                                                                  Supreme Court

                                                                  No. 2014-191-M.P.

The Preservation Society of Newport County      :
                 et al.

                    v.                          :

City Council of the City of Newport et al.      :




               NOTICE: This opinion is subject to formal revision before
               publication in the Rhode Island Reporter. Readers are requested to
               notify the Opinion Analyst, Supreme Court of Rhode Island, 250
               Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
               3258 of any typographical or other formal errors in order that
               corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2014-191-M.P.

The Preservation Society of Newport County          :
                 et al.

                    v.                             :

City Council of the City of Newport et al.         :


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

                                          OPINION

       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

1
        Section 5.72.010 of the Code of Ordinances of the City of Newport defines a “Victualer”
as “a restaurant, coffee shop, cafeteria, lunch cart, delicatessen, caterer, ice cream parlor, cafe,
bar, luncheonette, tavern, sandwich stand, soda fountain, and all other types of eating or
drinking establishments.”
                                                 -2-
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.”




2
        Section 5.72.020 of the Code of Newport Ordinances sets forth “[t]he following
regulations * * * as prerequisites to the issuance of a victualing license by the [City Council]:”

                 “A. The issuance of a victualing license is subject to the
                 compliance by the applicant with all state and local building and
                 fire prevention codes as well as the inspection and approval of the
                 state department of health according to state law, [all of which
                 must be presented in the applicant’s report to the Council].
                 “B. The applicant * * * must appear in person before [the
                 Council] when the application is considered.
                 “C. With the application presented to [the Council], the following
                 information must be provided: 1. A detailed site plan showing the
                 premises, interior and exterior, and parking areas; 2. A
                 description and/or rendering of the architecture to be used; 3. A
                 detailed description of the manner in which such license is to be
                 used; 4. The proposed seating capacity; 5. Parking availability; 6.
                 Whether or not a liquor license for the same premises is being
                 applied for by the applicant; 7. If a liquor license is not being
                 applied for, whether or not a liquor license for the same premises
                 will be applied for in the future by the applicant; and
                 8. The estimated monetary investment involved.”


                                                 -3-
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:




3
       Counsel for Bellevue-Ochre Point Neighborhood Association, which organization was
granted intervenor status, argued that petitioners’ proposed food service is not a permitted
accessory use with respect to museums in a residential zoning district. He further asserted that
the Council was allowed to take into account zoning considerations in deciding whether to issue
or deny victualing licenses.
4
        Immediately prior to a vote by the Council on the issue of whether to grant or deny
petitioners’ applications, Council Chair Henry Winthrop made the following remarks:

               “Laws are open to interpretation. They’re not written so specific
               that anybody can be a lawyer, or a judge, or for that matter a
               zoning officer. Our zoning officer [Guy Weston] has interpreted
               the law to say that serving sandwiches and soft drinks in a museum
               is an accessory use. He is the staff person that I rely on for the
               information. * * * Guy said that the only grounds on which we
               have to deny this license is on safety and health. I think everybody
                                                 -4-
                 “[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 able to appeal to a certain body. [The
                 Council] is not that body.

                        “* * *

                 “[MR. WESTON]: Again, * * * you’re getting into the [zoning]
                 issues that aren’t to be dealt with here before the City Council. I
                 mean, if you want to, as a private citizen, file an appeal of my
                 approval of [the instant applications], then we’ll take it to the
                 Zoning Board. That is the proper forum where we can argue these
                 points.”

       Thereafter, counsel for petitioners stated that he was prepared to make a presentation with

respect to “health and safety issues * * * because there is nothing further that is relevant.” He

then explained that the “Council can deny a [victualing] license for reasons related to health and

safety, [but] not for zoning issues.” Nevertheless, Councilor Jeanne-Marie Napolitano opted to

express her concern about zoning issues.

       In view of the disagreement about the pertinence of zoning considerations, and for the

purpose of “present[ing] a record,” counsel for petitioners requested that his two witnesses be

permitted to testify. Those two witnesses did testify at some length, focusing on health and

safety issues.    However, for present purposes, there is no need to discuss the substantive

testimony of those two witnesses. It should also be noted that, in addition, the Council heard

brief comments from numerous members of the public supporting and opposing petitioners’

applications for victualing licenses.5



                 in this room is nodding their head and saying safety and health is
                 not an issue. For that reason, I will vote to approve the license.”
5
      Some members of the public voiced concerns about increased traffic, adverse
consequences for local restaurants, and food service operations in residential areas.
                                                 -5-
       By a vote of four to three, the Council denied petitioners’ applications for victualing

licenses.6 Subsequently, the Newport City Clerk sent a letter (dated May 30, 2014), addressed to

petitioners and consisting of but a single sentence, which read as follows:

               “The Newport City Council, at its meeting on Wednesday, May
               28, 2014, denied approval of Victualing Licenses applied for
               jointly by Barbara Howlett of Newport Catering, d/b/a Glorious
               Affairs, and the Preservation Society of Newport County, for the
               premises located at The Teahouse at the Marble House, 596
               Bellevue Avenue, and The Elms Carriage House, 367 Bellevue
               Avenue.”

       Thereafter, petitioners filed a petition for writ of certiorari, urging us to quash the just-

referenced decision of the Council. We granted that petition on June 8, 2015.

                                                II

                                       Standard of Review

       In reviewing a case that is before us pursuant to a writ of certiorari, “we restrict our

scrutiny of the record to the question(s) appearing in the petition.” Kent County Water Authority

v. State (Department of Health), 723 A.2d 1132, 1134 (R.I. 1999); see also Woodruff v. Gitlow,

91 A.3d 805, 809 (R.I. 2014). Our task is to “scour the record to discern whether any legally

competent evidence supports the lower tribunal’s decision and whether the decision-maker

committed any reversible errors of law in the matter under review.” Cullen v. Town Council of

Lincoln, 893 A.2d 239, 243-44 (R.I. 2006) (internal quotation marks omitted). “If legally

competent evidence exists to support that determination, we will affirm it unless one or more




6
       Councilors Farley, McLaughlin, Leonard, and Napolitano—each of whom expressed
various concerns, including with respect to zoning issues, at different points in time during the
hearing—voted against petitioners’ applications for victualing licenses. The remaining members
(Council Chair Winthrop and Councilors Marco Camacho and Naomi Neville) voted in favor of
granting the licenses.
                                                -6-
errors of law have so infected the validity of the proceedings as to warrant reversal.” Id. at 244

(internal quotation marks omitted).

                                                III

                                             Analysis

       Before this Court, petitioners contend that the Council’s decision must be quashed

because that body “exceeded its jurisdiction and applied inappropriate criteria” in denying the

sought-after victualing licenses.7 However, in order for a decision of this nature to be in a proper

posture for judicial review, we have consistently held “that municipal councils and boards acting

in a quasi-judicial capacity must make findings of fact and conclusions of law to support their

decisions.”8 Cullen v. Town Council of Lincoln, 850 A.2d 900, 904 (R.I. 2004); see also

Cranston Print Works Co. v. City of Cranston, 684 A.2d 689, 691 (R.I. 1996); Eastern Scrap

Services, Inc. v. Harty, 115 R.I. 260, 263, 341 A.2d 718, 720 (1975); Novak v. City Council of

7
         It is self-evident that the controversy concerning the vote of the Council in 2014 has long
since become moot because the one-year license period has long since passed. See Hallsmith-
Sysco Food Services, LLC v. Marques, 970 A.2d 1211, 1213 (R.I. 2009) (“This Court has
consistently held that a case is moot if the original complaint raised a justiciable controversy, but
events occurring after the filing have deprived the litigant of a continuing stake in the
controversy.”) (internal quotation marks omitted). However, notwithstanding that the case at bar
is moot, it should be recalled that we have recognized an exception to the mootness doctrine for
cases that are of extreme public importance and are capable of repetition yet evade judicial
review. City of Cranston v. International Brotherhood of Police Officers, Local 301, 115 A.3d
971, 977 (R.I. 2015). Especially in view of the manifest public interest in the instant licensing
issue, it is our opinion that this case falls within the parameters of the just-referenced exception.
See State Department of Environmental Management v. Administrative Adjudication Division,
60 A.3d 921, 925 (R.I. 2012); see also In re New England Gas Co., 842 A.2d 545, 554 (R.I.
2004).
8
       As we have repeatedly stated, city and town councils acting in a quasi-judicial capacity
are required to set forth factual findings and legal conclusions in support of their decisions for
the purpose of “facilitating judicial review, avoiding judicial usurpation of administrative
functions, assuring more careful administrative consideration, helping parties plan their cases for
rehearings and judicial review, and keeping agencies within their jurisdiction.” Cullen v. Town
Council of Lincoln, 850 A.2d 900, 904 (R.I. 2004); see Hooper v. Goldstein, 104 R.I. 32, 44, 241
A.2d 809, 815 (1968).
                                                -7-
Pawtucket, 99 R.I. 41, 44, 205 A.2d 589, 592 (1964). A written decision, although strongly

recommended, is not required; rather, this Court requires “the making of findings of fact and the

application of legal principles in such a manner that a judicial body might review a decision with

a reasonable understanding of the manner in which evidentiary conflicts have been resolved and

the provisions of the * * * ordinance applied.” Thorpe v. Zoning Board of Review of North

Kingstown, 492 A.2d 1236, 1237 (R.I. 1985); see also May-Day Realty Corp. v. Board of

Appeals of Pawtucket, 107 R.I. 235, 239, 267 A.2d 400, 403 (1970). Accordingly, we have held

that council members “must do more than make a motion and take a vote. The determination

must contain findings of fact which support the ultimate decision of the body.” Sambo’s of

Rhode Island, Inc. v. McCanna, 431 A.2d 1192, 1194 (R.I. 1981). We may, “where appropriate,

imply an ultimate finding from the action taken.” Hooper v. Goldstein, 104 R.I. 32, 45, 241

A.2d 809, 816 (1968). This is especially appropriate after a careful review of the proceedings

before the Council.

       After carefully reviewing the entire record, it is clear to us that the Council failed to

provide factual findings and legal grounds to support its decision denying the petitioners’

applications for victualing licenses. Neither the City Clerk’s terse denial letter of May 30, 2014

to the petitioners nor the transcript of the hearing before the Council contained a statement of the

reasons relied upon by the Council for its decision. The record reveals a failure on the part of the

Council to have cited “any provision of the * * * ordinances, or [even specify] any other legal

authority for that matter, upon which it based [the denial].”          Cullen, 850 A.2d at 905.

Although, in the course of the hearing, several council members did express concerns relative to

zoning, it is not possible to deduce from the record whether or not the members of the Council

constituting the majority relied upon those concerns as actual grounds to deny the petitioners’



                                                -8-
applications. See id. at 904-05; see also Cranston Print Works Co., 684 A.2d at 691. What is

clear, however, is the fact that the Council in 2014 was in derogation of its responsibilities for its

failure to have pointed to any meaningful evidence in the record relative to health and/or safety

concerns—which are, pursuant to § 5.72.020 of the Newport Ordinances, required to be the focus

of such licensing decisions.9 And it is clear from the record that several members of that Council

chose to embark on a detour into zoning concerns, which should not have been the focus of the

Council’s decision-making.

                                                 IV

                                            Conclusion

       For the reasons set forth herein, the petition for certiorari is granted, and the May 2014

decision of the Council is quashed. The present Council is hereby directed to issue victualing

licenses to the petitioners forthwith, absent any compelling evidence of significant health and/or

safety issues. The papers in this case are remanded to the Council with our decision endorsed

thereon for further proceedings consistent with this opinion.




9
       See footnote 2, supra.
                                                 -9-
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

                                     The Preservation Society of Newport County et al v.
Title of Case
                                     City Council of the City of Newport et al.
Case Number                          No. 2014-191-M.P.

Date Opinion Filed                   March 15, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson

Source of Appeal                     City Council of the City of Newport

Judicial Officer From Lower Court    N/A
                                     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.




SU-CMS-02A (revised June 2016)
