as a museum, attracting hundreds of thousands of visitors each year.

         When the society first began operating the Breakers as a museum, its use was permitted by right pursuant to the zoning ordinance. In 1977, however, the zoning ordinance was amended to permit museums in the R-60 zone where the Breakers is located through a "special exception" granted by the City of Newport Zoning Board of Review (the zoning board).[1] In 1997, the society applied for a special use permit to construct a twelve-foot-by-twelve-foot shed on the Breakers to house a vending machine for patrons awaiting entrance. The shed was to "be located in existing natural screening and * * * not be visible off the premises." The zoning board granted the special use permit.

         In May 2013, the society initiated the administrative process for the construction of the Welcome Center by applying to the Newport Historic District Commission (HDC) for a certificate of appropriateness.[2] After the HDC denied its application, the Society appealed to the zoning board. In a decision dated March 1, 2014, the zoning board reversed the HDC's decision and found that the proposed Welcome Center complied with Newport's historic zoning provisions.[3]

         On March 7, 2014, BOPNA, a nonprofit corporation comprised of property owners and residents in Newport's Bellevue-Ochre Point Neighborhood, brought this declaratory judgment action in the Superior Court.[4] In its action, BOPNA sought the following declarations: the Breakers is a lawful nonconforming use, and the Welcome Center's construction would be a prohibited movement or change in the land's nonconforming use; the Welcome Center will house a restaurant, and the zoning ordinance prohibits restaurant operation on museum property; and, lastly, the Welcome Center is an unpermitted accessory use on the Breakers property.

         The society moved to dismiss pursuant to Rule 12(b)(1), (6), and § 9-30-6. In support of its motion, the society argued that "BOPNA's complaint fail[ed] to present a ripe, justiciable claim properly cognizable under the Uniform Declaratory Judgments Act." The defendant asserted that, under the zoning enabling act, judicial intervention in zoning matters should be reserved until the local zoning process is finished. It argued that the Superior Court's jurisdiction is "appellate in nature" and "designed to adjudicate whether or not the [z]oning [b]oard exceeded its legislative authority." Additionally, the society argued that BOPNA lacked standing under the UDJA because it did not suffer an injury entitling it to relief. Rather, "[BOPNA] place[d] the 'cart' well before the 'horse'" by "speculat[ing] and assum[ing] that the [z]oning [b]oard" will not consider their concerns about the Welcome Center. BOPNA opposed the motion, arguing that its complaint presented "a justiciable controversy ripe for judicial determination." It further asserted that a civil action in the Superior Court was "the only avenue" to resolve the issues raised in its complaint.

         A justice of the Superior Court heard the parties on the society's motion to dismiss on June 2, 2014, and, on July 18, 2014, he granted the motion.[5] In his written decision, the hearing justice found it unnecessary to address the issue of BOPNA's standing because he determined that the issues raised in its complaint were inappropriate for a declaratory judgment action, as the zoning board could and should resolve them.

         The hearing justice also discussed BOPNA's failure to exhaust its administrative remedies. He noted the exceptions to the doctrine of exhaustion of administrative remedies: when a complaint seeks a declaration that an ordinance or rule is unconstitutional or exceeds statutory powers or that the agency lacks jurisdiction. The hearing justice concluded that neither of the exceptions applied because the zoning board possessed the jurisdiction to determine the complaint's issues. He noted that both the Zoning Enabling Act, G.L. 1956 § 45-24-57, and the zoning ordinance grant local zoning officials the authority to interpret zoning ordinances, and, therefore, BOPNA's claims seeking interpretations of the zoning ordinance fell squarely within the zoning board's authority. The hearing justice found that "[a]ll the declarations that BOPNA requests this [c]ourt to make are part and parcel of an everyday review of a building application by municipal zoning officials: in the first instance by the zoning officer, then on review by the [z]oning [b]oard." Accordingly, he declined BOPNA's request for declaratory judgment and granted the society's motion to dismiss. On September 9, 2014, BOPNA filed this appeal.

         While this appeal was pending, the society filed an application with the zoning board for a modification of its 1997 special use permit. After conducting evidentiary hearings and considering testimony, exhibits, arguments, and written submissions, the zoning board issued a written decision granting the society's special use permit application. The zoning board discussed the seven factors[6] it considered in reaching its decision, and ultimately concluded that the Welcome Center was "in accord with the public convenience and welfare."

         In its decision, the zoning board also addressed-and rejected-many of the arguments raised in BOPNA's complaint. It rejected BOPNA's contention that the Breakers is a nonconforming use that cannot be altered or moved, noting that the Breakers was granted a special use permit in 1997 and, thus, is not a nonconforming use. It addressed BOPNA's argument that the zoning ordinance prohibited "restaurants" in the R-60 district, noting that neither the Breakers nor the Welcome Center would be "an establishment whose principal business is the sale of foods." Rather, "[t]he refreshment service aspect is, by all metrics, not the principal activity of the [W]elcome [C]enter." Specifically, the zoning board noted that the Welcome Center would sell only prepackaged items, would not serve alcohol, and would not contain a kitchen, food preparation facilities, a stove, a microwave, or a dishwasher. Additionally, it would sell refreshments only to ticketed guests during normal museum hours and would not have special events, functions, live music, or entertainment. Further, the Welcome Center would be "concealed in a grove of trees and will not be seen - or heard - from Ochre Point Avenue or any surrounding properties." Accordingly, the zoning board granted the society's special use permit application.[7]

         On appeal, BOPNA argues that the hearing justice was required to hear and decide its request for declaratory judgment because an interpretation of the zoning ordinance is "to be determined exclusively by the courts." BOPNA also argues that the doctrine of exhaustion of administrative remedies does not apply. Lastly, BOPNA asks this Court to "go beyond the immediate issues of the [S]uperior [C]ourt's error in dismissing BOPNA's complaint, and determine the underlying issues of the interpretation of the Ordinance." Specifically, it asks us to determine whether the zoning ordinance prohibits the Welcome Center because: the Breakers is a nonconforming use within the R-60 zone and construction of the Welcome Center would constitute a prohibited movement or change in a non-confirming use; the Welcome Center would house a restaurant that the zoning ordinance prohibits on museum property; and the Welcome Center is a prohibited accessory use under the zoning ordinance.

         II

         Standard ...


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