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The Preservation Society of Newport County v. City Council of City of Newport

Supreme Court of Rhode Island

March 15, 2017

The Preservation Society of Newport County et al.
v.
City Council of the City of Newport et al.

         City Council of the City of Newport

          For Petitioners: William R. Landry, Esq. Matthew H. Leys, Esq. Attorney(s) on Appeal

          For Respondents: Jeremiah C. Lynch, III, Esq. Lauren E. Jones, Esq. Joseph J. Nicholson, Jr., Esq. R. Daniel Prentiss, Esq.

          JUSTICES SUTTELL, C.J., GOLDBERG, FLAHERTY, ROBINSON, AND INDEGLIA, JJ.

          OPINION

          WILLIAM P. ROBINSON ASSOCIATE JUSTICE.

         Justice Robinson, for the Court. The petitioners, the Preservation Society of Newport County and Newport Catering, Inc., d/b/a Glorious Affairs, Ltd., seek review on certiorari of a May 2014 decision of the respondent, the City Council of the City of Newport (the Council), denying two applications for victualing licenses.[1] In their applications, the petitioners proposed to sell pre-wrapped food prepared off-site, along with snacks and nonalcoholic drinks, at two historic mansions in Newport: The Elms Carriage House (The Elms) and the Marble House Chinese Tea House (Marble House). On appeal, the petitioners contend that the Council impermissibly relied upon zoning considerations as its basis for denying their applications for victualing licenses; they further argue that, pursuant to § 5.72.020 of the Code of Ordinances of the City of Newport, the Council was required to consider only health and safety issues in deciding whether to issue or deny the licenses. For the reasons set forth in this opinion, the petition for certiorari is granted, and the decision of the Council is quashed. The Council is directed to issue the licenses forthwith, absent any compelling evidence of significant health and safety issues.

         I

         Facts and Travel

On May 7, 2014, petitioners jointly filed applications with the Council for victualing licenses.[2] In their applications, they proposed the following under the heading "Type of BUSINESS:"
"Sale at [The Elms and Marble House] museum of pre-wrapped sandwiches, wraps and salads prepared off-site, soft drinks (including coffee and tea) and other snack foods to ticketed museum guests of the Preservation Society."

In addition, petitioners stipulated that at no time would there be kitchen facilities or table service on the premises. Various Newport city officials-including the fire marshal, the building official, and the zoning enforcement officer-indicated in writing that they approved of petitioners' applications.

         On May 28, 2014, at a Newport City Council hearing, the Council reviewed petitioners' applications for victualing licenses. The zoning enforcement officer of Newport, Guy Weston, testified that, in his judgment, the above-referenced applications are "approved for zoning" because they "conform[] with the [Newport] zoning code;" specifically, he indicated that "what [petitioners are] applying for" is a "permitted, customary accessory use to the museum."[3]Throughout Mr. Weston's testimony, Councilors Michael Farley, Justin McLaughlin, and Kathryn Leonard repeatedly questioned and expressed disagreement with his interpretation of the Newport zoning ordinance (viz., his view that petitioners' proposed food service constituted an accessory use to a museum).[4] In response, Mr. Weston expressly noted that the Council was not authorized to decide zoning matters:

"[MR. WESTON]: * * * What you are doing is actually illegal under your own ordinance. Again, you established a [zoning officer] * * * who interprets the code and renders a decision. Under state law and under our zoning code, if a person isn't happy with that, a certain person is ...

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