2012 -- S 2442 SUBSTITUTE A

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LC01598/SUB A

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO TOWNS AND CITIES - ZONING ORDINANCES

     Introduced By: Senators Sosnowski, Walaska, Felag, McCaffrey, and Bates

     Date Introduced: February 16, 2012

     Referred To: Senate Environment & Agriculture

It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 45-24-31 and 45-24-37 of the General Laws in Chapter 45-24

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entitled "Zoning Ordinances" are hereby amended to read as follows:

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     45-24-31. Definitions. -- Where words or terms used in this chapter are defined in section

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45-22.2-4, they have the meanings stated in that section. In addition, the following words have

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the following meanings. Additional words and phrases may be used in developing local

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ordinances under this chapter; however, the words and phrases defined in this section are

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controlling in all local ordinances created under this chapter:

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     (1) Abutter. - One whose property abuts, that is, adjoins at a border, boundary, or point

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with no intervening land.

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     (2) Accessory Dwelling Unit. - A dwelling unit: (i) rented to and occupied either by one

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or more members of the family of the occupant or occupants of the principal residence; or (ii)

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reserved for rental occupancy by a person or a family where the principal residence is owner

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occupied, and which meets the following provisions:

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     (A) In zoning districts that allow residential uses, no more than one accessory dwelling

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unit may be an accessory to a single-family dwelling.

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     (B) An accessory dwelling unit shall include separate cooking and sanitary facilities, with

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its own legal means of ingress and egress and is a complete, separate dwelling unit. The accessory

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dwelling unit shall be within or attached to the principal dwelling unit structure or within an

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existing structure, such as a garage or barn, and designed so that the appearance of the principal

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structure remains that of a one-family residence.

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     (3) Accessory Use. - A use of land or of a building, or portion thereof, customarily

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incidental and subordinate to the principal use of the land or building. An accessory use may be

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restricted to the same lot as the principal use. An accessory use shall not be permitted without the

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principal use to which it is related.

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     (4) Aggrieved Party. - An aggrieved party, for purposes of this chapter, shall be:

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     (i) Any person or persons or entity or entities who can demonstrate that their property

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will be injured by a decision of any officer or agency responsible for administering the zoning

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ordinance of a city or town; or

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     (ii) Anyone requiring notice pursuant to this chapter.

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     (5) Agricultural Land. - "Agricultural land", as defined in section 45-22.2-4.

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     (6) Airport Hazard Area. - "Airport hazard area", as defined in section 1-3-2.

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     (7) Applicant. - An owner or authorized agent of the owner submitting an application or

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appealing an action of any official, board, or agency.

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     (8) Application. - The completed form or forms and all accompanying documents,

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exhibits, and fees required of an applicant by an approving authority for development review,

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approval, or permitting purposes.

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     (9) Buffer. - Land which is maintained in either a natural or landscaped state, and is used

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to screen and/or mitigate the impacts of development on surrounding areas, properties, or rights-

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of-way.

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     (10) Building. - Any structure used or intended for supporting or sheltering any use or

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occupancy.

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     (11) Building Envelope. - The three-dimensional space within which a structure is

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permitted to be built on a lot and which is defined by regulations governing building setbacks,

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maximum height, and bulk; by other regulations; and/or by any combination thereof.

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     (12) Building Height. - The vertical distance from grade, as determined by the

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municipality, to the top of the highest point of the roof or structure. The distance may exclude

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spires, chimneys, flag poles, and the like.

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     (13) Cluster. - A site planning technique that concentrates buildings in specific areas on

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the site to allow the remaining land to be used for recreation, common open space, and/or

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preservation of environmentally, historically, culturally, or other sensitive features and/or

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structures. The techniques used to concentrate buildings shall be specified in the ordinance and

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may include, but are not limited to, reduction in lot areas, setback requirements, and/or bulk

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requirements, with the resultant open land being devoted by deed restrictions for one or more

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uses. Under cluster development there is no increase in the number of lots that would be

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permitted under conventional development except where ordinance provisions include incentive

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bonuses for certain types or conditions of development.

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     (14) Common Ownership. - Either:

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     (i) Ownership by one or more individuals or entities in any form of ownership of two (2)

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or more contiguous lots; or

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     (ii) Ownership by any association (ownership may also include a municipality) of one or

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more lots under specific development techniques.

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     (15) Community Residence. - A home or residential facility where children and/or adults

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reside in a family setting and may or may not receive supervised care. This does not include

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halfway houses or substance abuse treatment facilities. This does include, but is not limited, to the

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following:

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     (i) Whenever six (6) or fewer children or adults with retardation reside in any type of

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residence in the community, as licensed by the state pursuant to chapter 24 of title 40.1. All

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requirements pertaining to local zoning are waived for these community residences;

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     (ii) A group home providing care or supervision, or both, to not more than eight (8)

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persons with disabilities, and licensed by the state pursuant to chapter 24 of title 40.1;

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     (iii) A residence for children providing care or supervision, or both, to not more than

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eight (8) children including those of the care giver and licensed by the state pursuant to chapter

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72.1 of title 42;

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     (iv) A community transitional residence providing care or assistance, or both, to no more

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than six (6) unrelated persons or no more than three (3) families, not to exceed a total of eight (8)

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persons, requiring temporary financial assistance, and/or to persons who are victims of crimes,

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abuse, or neglect, and who are expected to reside in that residence not less than sixty (60) days

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nor more than two (2) years. Residents will have access to and use of all common areas, including

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eating areas and living rooms, and will receive appropriate social services for the purpose of

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fostering independence, self-sufficiency, and eventual transition to a permanent living situation.

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     (16) Comprehensive Plan. - The comprehensive plan adopted and approved pursuant to

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chapter 22.2 of this title and to which any zoning adopted pursuant to this chapter shall be in

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compliance.

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     (17) Day Care -- Day Care Center. - Any other day care center which is not a family day

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care home.

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     (18) Day Care -- Family Day Care Home. - Any home other than the individual's home in

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which day care in lieu of parental care or supervision is offered at the same time to six (6) or less

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individuals who are not relatives of the care giver, but may not contain more than a total of eight

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(8) individuals receiving day care.

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     (19) Density, Residential. - The number of dwelling units per unit of land.

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     (20) Development. - The construction, reconstruction, conversion, structural alteration,

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relocation, or enlargement of any structure; any mining, excavation, landfill or land disturbance;

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or any change in use, or alteration or extension of the use, of land.

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      (21) Development Plan Review. - The process whereby authorized local officials review

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the site plans, maps, and other documentation of a development to determine the compliance with

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the stated purposes and standards of the ordinance.

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     (22) District. - See "zoning use district".

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     (23) Drainage System. - A system for the removal of water from land by drains, grading,

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or other appropriate means. These techniques may include runoff controls to minimize erosion

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and sedimentation during and after construction or development, the means for preserving surface

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and groundwaters, and the prevention and/or alleviation of flooding.

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     (24) Dwelling Unit. - A structure or portion of a structure providing complete,

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independent living facilities for one or more persons, including permanent provisions for living,

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sleeping, eating, cooking, and sanitation, and containing a separate means of ingress and egress.

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     (25) Extractive Industry. - The extraction of minerals, including: solids, such as coal and

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ores; liquids, such as crude petroleum; and gases, such as natural gases. The term also includes

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quarrying; well operation; milling, such as crushing, screening, washing, and flotation; and other

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preparation customarily done at the extraction site or as a part of the extractive activity.

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     (26) Family. - A person or persons related by blood, marriage, or other legal means. See

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also "Household".

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     (27) Floating Zone. - An unmapped zoning district adopted within the ordinance which is

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established on the zoning map only when an application for development, meeting the zone

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requirements, is approved.

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     (28) Floodplains, or Flood Hazard Area. - As defined in section 45-22.2-4.

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     (29) Groundwater. - "Groundwater" and associated terms, as defined in section 46-13.1-3.

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     (30) Halfway House. - A residential facility for adults or children who have been

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institutionalized for criminal conduct and who require a group setting to facilitate the transition to

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a functional member of society.

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     (31) Hardship. - See section 45-24-41.

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     (32) Historic District, or Historic Site. - As defined in section 45-22.2-4.

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     (33) Home Occupation. - Any activity customarily carried out for gain by a resident,

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conducted as an accessory use in the resident's dwelling unit.

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     (34) Household. - One or more persons living together in a single dwelling unit, with

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common access to, and common use of, all living and eating areas and all areas and facilities for

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the preparation and storage of food within the dwelling unit. The term "household unit" is

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synonymous with the term "dwelling unit" for determining the number of units allowed within

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any structure on any lot in a zoning district. An individual household shall consist of any one of

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the following:

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     (i) A family, which may also include servants and employees living with the family; or

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     (ii) A person or group of unrelated persons living together. The maximum number may

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be set by local ordinance, but this maximum shall not be less than three (3).

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     (35) Incentive Zoning. - The process whereby the local authority may grant additional

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development capacity in exchange for the developer's provision of a public benefit or amenity as

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specified in local ordinances.

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     (36) Infrastructure. - Facilities and services needed to sustain residential, commercial,

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industrial, institutional, and other activities.

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      (37) Land Development Project. - A project in which one or more lots, tracts, or parcels

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of land are to be developed or redeveloped as a coordinated site for a complex of uses, units, or

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structures, including, but not limited to, planned development and/or cluster development for

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residential, commercial, institutional, recreational, open space, and/or mixed uses as may be

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provided for in the zoning ordinance.

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     (38) Lot. - Either:

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     (i) The basic development unit for determination of lot area, depth, and other dimensional

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regulations; or

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     (ii) A parcel of land whose boundaries have been established by some legal instrument

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such as a recorded deed or recorded map and which is recognized as a separate legal entity for

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purposes of transfer of title.

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     (39) Lot Area. - The total area within the boundaries of a lot, excluding any street right-

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of-way, usually reported in acres or square feet.

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     (40) Lot Building Coverage. - That portion of the lot that is or may be covered by

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buildings and accessory buildings.

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     (41) Lot Depth. - The distance measured from the front lot line to the rear lot line. For

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lots where the front and rear lot lines are not parallel, the lot depth is an average of the depth.

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     (42) Lot Frontage. - That portion of a lot abutting a street. A zoning ordinance shall

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specify how noncontiguous frontage will be considered with regard to minimum frontage

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requirements.

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     (43) Lot Line. - A line of record, bounding a lot, which divides one lot from another lot

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or from a public or private street or any other public or private space and shall include:

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     (i) Front: the lot line separating a lot from a street right-of-way. A zoning ordinance shall

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specify the method to be used to determine the front lot line on lots fronting on more than one

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street, for example, corner and through lots;

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     (ii) Rear: the lot line opposite and most distant from the front lot line, or in the case of

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triangular or otherwise irregularly shaped lots, an assumed line at least ten feet (10') in length

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entirely within the lot, parallel to and at a maximum distance from the front lot line; and

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     (iii) Side: any lot line other than a front or rear lot line. On a corner lot, a side lot line

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may be a street lot line, depending on requirements of the local zoning ordinance.

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     (44) Lot, Through. - A lot which fronts upon two (2) parallel streets, or which fronts upon

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two (2) streets which do not intersect at the boundaries of the lot.

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     (45) Lot Width. - The horizontal distance between the side lines of a lot measured at right

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angles to its depth along a straight line parallel to the front lot line at the minimum front setback

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line.

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     (46) Mere Inconvenience. - See section 45-24-41.

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     (47) Mixed Use. - A mixture of land uses within a single development, building, or tract.

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     (48) Modification. - Permission granted and administered by the zoning enforcement

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officer of the city or town, and pursuant to the provisions of this chapter to grant a dimensional

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variance other than lot area requirements from the zoning ordinance to a limited degree as

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determined by the zoning ordinance of the city or town, but not to exceed twenty-five percent

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(25%) of each of the applicable dimensional requirements.

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     (49) Nonconformance. - A building, structure, or parcel of land, or use thereof, lawfully

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existing at the time of the adoption or amendment of a zoning ordinance and not in conformity

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with the provisions of that ordinance or amendment. Nonconformance is of only two (2) types:

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     (i) Nonconforming by use: a lawfully established use of land, building, or structure which

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is not a permitted use in that zoning district. A building or structure containing more dwelling

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units than are permitted by the use regulations of a zoning ordinance is nonconformity by use; or

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     (ii) Nonconforming by dimension: a building, structure, or parcel of land not in

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compliance with the dimensional regulations of the zoning ordinance. Dimensional regulations

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include all regulations of the zoning ordinance, other than those pertaining to the permitted uses.

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A building or structure containing more dwelling units than are permitted by the use regulations

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of a zoning ordinance is nonconforming by use; a building or structure containing a permitted

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number of dwelling units by the use regulations of the zoning ordinance, but not meeting the lot

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area per dwelling unit regulations, is nonconforming by dimension.

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     (50) Overlay District. - A district established in a zoning ordinance that is superimposed

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on one or more districts or parts of districts. The standards and requirements associated with an

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overlay district may be more or less restrictive than those in the underlying districts consistent

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with other applicable state and federal laws.

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     (51) Performance Standards. - A set of criteria or limits relating to elements which a

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particular use or process must either meet or may not exceed.

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     (52) Permitted Use. - A use by right which is specifically authorized in a particular

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zoning district.

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     (53) Planned Development. - A "land development project", as defined in section 45-24-

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31(37), and developed according to plan as a single entity and containing one or more structures

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and/or uses with appurtenant common areas.

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     (54) Plant Agriculture. - The growing of plants for food or fiber, to sell or consume.

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     (54)(55) Preapplication Conference. - A review meeting of a proposed development held

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between applicants and reviewing agencies as permitted by law and municipal ordinance, before

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formal submission of an application for a permit or for development approval.

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     (55)(56) Setback Line or Lines. - A line or lines parallel to a lot line at the minimum

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distance of the required setback for the zoning district in which the lot is located that establishes

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the area within which the principal structure must be erected or placed.

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     (56)(57) Site Plan. - The development plan for one or more lots on which is shown the

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existing and/or the proposed conditions of the lot.

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     (57)(58) Special Use. - A regulated use which is permitted pursuant to the special-use

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permit issued by the authorized governmental entity, pursuant to section 45-24-42. Formerly

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referred to as a special exception.

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     (58)(59) Structure. - A combination of materials to form a construction for use,

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occupancy, or ornamentation, whether installed on, above, or below, the surface of land or water.

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     (59)(60) Substandard Lot of Record. - Any lot lawfully existing at the time of adoption or

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amendment of a zoning ordinance and not in conformance with the dimensional and/or area

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provisions of that ordinance.

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     (60)(61) Use. - The purpose or activity for which land or buildings are designed,

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arranged, or intended, or for which land or buildings are occupied or maintained.

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     (61)(62) Variance. - Permission to depart from the literal requirements of a zoning

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ordinance. An authorization for the construction or maintenance of a building or structure, or for

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the establishment or maintenance of a use of land, which is prohibited by a zoning ordinance.

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There are only two (2) categories of variance, a use variance or a dimensional variance.

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     (i) Use Variance. - Permission to depart from the use requirements of a zoning ordinance

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where the applicant for the requested variance has shown by evidence upon the record that the

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subject land or structure cannot yield any beneficial use if it is to conform to the provisions of the

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zoning ordinance.

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     (ii) Dimensional Variance. - Permission to depart from the dimensional requirements of a

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zoning ordinance, where the applicant for the requested relief has shown, by evidence upon the

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record, that there is no other reasonable alternative way to enjoy a legally permitted beneficial use

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of the subject property unless granted the requested relief from the dimensional regulations.

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However, the fact that a use may be more profitable or that a structure may be more valuable after

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the relief is granted are not grounds for relief.

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     (62)(63) Waters. - As defined in section 46-12-1(23).

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     (63)(64) Wetland, Coastal. - As defined in section 45-22.2-4.

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     (64)(65) Wetland, Freshwater. - As defined in section 2-1-20.

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     (65)(66) Zoning Certificate. - A document signed by the zoning enforcement officer, as

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required in the zoning ordinance, which acknowledges that a use, structure, building, or lot either

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complies with or is legally nonconforming to the provisions of the municipal zoning ordinance or

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is an authorized variance or modification therefrom.

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     (66)(67) Zoning Map. - The map or maps which are a part of the zoning ordinance and

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which delineate the boundaries of all mapped zoning districts within the physical boundary of the

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city or town.

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     (67)(68) Zoning Ordinance. - An ordinance enacted by the legislative body of the city or

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town pursuant to this chapter and in the manner providing for the adoption of ordinances in the

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city or town's legislative or home rule charter, if any, which establish regulations and standards

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relating to the nature and extent of uses of land and structures, which is consistent with the

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comprehensive plan of the city or town as defined in chapter 22.2 of this title, which includes a

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zoning map, and which complies with the provisions of this chapter.

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     (68)(69) Zoning Use District. - The basic unit in zoning, either mapped or unmapped, to

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which a uniform set of regulations applies, or a uniform set of regulations for a specified use.

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Zoning use districts include, but are not limited to: agricultural, commercial, industrial,

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institutional, open space, and residential. Each district may include sub-districts. Districts may be

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combined.

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     45-24-37. General provisions -- Permitted uses. -- (a) The zoning ordinance provides a

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listing of all land uses and/or performance standards for uses which are permitted within the

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zoning use districts of the municipality.

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     (b) Notwithstanding any other provision of this chapter, the following uses are permitted

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uses within all residential zoning use districts of a municipality and all industrial and commercial

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zoning use districts except where residential use is prohibited for public health or safety reasons:

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     (1) Households;

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     (2) Community residences; and

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     (3) Family day care homes; and.

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     (4) Plant agriculture, being defined herein as the growing of plants, both food and fiber,

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to sell and/or consume.

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     (c) Any time a building or other structure used for residential purposes, or a portion of a

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building containing residential units, is rendered uninhabitable by virtue of a casualty such as fire

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or flood, the owner of the property is allowed to park, temporarily, mobile and manufactured

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home or homes, as the need may be, elsewhere upon the land, for use and occupancy of the

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former occupants for a period of up to twelve (12) months, or until the building or structure is

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rehabilitated and otherwise made fit for occupancy. The property owner, or a properly designated

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agent of the owner, is only allowed to cause the mobile and manufactured home or homes to

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remain temporarily upon the land by making timely application to the local building official for

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the purposes of obtaining the necessary permits to repair or rebuild the structure.

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     (d) Notwithstanding any other provision of this chapter, appropriate access for people

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with disabilities to residential structures is allowed as a reasonable accommodation for any

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person(s) residing, or intending to reside, in the residential structure.

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     (e) Notwithstanding any other provision of this chapter, an accessory family dwelling

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unit in an owner-occupied, single-family residence shall be permitted as a reasonable

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accommodation only for family members with disabilities. The appearance of the structure shall

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remain that of a single-family residence and there shall be an internal means of egress between

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the principal unit and the accessory family dwelling unit. If possible, no additional exterior

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entrances should be added. Where additional entrance is required, placement should generally be

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in the rear or side of the structure. When the structure is serviced by an individual sewage

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disposal system, the applicant shall have the existing or any new system approved by the

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department of environmental management. The zoning enforcement officer shall require that a

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declaration of the accessory family dwelling unit for the family member or members and its

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restrictions be recorded in the land evidence records and filed with the zoning enforcement officer

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and the building official. Once the family member or members with disabilities no longer resides

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in the premises on a permanent basis, or the title is transferred, the property owner shall notify the

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zoning official in writing, and the accessory family dwelling unit shall no longer be permitted,

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unless there is a subsequent, valid application.

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     (f) When used in this section the terms "people with disabilities" or "member or members

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with disabilities" means a person(s) who has a physical or mental impairment which substantially

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limits one or more major life activities, as defined in section 34-37-3 of the general laws.

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     (g) Notwithstanding any other provisions of this chapter, plant agriculture, being defined

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as the growing of plants for both food and fiber, to sell and/or consume, is a permitted use within

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all residential use zoning districts of a municipality, including all industrial and commercial

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zoning districts, except where prohibited for public health or safety reasons or the protection of

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wildlife habitat,. consistent with the "Rhode Island Right to Farm Act", chapter 2-23, including

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the provisions that this chapter does not apply to agricultural operations conducted in a malicious

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or negligent manner, and the director of the department of environmental management, in

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consultation with the chief of the division of agriculture, shall determine what is agriculture, or an

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agricultural activity use or operation.

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     SECTION 2. This act shall take effect upon passage.

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LC01598/SUB A

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TOWNS AND CITIES - ZONING ORDINANCES

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     This act would make plant agriculture a permitted use within all lands subject to the

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jurisdiction of the Rhode Island Coastal Resources Management Council and grants to the

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department of environmental management jurisdiction and enforcement of such use.

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     This act would take effect upon passage.

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LC01598/SUB A

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