The Preservation Society of Newport County et al.
City Council of the City of Newport et al.
Council of the City of Newport
Petitioners: William R. Landry, Esq. Matthew H. Leys, Esq.
Attorney(s) on Appeal
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
WILLIAM P. ROBINSON ASSOCIATE 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. 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.
On May 7, 2014, petitioners jointly filed applications with
the Council for victualing licenses. In their applications, they
proposed the following under the heading "Type of
"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
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."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). 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 ...