Chapter 18.52  ZONING BOARD OF REVIEW

 

18.52.010        Zoning board of review – organization and membership.

18.52.020        Zoning board of review – authority and duties.

18.52.030        Application.

18.52.040        Notice and public hearing.

18.52.050        Variances.

18.52.060        Special use permits.

18.52.070        Decisions.

18.52.080        Appeal to superior court.

18.52.090        Board of appeal.

 

18.52.010 – Zoning board of review – organization and membership. 

A. The town council shall appoint a zoning board of review consisting of five regular members and two alternate members. All members shall be Richmond residents, and no member shall be an employee of the town.  If a vacancy occurs in any seat, the town council shall appoint a new member to serve the remainder of the term. The town council shall have the authority to remove a member for cause after a hearing.

 

B. The regular members shall be appointed to staggered five-year terms. The alternate members, who shall be designated as first alternate and second alternate, shall be appointed to one-year terms. The alternate members shall be present at and may participate in public hearings. The first alternate shall vote if a regular member is unable to vote, and the second alternate shall vote if two regular members are unable to vote. In the absence of the first alternate, the second alternate shall serve as the first alternate. No regular or alternate member shall vote on an application unless the member has attended the entire public hearing on that application.  

 

C.  The board may retain legal, technical, or clerical assistance to aid in the discharge of its duties with the approval of the town council.

 

D. The chairperson or acting chairperson shall have the authority to administer oaths and compel the attendance of witnesses by issuing subpoenas.

 

E.  The board shall adopt written rules of procedure.

(Ord. dated 4-1-14)

 

18.52.020   Zoning board of review – authority and duties.

A. The zoning board of review shall have the following authority and duties:

1.   To grant variances in the application of the terms of this title.

2.   To approve special use permits.

3.   To hear and decide appeals from decisions of the zoning enforcement officer or any other town official charged with the enforcement or interpretation of this title.

4.   To issue conditional approvals of variances and special use permits when a proposed use also  requires an approval from a state or federal agency and that approval has not yet been issued. A decision granting a conditional zoning approval shall include the date on which the approval will expire if the state or federal approval has not been issued.

6.   To refer matters to the town planner, the planning board, the conservation commission, or any other town official, department or body for findings and recommendations.

 

B.  When granting a variance or special use permit or making any other determination within its authority, the zoning board of review may impose conditions necessary to promote the intent of the comprehensive plan and this title. The conditions shall be based on competent credible evidence in the record and shall be included in the written decision. Failure to abide by any condition shall be considered a violation of this title. The conditions may include provisions concerning:

1.   The type, intensity, design, and performance of uses in order to minimize an adverse impact of the use on other land;

2.   The sequence of development, including dates for commencement and completion;

3.   The duration of a use or development, including the time within which a temporary structure must be removed;

4.   Satisfactory installation and maintenance of required public improvements;

5.   The exact location and nature of the use or development; and

6.   Submission of drawings, maps, plans, or specifications, including as-built drawings, to establish a detailed record of the development.

 

C.  The zoning board of review shall be required to vote as follows:

1.   Five members must hear and vote on each application. No more than five members shall vote. If a member cannot hear and vote on an application because of a conflict of interest, that member shall recuse himself or herself and shall not participate in the hearing or vote.

2.   The concurring votes of three (3) of the five (5) voting members are required to reverse any order, requirement, decision, or determination by the zoning enforcement officer or any other town official.

3.   The concurring votes of four (4) of the five (5) voting members are required to approve an application for a variance or a special use permit.

(Ord. dated 4-1-14)

 

18.52.030   Application.  Applications to the zoning board of review shall be submitted, and notice shall be given, in the following manner:

 

A.  Applicants for variances and special use permits, and persons appealing an order, requirements, decision, or determination of the zoning enforcement officer or any other town official charged with the enforcement or interpretation of this Title, shall complete a form provided by the clerk of the zoning board of review.  The applicant shall submit the following to the clerk of the zoning board of review:

1.   The completed application form.

2.   The fee required by Ch. 3.06 of the Richmond Code of Ordinances.

3.   Any supplemental material required by this title, by the zoning board of review rules of procedure for the submission and consideration of petitions, or by the instructions on the form.

4.   A copy of a portion of a Richmond tax assessor’s map showing the property that is the subject of the application and all property within two hundred (200) feet of the subject property.

5.   A list of the last known names and addresses of the owners of all property within two hundred (200) feet of the subject property, as shown on the current real estate tax assessment records.

(Ord. dated 4-1-14)

 

18.52.040   Notice and public hearing.

A.  The zoning board of review shall conduct a public hearing on the variance application or special use permit application in a timely manner. The zoning board of review shall conduct a public hearing on an appeal within sixty-five (65) days of the day the appeal application is filed. The board shall advertise the public hearing at least fourteen (14) days in advance in a newspaper of general circulation in Richmond.

 

B.  An applicant for a variance, special use permit, or appeal shall send notice of the hearing to:

1.   The owners of property within two hundred (200) feet of the property that is the subject of the application, whether located in Richmond or an adjacent town.

2.   The town council of any town adjacent to Richmond, if the subject property is located within two hundred (200) feet of the boundary of that town.

3.   The town council of Richmond or any other town, if there is a public or quasi-public water source, or private water source that is used or is suitable for use as a public water source, located within that town and within two thousand (2,000) feet of the subject property.

4.   The governing body of any state or municipal water department or agency, special water district, or private water company, or any private property owner, that has riparian rights to a surface water resource and/or surface watershed that is used or is suitable for use as a public water source and that is within two thousand (2,000) feet of the property that is the subject of the application, provided that the governing body of the state or municipal water department or agency, special water district, or private water company, or the private property owner, has filed with the Richmond building official a map survey, which shall be kept as a public record, showing the areas of surface water resources and/or watersheds and parcels of land within two thousand (2,000) feet thereof.

5.   Any individual or entity holding a recorded conservation or preservation restriction on the property.

           

The notice shall include the applicant’s name and address and the street address and plat and lot number of the subject property, and shall describe the relief sought.  The notice shall state the date, time, and location of the public hearing.  The notice shall be sent by first class mail, postage prepaid, at least fourteen (14) days before the date of the hearing. The sender shall obtain a certificate of mailing, U.S. postal service form 3817 or its equivalent, to prove the notice was mailed.

 

C.  Participation in a zoning board of review hearing by a party is not a cause for civil action or liability except for acts not in good faith, intentional misconduct, a knowing violation of law, transactions where there is an improper personal benefit, or malicious, wanton, or willful misconduct.

(Ord. dated 4-1-14; ord. dated 11-3-15)

 

18.52.050   Variances. The zoning board of review shall have the authority to grant a variance when literal enforcement of this Title would create unnecessary hardship.

 

A.  An applicant for a variance must demonstrate to the satisfaction of the zoning board of review that:

1.   The hardship is due to the unique characteristics of the land or structure and not to the general characteristics of the surrounding area;

2.   The hardship is not due to a physical or economic disability of the applicant except for those disabilities covered by the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et. seq.;

3.   The hardship is not the result of any prior action by the applicant;

4.   The application does not result primarily from the desire to realize greater financial gain;

5.   Granting the variance will not alter the general character of the surrounding area or impair the intent or purpose of this Title; and

6.   The relief requested is the least relief necessary. 

 

B.  Use variance: In addition to the requirements of subsection A, an applicant for a use variance must demonstrate that the property or structure cannot yield any beneficial use if it is required to conform to the provisions of this title. Nonconforming use of neighboring land or structures in the same district and permitted use of lands or structures in an adjacent district shall not be considered in granting a use variance.

 

C.  Dimensional variance: In addition to the requirements of subsection A, an applicant for a dimensional variance must demonstrate that if the property is required to conform to the provisions of this Title, the hardship suffered by the owner of the property will amount to more than a mere inconvenience. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted is not grounds for relief.

 

D.  The zoning board of review may impose any additional conditions or safeguards it deems necessary to protect the public health, safety and welfare. The conditions or safeguards must be based on competent, credible evidence in the record and shall be included in the written decision.

(Ord. dated 4-1-14)

 

18.52.060  Special use permits.  The zoning board of review shall have the authority to grant special use permits that are specifically authorized by this Title.

 

A.  An applicant for a special use permit must demonstrate to the satisfaction of the zoning board of review that:

1.   The proposed use will not substantially or permanently harm the appropriate use of surrounding property;

2.   Neither the proposed use nor its location on the site will result in conditions that will harm the public health, safety, and welfare; and

3.   The proposed use will be in harmony with the general purpose and intent of this Title.

 

B.  In determining whether the proposed use will satisfy the criteria in subsection A., the zoning board of review may consider:

1.   The potential environmental effects of the proposed use on surrounding property and on the town;

2.   The potential impact of the proposed use on traffic circulation and safety;

3.   Whether the proposed use will generate noise, odor, or other effects that cannot be mitigated by the imposition of conditions or safeguards.

 

C.  A use established by special use permit shall not be altered, expanded, or enlarged without zoning board of review approval of a special use permit for the alteration, expansion, or enlargement.

(Ord. dated 4-1-14)

 

18.52.070   Decisions.

A. The zoning board of review shall render a decision on each application within fifteen (15) days of the day the public hearing is closed. The written decision shall be posted in the planning, zoning and building department and in the town clerk’s office, in a location visible to the public, within thirty (30) days of the day the decision was rendered. The date of posting shall be noted on the document. A decision granting a variance or special use permit also shall be recorded in the land evidence records.

 

B. The written decision shall include findings of fact, conclusions of law, and any conditions imposed. It shall include the names of the members present and absent, the names of members who participated in the public hearing, the names of the members who voted, and the vote of each voting member.

 

C.  The zoning board of review clerk shall mail a copy of the written decision to the applicant and to any other party who participated in the public hearing and who provided the clerk with his or her name and address, by any method that provides confirmation of receipt, within one day of the day the decision was posted. The clerk also shall provide a copy of the written decision to the zoning enforcement officer.

 

D. The zoning board of review shall keep minutes of each meeting. The minutes shall include the date, time, and place of the meeting; the members present or absent; a record of votes taken, the names of members voting and how each member voted, and the names of applicants and witnesses. A record of all votes taken and how each member voted shall be available to the public at the planning, zoning and building department within two weeks of the date of the meeting. Minutes of the meeting shall be available to the public at the planning, zoning and building department within thirty-five (35) days of the meeting. A competent stenographer shall take the minutes of each public hearing. 

(Ord. dated 4-1-14; Ord. dated 11-3-15; Ord. dated 1-2-18)

 

18.52.080  Appeal to superior court. 

A.  An aggrieved party may appeal a decision of the zoning board of review to the superior court for Washington County by filing a complaint setting forth the reasons for the appeal within twenty (20) days after the written decision was posted in the town clerk’s office.  When the complaint is filed by someone other than the applicant to the zoning board of review, the applicant and the members of the zoning board of review shall be made parties to the appeal.

 

B.  The appellant shall give notice of the appeal to those persons who were entitled to notice of the public hearing. The notice shall be mailed by first class mail within ten (10) business days after the appeal was filed in superior court. The notice shall contain:

1.   The caption and civil action number of the case;

2.   The date the case was filed in the superior court;

3.   The county in which the appeal to superior court was filed;

4.   The name, address and telephone number of the attorney who filed the appeal on behalf of the aggrieved party, or the name, address, and telephone number of the aggrieved party if the aggrieved party is not represented by an attorney;

5.   Words in bold type saying that an appeal has been filed in the superior court;

6.   Words saying that the aggrieved party will serve the named defendants;

7.   Words saying that a person who receives the notice may hire an attorney and/or participate in the appeal insofar as the law allows;

8.   Words saying that an appeal of a decision of a zoning board to the superior court is governed by § 45-24-69 of the general laws; and

9.   The date of the notice.

Within twenty (20) days after a notice is sent, the appellant shall file an affidavit with the court indicating the date the notice was sent, that it was sent by first class mail postage prepaid, and that each notice was sent in an envelope with a return address and stating the return address;

containing a complete list of the names and addresses of the persons to whom the notice was sent; and identifying all notices that were returned or not delivered and stating that no other notices have been returned as of the date and time of the affidavit. A copy of the notice shall be attached to the affidavit.

 

C.  Within thirty (30) days after being served with a copy of the complaint, the zoning board of review shall file with the clerk of the court the originals or certified copies of all the documents constituting the record of the case appealed from, together with such other documents as may be pertinent.

 

D.  The appeal shall not stay proceedings upon the decision appealed from, but the court may, in its discretion, grant a stay on appropriate terms and make such other orders as it deems necessary for an equitable disposition of the appeal.

 

E.  If, before the date set for hearing in the superior court, an application is made to the court for leave to present additional evidence before the zoning board of review and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for the failure to present it at the hearing before the zoning board of review, the court may order that the additional evidence be taken before the zoning board of review upon conditions determined by the court.  The zoning board of review may modify its findings and decision by reason of the additional evidence and shall file that evidence and any new findings or decisions with the superior court.

 

F.  The review shall be conducted by the superior court without a jury. The court shall consider the record of the hearing before the zoning board of review and, if it shall appear to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal to present the evidence in open court, which evidence, along with the report, shall constitute the record upon which the determination of the court shall be made.

 

G.  The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions or decisions that are:

1.   In violation of constitutional, statutory or ordinance provisions;

2.   In excess of the authority granted to the zoning board of review by statute or ordinance;

3.   Made upon unlawful procedure;

4.   Affected by other error of law;

5.   Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

6.   Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(Ord. dated 4-1-14)

 

18.52.090   Board of appeal.

A.  The zoning board of review shall sit as the board of appeal to hear appeals of decisions of the planning board or the administrative officer on matters of review and approval of land developments and subdivisions.  The appeal shall be heard according to the procedure in Article 12 of the land development and subdivision regulations.

 

B.  A hearing by the board of appeal may be held on the same date and at the same place as a meeting of the zoning board of review, but the board of appeal meeting must be conducted as a separate meeting.  Separate minutes shall be prepared and a separate record shall be kept.

(Ord. dated 4-1-14)

 

REFERENCES: R.I. Gen. Laws §§ 45-23-57, 66, 67, 68, 69, 70, 71, §§ 45-24-41, 42, 43, 45, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 69.1, 70; Land Development and Subdivision Regulations Art. 12.

 

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