2015 -- S 0737

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LC002156

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

____________

A N   A C T

RELATING TO AGRICULTURE AND FORESTRY - AGRICULTURE FUNCTIONS OF

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

     Introduced By: Senators Lynch, Sosnowski, Walaska, and Miller

     Date Introduced: March 19, 2015

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 2-1-18, 2-1-19, 2-1-20, 2-1-20.1, 2-1-20.2, 2-1-20.3, 2-1-21, 2-1-

23, 2-1-24 and 2-1-25 of the General Laws in Chapter 2-1 entitled "Agricultural Functions of

Department of Environmental Management" are hereby amended to read as follows:

     2-1-18. Declaration of intent. -- Whereas it is recognized that swamps, marshes and

other fresh-water wetlands, buffers, floodplains and other areas that may be subject to storm

flows and flooding as defined in this chapter act as buffers zones and provide storage and

absorption areas for flood waters which reduce flood hazards; and

      Whereas all flood plains for all rivers, streams, and other water courses are certain to be

overflowed with water periodically in spite of all reasonable efforts to prevent those occurrences;

and

      Whereas flood waters overflowing into marshes, swamps, and other fresh-water

wetlands, buffers, floodplains, and other areas that may be subject to storm flows and flooding are

not only released more slowly downstream, thus reducing the damage they may cause, but flood

waters may tend to be absorbed into the ground water supply through swamps, marshes, and other

fresh water wetlands, thus further reducing the flood hazard and recharging the vital ground water

resource; and

     Whereas precipitation patterns are known to be changing and Rhode Island has

experienced a higher frequency of intense storm events resulting in flooding; and

     Whereas swamps, marshes, and other fresh-water wetlands and buffers are among the

most valuable of all wildlife habitats and are high value recreational areas as well, and wildlife

and recreation are widely recognized as essential to the health, welfare, and general well being of

the general populace; and

     Whereas it has been established through scientific study that activities conducted in lands

adjacent to freshwater wetlands can exert influence on their condition, functions, and values; and

subsequently these lands should be protected; and

     Whereas it has been established through scientific study that maintaining lands adjacent

to freshwater wetlands as naturally vegetated buffers protects the functions and values of

wetlands and that such buffers in and of themselves perform vital ecological functions; and

     Whereas it has been established through scientific study that freshwater wetlands and

buffers maintained in a natural condition can provide benefits to water quality through the

filtering and uptake of water pollutants, retention of sediment, stabilizing shorelines, and other

natural processes; and

     Whereas swamps, marshes, and other fresh-water wetlands, buffers, and floodplains, are

increasingly threatened by random and frequently undesirable projects for drainage, excavation,

filling, encroachment, or other form forms of disturbance or destruction, and that a review of

scientific literature indicates that aspects of existing state standards to protect these areas need to

be strengthened; are currently inadequately protected from random and undesirable projects; and

      Whereas the protection of swamps, marshes, and other fresh water wetlands, buffers,

floodplains, and other areas that may be subject to storm flows and flooding from random,

unnecessary, and/or undesirable drainage, excavation, filling, encroachment, or any other form of

disturbance or destruction is recognized as being in the best public interest and essential to the

health, welfare, and general well being of the general populace and essential to the protection of

property and life during times of flood or other disaster affecting water levels or water supply;

     Whereas the lack of uniform standards results in duplication of reviews administered by

state and local governments and burdens businesses and property owners who require a

predictable regulatory environment to be successful; and

     Whereas it is recognized that statewide regulatory standards to protect freshwater

wetlands, buffers, and floodplains are in the public interest, important to supporting economic

vitality, and necessary to ensure protection is achieved in a consistent manner; and

     Therefore, the provisions of the following sections are intended to preserve freshwater

wetlands, buffers, and floodplains and regulate the use of thereof swamps, marshlands and other

fresh water wetlands through the establishment of jurisdictional areas and the regulation of

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activities consistent with this chapter.

     2-1-19. Public policy on swamps, marshes, and fresh water wetlands. -- Public policy

on freshwater wetlands. -- It is the public policy of the state to preserve the purity and integrity

of the swamps, marshes, and other fresh water wetlands buffers and floodplains of this state. The

health, welfare, and general well being of the populace and the protection of life and property

require that the state restrict the uses of freshwater wetlands, buffers, and floodplains and, in the

exercise of the police power, those wetlands are to be regulated regulate activities in jurisdictional

areas and as otherwise provided for hereunder consistent with this chapter.

     2-1-20. Definitions. -- As used in this chapter;

     (1) "Area subject to flooding" shall include, but not be limited to, low-lying areas that

collect, hold, or meter out storm and flood waters from any of the following: rivers, streams,

intermittent streams, or areas subject to storm flowage.

     (2) "Area subject to storm flowage" includes drainage swales and channels that lead into,

out of, pass through, or connect other freshwater wetlands or coastal wetlands, and that carry

flows resulting from storm events, but may remain relatively dry at other times.

     (1)(3) "Bog" means a place where standing or slowly running water is near or at the

surface during normal growing season and/or where a vegetational community has over fifty

percent (50%) of the ground or water surface covered with sphagnum moss (Sphagnum) and/or

where the vegetational community is made up of one or more of, but not limited to nor

necessarily including all of, the following: blueberries, and cranberry (Vaccinium), leatherleaf

(Chamaedaphne calyculata), pitcher plant (Sarracenia purpurea), sundews (Droseraceae), orchids

(Orchidaceae), white cedar (Chamaecyparis thyoides), red maple (Acer rubrum), black spruce

(Picae mariana), bog aster (Aster nemoralis), larch (Laris laricina), bogrosemary (Andromeda

glaucophylla), azaleas (Rhododendron), laurels (Kalmia), sedges (Caryx), and bog and cotton

(Eriophorum).

     (4) "Buffer" means an area of undeveloped vegetated land adjacent to a freshwater

wetland that is to be retained in its natural undisturbed condition, or is to be created to resemble a

naturally occurring vegetated area.

     (5) "Department" means the department of environmental management (DEM).

     (2)(6) "Director" means the director of the department of environmental management or

his or her duly authorized agent or agents.

     (3)(7) "Flood Plain" means that land area adjacent to a river or stream or other body of

flowing water which is, on the average, likely to be covered with flood waters resulting from a

one hundred (100) year frequency storm. A "one hundred (100) year frequency storm" is one that

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is to be expected to be equaled or exceeded once in one hundred (100) years; or may be said to

have a one percent (1%) probability of being equaled or exceeded in any given year. Rainfall

intensity data for a one hundred (100) year frequency storm are those established for New

England locations by the national weather service (formerly the U. S. weather bureau).

      (4)(8) "Fresh water wetlands" includes but is not limited to, those areas that are

inundated or saturated by surface or groundwater at a frequency and duration to support, and that

under normal circumstances do support a prevalence of vegetation adapted for life in saturated

soil conditions. Freshwater wetlands includes, but is not limited to: marshes, swamps, bogs,

ponds, rivers, river and stream flood plains and banks, areas subject to flooding or storm flowage,

emergent and submergent plant communities, and for the purposes of this chapter rivers, streams,

ponds, and vernal pools in any body of fresh water including rivers and streams and that area of

land within fifty feet (50') of the edge of any bog, marsh, swamp or pond.

     (9) "Jurisdictional area" means the following lands and waters, as defined herein, which

shall be subject to regulation under this chapter:

     (i) Freshwater wetlands;

     (ii) Buffers;

     (iii) Floodplains;

     (iv) Areas subject to storm flowage;

     (v) Areas subject to flooding; and

     (vi) Contiguous areas that extend outward:

     (A) Two hundred feet (200') from the edge of a river or stream;

     (B) Two hundred feet (200') from the edge of a drinking water supply reservoir; and

(C) One hundred feet (100') from the edge of all other freshwater wetlands.

     (5)(10) "Marsh" means a place not less than one acre in extent wholly or partly within the

state where a vegetational community exists in standing or running water during the growing

season and/or is made up of one or more of, but not limited to nor necessarily including all of, the

following plants or groups of plants: hydrophytic reeds (Phragmites), grasses (Cramineae),

mannagrasses (Glyceria), cutgrasses (Leersia), pickerelwoods (Pontederiaceae), sedges

(Cyperaceae), rushes (Juncaceae), cattails (Typha), water plantains (Alismataceae), bur-reeds

(Sparganiazceae), pondweeds (Zosteraceae), frog's bits (Hydrocharitaceae), arums (Araceae),

duckweeds (Lemmaceae), water lilies (Nymphaeceae), water-milfoils (Haloragaceae), water-

starworts (Callitrichaeceae), bladder-worts (Utricularia), pipeworts (Eriocaulon), sweet gale

(Myrica gale), and buttonbush (Cephalanthus occidentalis).

      (6)(11) "Near or at the surface" mean within thirty-six (36) eighteen (18) inches of the

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surface.

      (7)(12) "Pond" means a place not less than one-quarter (1/4) acre in extent, natural or

man-made, wholly or partly within the state, where open standing or slowly moving water is

present for at least six (6) months a year.

      (8)(13) "River" means a body of water designated as a perennial stream by the United

States department of interior geologic survey on 7.5 minute series topographic maps and which is

not a pond as defined in this section.

      (14) "Setback" means the minimum distance from the edge of a freshwater wetland at

which an approved activity or alteration may take place.

     (15) "Stream" means any flowing body of water or watercourse that flows long enough

each year to develop and maintain a channel and that may carry groundwater discharge or surface

runoff.

     (9) "River bank" means that area of land within two hundred feet (200') of the edge of

any flowing body of water having a width of ten feet (10') or more and that area of land within

one hundred feet (100') of the edge of any flowing body of water having a width of less than ten

feet (10') during normal flow.

      (10)(16) "Swamp" means a place not less than three (3) acres in extent wholly or partly

within the state where ground water is near or at the surface of the ground for a significant part of

the growing season or runoff water from surface drainage collects frequently and/or where a

vegetational community is made up of a significant portion of one or more of, but not limited to

nor necessarily including all of, the following: red maple (Acer rubum), elm (Ulmus americana),

black spruce (Picea mariana), white cedar (Chamaecyparis thyoides), ashes (Fraximus), poison

sumac (Rhus vernix), larch (Larix laricina), spice bush (Lindera benzoin), alders (Alnus), skunk

cabbage (Symplocarpus foetidus), hellebore (Veratrum viride), hemlock (Thuja canadensis),

sphagnums (Sphagnum), azaleas (Rhododendron), black adler alder (Ilex verticillata), coast

pepperbush (Clethra alnifolia), marsh marigold (Caltha palustris), blueberries (Vaccinium),

buttonbush (Cephalanthus occidentalis), willow (Salicaceae), water willow (Decodon

verticillatus), tupelo (Nyssa sylbatica), laurels (Kalmia), swamp white oak (Quercus biscolor), or

species indicative of marsh.

     (17) "Vernal pool" means a depressional wetland basin that typically goes dry in most

years and may contain inlets or outlets, typically of intermittent flow. Vernal pools range in both

size and depth depending upon landscape position and parent materials. Vernal pools usually

support one or more of the following obligate indicator species: wood frog (Lithobates

sylvaticus), spotted salamander (Ambystoma maculatum), marbled salamander (Ambystoma

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opacum), and fairy shrimp (Eubranchipus spp.) and typically preclude sustainable populations of

predatory fish.

     2-1-20.1. Rules and regulations. – (a) The director is authorized to adopt, modify, or

repeal rules and regulations that are in accord with the purposes of §§ 2-1-18 -- 2-1-2426 and are

subject to the administrative procedures act, chapter 35 of title 42, except for those freshwater

wetlands located in the vicinity of the coast as set out in chapter 23 of title 46 of the general laws

which shall be regulated by the coastal resources management council consistent with the

provisions of chapter 23 of title 46 and §§ 2-1-18 through 2-1-20.1 and 2-1-23.

     (b) The director is authorized to establish jurisdictional areas through regulation. The

rules and regulations promulgated pursuant to § 2-1-20.1 shall apply within the jurisdictional

areas defined in § 2-1-20 and to activities as provided for in § 2-1-21.

     (c) Within twelve (12) months from enactment of this section, the department and the

coastal resources management council shall promulgate standards for freshwater wetland buffers

and setbacks into state rules and regulations pursuant to their respective authorities. The

department and the coastal resources management council shall collaborate to develop the state

standards for freshwater buffers and setbacks that will be incorporated into the programs of both

agencies. State regulations designating buffers shall include a procedure that allows a

municipality to petition the agency director with jurisdiction to increase the size of the buffer

within the designated jurisdictional area protecting one or more freshwater wetland resources.

     2-1-20.2. Designation of wetlands. -- Designation of wetlands, buffers, and

floodplains. -- The director is authorized to determine which areas are to be known as freshwater

wetlands and to maintain map surveys of the state that indicates the wetland areas. Those map

surveys shall be provided to each of the individual cities and towns, and copies of these map

surveys shall be maintained as public records by the building inspector of each city and town

buffers and floodplains, areas subject to flooding, and areas subject to storm flowage.

     2-1-20.3. Inspection -- Penalty. -- (a) The director is authorized to enter, examine or

survey at any reasonable time any places that he or she considers necessary to carry out his or her

responsibilities under §§ 2-1-18 -- 2-1-24 26 without a warrant.

      (b) Any person who willfully impedes or obstructs an inspection, examination or survey

by the director or the director's agents shall upon conviction be punished by a fine not exceeding

one hundred dollars ($100) or by imprisonment not exceeding thirty (30) days or both.

     2-1-21. Approval of director. -- (a) (1) No person, firm, industry, company, corporation,

city, town, municipal or state agency, fire district, club, nonprofit agency, or other individual or

group may:

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     (i) excavate Excavate; drain; fill; place trash, garbage, sewage, highway runoff, drainage

ditch effluents, earth, rock, borrow, gravel, sand, clay, peat, or other materials or effluents upon;

divert water flows into or out of; dike; dam; divert; change; add to or take from or otherwise alter

the character of any fresh water wetland buffer or floodplain as defined in section 2-1-20 without

first obtaining the approval of the director of the department of environmental management; or

     (ii) Undertake any activity within a jurisdictional area, as defined in § 2-1-20, that may

alter the character of the freshwater wetland, buffer or floodplain without first obtaining the

approval of the director of the department of environmental management.

      (2) Approval will be denied if in the opinion of the director granting of approval would

not be in the best public interest. Approval shall not be granted if the city council or town council

of the municipality within whose borders the project lies disapproves within the forty-five (45)

days provided for objections set forth in § 2-1-22. Disapproval does not preclude the director of

the department of environmental management from granting an approval of alterations of

wetlands relating to a state highway project proposed by the department of transportation that

passes through or crosses two (2) or more municipalities.

      (3) Appeal from a denial may be made to the superior court following the exhaustion of

administrative appeals provided through the administrative adjudication division established by

chapter 17.7 of title 42.

      (4) In the event of any alteration by a city or town of surface water impoundments used

for drinking water supply, limited to maintenance within existing boundary perimeters of the

impoundment, no approval shall be required. The city or town advises the director at least twenty

(20) days prior to commencing the maintenance work. The city or town shall advise the director

in writing, describing the location and nature of the work, anticipated times of commencement

and completion, and methods to be used to reduce adverse impacts on the freshwater wetland,

buffer, or floodplain. The director shall advise the city or town of any concerns with the impact of

the proposed maintenance on the freshwater wetland, buffer, or floodplain or and water quality.

      (b) Whenever a landowner is denied approval to alter a freshwater wetland by the

director, or by the city or town within whose borders the wetland lies under subsection (a), the

landowner may elect to have the state, or the city or town, acquire the land involved by

petitioning to the superior court. If the court determines that the proposed alteration would not

essentially change the natural character of the land, would not be unsuited to the land in the

natural state, and would not injure the rights of others, the court shall, upon determining the fair

market value of the freshwater wetland, based upon its value as a freshwater wetland, direct the

state, if approval was denied by the director, or the city or town, if approval was denied by the

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city or town, or both, if they concur in the disapproval, to pay to the landowner the fair market

value of the freshwater wetland. If the state, or the city or town, or both, where both are ordered

to pay, declines the acquisition, the landowner may proceed to alter the freshwater wetland as

initially requested. Any amount paid by the state shall be paid from any funds in the treasury not

otherwise appropriated. If the director of environmental management alone denied approval under

subsection (a), then the state shall make payment. If the city or town alone denied approval under

subsection (a), then the city or town shall make payment. If both the state and the city or town

denied approval, then payment shall be shared equally by the state and the city or town.

     2-1-23. Violations. -- In the event of a violation of § 2-1-21, the director of

environmental management has the power to order complete restoration of the fresh water

wetland, buffer, floodplain or other jurisdictional area involved by the person or agent responsible

for the violation. If the responsible person or agent does not complete the restoration within a

reasonable time following the order of the director of the department of environmental

management, the director has the authority to order the work done by an agent of the director's

choosing and the person or agent responsible for the original violation is liable for the cost of the

restoration. The violator is liable for a fine not exceeding five thousand dollars ($5,000) for each

violation, except that if the violator knowingly or recklessly alters a fresh water wetland, buffer,

floodplain or other jurisdictional area without a permit or approval from the director, knowingly

or recklessly alters a fresh water wetland, buffer, floodplain or other jurisdictional area in

violation of the rules or regulations promulgated by the director, or alters a fresh water wetland,

buffer, floodplain or other jurisdictional area in violation of a permit issued by the director, then

the violator is liable for a fine not exceeding ten thousand dollars ($10,000) for each violation.

     2-1-24. Notice to cease operation and relief in equity -- Penalty. -- (a) Whenever any

person, firm, industry, company, corporation, city, town, municipal or state agency, fire, district,

club or other individual or group commences any activity set forth in § 2-1-21 without first

having obtained the approval of the director, or violates any rule or regulation of the director, the

director has the power by written notice to order the violator to cease and desist immediately

and/or restore the freshwater wetlands, buffers, floodplains or other jurisdictional areas to their

original state insofar as possible. Any order or notice to restore wetlands is eligible for

recordation under chapter 13 of title 34 and shall be recorded in the land evidence records in the

city or town where the subject wetland is located, and any subsequent transferee of the wetland is

responsible for complying with the requirements of the order or notice. If the violator and/or

subsequent transferee is ordered to restore the wetlands to the original state, and the violator

and/or subsequent transferee does not complete the restoration within a reasonable time following

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the order of the director, the director has the authority to order the work done by an agent of the

director's choosing, and the person, agent or subsequent transferee is liable for the cost of the

restoration. If the violator and/or subsequent transferee does not conform to the director's order,

the director may bring prosecution by complaint and warrant and the prosecution shall be made in

the district court of the state. The director, without being required to enter into any recognizance

or to give surety for cost, may institute the proceedings in the name of the state. It is the duty of

the attorney general to conduct the prosecution of all proceedings brought by the director.

      (b) The director may obtain relief in equity or by prerogative writ whenever relief is

necessary for the proper performance of duties under §§ 2-1-18 -- 2-1-24.

      (c) Any person who violates an order of the director shall be punished by a fine not

exceeding five hundred dollars ($500) or by imprisonment not exceeding thirty (30) days or by

both, and every person is deemed guilty of a separate and distinct offense for each day during

which the violation is repeated or continued.

      (d) For the purposes of this section, the building inspector of the city of Warwick or

town of Warren is deemed the authorized agent of the director and is vested with all the duties,

powers and authority granted by this section to the director of environmental management to be

exercised solely with respect to projects or property within his or her respective city or town. It

shall be the duty of the attorney general of the state to conduct the prosecution of all proceedings

brought by the building inspector in accordance with this section. Nothing contained in this

section is deemed to divest the director of environmental management of any duty, power or

authority granted by this chapter.

     2-1-25. Severability. -- If any provision of §§ 2-1-20 -- 2-1-25 2-1-27 or of any rule,

regulation, or determination made under these sections, or the application of these sections to any

person, agency, or circumstances, is held invalid by a court of competent jurisdiction, the

remainder of §§ 2-1-20 -- 2-1-25 2-1-27, or the rule, regulation, or determination, and the

application of those provisions to other persons, agencies, or circumstances shall not be affected.

The invalidity of any section or sections or parts of any section or sections of §§ 2-1-20 -- 2-1-25

2-1-27 shall not affect the validity of the remainder of §§ 2-1-20 -- 2-1-25 2-1-27.

     SECTION 2. Chapter 2-1 of the General Laws entitled "Agricultural Functions of

Department of Environmental Management" is hereby amended by adding thereto the following

sections:

     2-1-27. Access to information on freshwater wetland applications. -- The directors of

the department and the coastal resources management council shall establish procedures that will

provide municipalities and the public with access to information concerning freshwater wetland

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permit applications filed with the state. Procedures shall be designed to facilitate municipal input

during the permit application review process and shall, to the extent feasible, utilize information

technology to automate making information available in a timely manner. Procedures to facilitate

local input shall be established and implemented in a manner that avoids introducing delay in

issuance of permit decisions.

     2-1-28. Effect on zoning ordinances. -- Local zoning ordinances and regulations that are

inconsistent with this chapter shall be amended to conform to the requirements of § 45-24-30.

     SECTION 3. Sections 45-24-29, 45-24-30 and 45-24-33 of the General Laws in Chapter

45-24 entitled "Zoning Ordinances" are hereby amended to read as follows:

     45-24-29. Legislative findings and intent. -- (a) (1) The general assembly recognizes

and affirms in §§ 45-24-27 through 45-24-72 that the findings and goals stated in § 45-22.2-3

present findings and goals with which zoning must be consistent.

      (2) The general assembly further finds that:

      (i) The zoning enabling statutes contained in §§ 45-24-1 through 45-24-26, repealed as

of December 31, 1994, were largely enacted in 1921;

      (ii) The character of land development and related public and private services have

changed substantially in the intervening years;

      (iii) It is necessary to provide for innovative land development practices to enable cities

and towns to adequately regulate the use of land and employ modern land development practices;

      (iv) It is necessary to take full account of the requirement that each city and town amend

its zoning ordinance to conform to and be consistent with its comprehensive plan adopted

pursuant to chapter 22.2 of this title, and to all the elements contained therein; and

      (v) A substantial updating and revision of the original statutory zoning enabling

authority is required to meet these changed conditions.

      (3) It is therefore found that the preparation and implementation of zoning ordinances is

necessary to address the findings and needs identified in this section; to protect the public health,

safety, and general welfare; to allow the general assembly to carry out its duty to provide for the

conservation of the natural resources of the state and to adopt all means necessary and proper by

law for the preservation, regeneration, and restoration of the natural environment of the state in

accordance with R.I. Const., art. 1, §§ 16 and 17; to promote good planning practice; and to

provide for sustainable economic growth in the state.

      (b) Therefore, it is the intent of the general assembly:

      (1) That the zoning enabling authority contained in this chapter provide all cities and

towns with adequate opportunity to address current and future community and statewide needs;

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      (2) That the zoning enabling authority contained in this chapter require each city and

town to conform its zoning ordinance and zoning map to be consistent with its comprehensive

plan developed pursuant to chapter 22.2 of this title;

      (3) That Except as prohibited pursuant to §§ 45-24-30(b), 45-24-30(c), or 45-24-30(d)

that the zoning enabling authority contained in this chapter empower each city and town with the

capability to establish and enforce standards and procedures for the proper management and

protection of land, air, and water as natural resources, and to employ contemporary concepts,

methods, and criteria in regulating the type, intensity, and arrangement of land uses, and provides

authority to employ new concepts as they may become available and feasible;

      (4) That the zoning enabling authority contained in this chapter permit each city and

town to establish an economic impact commission whose duties would be to advise

municipalities on the economic impact new zoning changes would have on cities and towns and

private property owners, and to assist municipalities in determining financial impacts when new

or changed zoning adversely affects business climate, land use, property value, natural and

historic resources, industrial use, or development of private property; and may permit the use of

land and buildings within the groundwater protection zones for agricultural purposes and shall

encourage the use of farmland in a manner which is consistent with the protection of groundwater

resources; and

      (5) That each city and town amend its zoning ordinance to comply with the terms of this

chapter.

     45-24-30. General purposes of zoning ordinances. – (a) Zoning regulations shall be

developed and maintained in accordance with a comprehensive plan prepared, adopted, and as

may be amended, in accordance with chapter 22.2 of this title and shall be designed to address the

following purposes. The general assembly recognizes these purposes, each with equal priority and

numbered for reference purposes only.

      (1) Promoting the public health, safety, and general welfare.

      (2) Providing for a range of uses and intensities of use appropriate to the character of the

city or town and reflecting current and expected future needs.

      (3) Providing for orderly growth and development which recognizes:

      (i) The goals and patterns of land use contained in the comprehensive plan of the city or

town adopted pursuant to chapter 22.2 of this title;

      (ii) The natural characteristics of the land, including its suitability for use based on soil

characteristics, topography, and susceptibility to surface or groundwater pollution;

      (iii) The values and dynamic nature of coastal and freshwater ponds, the shoreline, and

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freshwater and coastal wetlands;

      (iv) The values of unique or valuable natural resources and features;

      (v) The availability and capacity of existing and planned public and/or private services

and facilities;

      (vi) The need to shape and balance urban and rural development; and

      (vii) The use of innovative development regulations and techniques.

      (4) Providing for the control, protection, and/or abatement of air, water, groundwater,

and noise pollution, and soil erosion and sedimentation.

      (5) Providing for the protection of the natural, historic, cultural, and scenic character of

the city or town or areas in the municipality.

      (6) Providing for the preservation and promotion of agricultural production, forest,

silviculture, aquaculture, timber resources, and open space.

      (7) Providing for the protection of public investment in transportation, water, stormwater

management systems, sewage treatment and disposal, solid waste treatment and disposal, schools,

recreation, public facilities, open space, and other public requirements.

      (8) Promoting a balance of housing choices, for all income levels and groups, to assure

the health, safety and welfare of all citizens and their rights to affordable, accessible, safe, and

sanitary housing.

      (9) Providing opportunities for the establishment of low and moderate income housing.

      (10) Promoting safety from fire, flood, and other natural or unnatural disasters.

      (11) Promoting a high level of quality in design in the development of private and public

facilities.

      (12) Promoting implementation of the comprehensive plan of the city or town adopted

pursuant to chapter 22.2 of this title.

      (13) Providing for coordination of land uses with contiguous municipalities, other

municipalities, the state, and other agencies, as appropriate, especially with regard to resources

and facilities that extend beyond municipal boundaries or have a direct impact on that

municipality.

      (14) Providing for efficient review of development proposals, to clarify and expedite the

zoning approval process.

      (15) Providing for procedures for the administration of the zoning ordinance, including,

but not limited to, variances, special-use permits, and, where adopted, procedures for

modifications.

      (16) Providing opportunities for reasonable accommodations in order to comply with the

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Rhode Island Fair Housing Practices Act, chapter 37 of title 34, the United States Fair Housing

Amendments Act of 1988 (FHAA), the Rhode Island Civil Rights of Persons with Disabilities

Act, chapter 87 of title 42, and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §

12101 et seq.

      Provided, however, that any zoning ordinance in which a community sets forth standards

or requirements for the location, design, construction, or maintenance of on-site sewage disposal

wastewater treatment systems shall first be submitted to the director of the department of

environmental management and the department of health for approval as to the technical merits of

the ordinance. In addition, any zoning ordinance in which a municipality sets forth standards

regarding wetland setbacks or requirements, shall first be submitted to the director of the

department of environmental management for approval as to the technical merits of the

ordinance.

     (b) Upon the effective date of this section, a city or town shall no longer be authorized to

adopt as a provision of its zoning ordinance new requirements that specify buffers or setbacks in

relation to freshwater wetland, freshwater wetland in the vicinity of the coast, or coastal wetland

or that specify setback distances between an onsite wastewater treatment system and a freshwater

wetlands, freshwater wetland in the vicinity of the coast or coastal wetland.

     (c) Upon promulgation of state regulations to designate wetland buffers and setbacks

pursuant to §§ 2-1-18 through 2-1-27, cities and towns shall be prohibited from applying the

requirements in existing zoning ordinances pertaining to both wetland buffers and onsite

wastewater treatment system setbacks to development applications submitted to a municipality

after the effective date of said state regulations. All applications for development that were

submitted to a municipality prior to the effective date of state regulations designating wetland

buffers and setbacks, will remain subject to, as applicable, the zoning provisions pertaining to

wetland buffers or setbacks for onsite wastewater treatment systems that were in effect at the time

the application was originally filed or granted approval, subject to the discretion of the

municipality to waive such requirements. Nothing herein shall rescind the authority of a city or

town to enforce local zoning requirements.

     (d) Cities and towns shall act to amend their ordinances and regulations to conform to

this section within twelve (12) months of the effective date of state regulations referenced herein.

     45-24-33. Standard provisions. -- (a) A zoning ordinance addresses each of the purposes

stated in § 45-24-30 and addresses, through reasonable objective standards and criteria, the

following general provisions which are numbered for reference purposes only except as

prohibited by §§ 45-24-30(b), 45-24-30(c), or 45-24-30(d):

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      (1) Permitting, prohibiting, limiting, and restricting the development of land and

structures in zoning districts, and regulating those land and structures according to their type, and

the nature and extent of their use;

      (2) Regulating the nature and extent of the use of land for residential, commercial,

industrial, institutional, recreational, agricultural, open space, or other use or combination of uses,

as the need for land for those purposes is determined by the city or town's comprehensive plan;

      (3) Permitting, prohibiting, limiting, and restricting buildings, structures, land uses, and

other development by performance standards, or other requirements, related to air and water and

groundwater quality, noise and glare, energy consumption, soil erosion and sedimentation, and/or

the availability and capacity of existing and planned public or private services;

      (4) Regulating within each district and designating requirements for:

      (i) The height, number of stories, and size of buildings;

      (ii) The dimensions, size, lot coverage, floor area ratios, and layout of lots or

development areas;

      (iii) The density and intensity of use;

      (iv) Access to air and light, views, and solar access;

      (v) Open space, yards, courts, and buffers;

      (vi) Parking areas, road design, and, where appropriate, pedestrian, bicycle, and other

circulator systems;

      (vii) Landscaping, fencing, and lighting;

      (viii) Appropriate drainage requirements and methods to manage stormwater runoff;

      (ix) Public access to waterbodies, rivers, and streams; and

      (x) Other requirements in connection with any use of land or structure;

      (5) Permitting, prohibiting, limiting, and restricting development in flood plains or flood

hazard areas and designated significant natural areas;

      (6) Promoting the conservation of energy and promoting energy-efficient patterns of

development;

      (7) Providing for the protection of existing and planned public drinking water supplies,

their tributaries and watersheds, and the protection of Narragansett Bay, its tributaries and

watershed;

      (8) Providing for adequate, safe, and efficient transportation systems; and avoiding

congestion by relating types and levels of development to the capacity of the circulation system,

and maintaining a safe level of service of the system;

      (9) Providing for the preservation and enhancement of the recreational resources of the

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city or town;

      (10) Promoting an economic climate which increases quality job opportunities and the

overall economic well-being of the city or town and the state;

      (11) Providing for pedestrian access to and between public and private facilities,

including, but not limited to schools, employment centers, shopping areas, recreation areas, and

residences;

      (12) Providing standards for and requiring the provision of adequate and properly

designed physical improvements, including plantings, and the proper maintenance of property;

      (13) Permitting, prohibiting, limiting, and restricting land use in areas where

development is deemed to create a hazard to the public health or safety;

      (14) Permitting, prohibiting, limiting, and restricting extractive industries and earth

removal and requiring restoration of land after these activities;

      (15) Regulating sanitary landfill, except as otherwise provided by state statute;

      (16) Permitting, prohibiting, limiting, and restricting signs and billboards, and other

outdoor advertising devices;

      (17) Designating airport hazard areas under the provisions of chapter 3 of title 1, and

enforcement of airport hazard area zoning regulations under the provisions established in that

chapter;

      (18) Designating areas of historic, cultural, and/or archaeological value and regulating

development in those areas under the provisions of chapter 24.1 of this title;

      (19) Providing standards and requirements for the regulation, review, and approval of

any proposed development in connection with those uses of land, buildings, or structures

specifically designated as subject to development plan review in a zoning ordinance;

      (20) Designating special protection areas for water supply and limiting or prohibiting

development in these areas, except as otherwise provided by state statute;

      (21) Specifying requirements for safe road access to developments from existing streets,

including limiting the number, design, and location of curb cuts, and provisions for internal

circulation systems for new developments, and provisions for pedestrian and bicycle ways; and

      (22) Reducing unnecessary delay in approving or disapproving development

applications, through provisions for preapplication conferences and other means.

      (23) Providing for the application of the Rhode Island Fair Housing Practices Act,

chapter 37 of title 34, the United States Fair Housing Amendments Act of 1988 (FHAA), the

Rhode Island Civil Rights People with Disabilities Act, chapter 37 of title 42, and the Americans

with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq.

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      (24) Regulating drive-through windows of varied intensity of use when associated with

land use activities and providing standards and requirements for the regulation, review and

approval of the drive-through windows, including, but not limited to:

      (i) Identifying within which zoning districts drive-through windows may be permitted,

prohibited, or permitted by special use permit;

      (ii) Specifying requirements for adequate traffic circulation; and

      (iii) Providing for adequate pedestrian safety and access, including issues concerning

safety and access for those with disabilities.

      (b) A zoning ordinance may include special provisions for any or all of the following:

      (1) Authorizing development incentives, including, but not limited to, additional

permitted uses, increased development and density or additional design or dimensional flexibility

in exchange for:

      (i) Increased open space;

      (ii) Increased housing choices;

      (iii) Traffic and pedestrian improvements;

      (iv) Public and/or private facilities; and/or

      (v) Other amenities as desired by the city or town and consistent with its comprehensive

plan. The provisions in the ordinance shall include maximum allowable densities of population

and/or intensities of use and shall indicate the type of improvements, amenities, and/or

conditions. Conditions may be made for donation in lieu of direct provisions for improvements or

amenities;

      (2) Establishing a system for transfer of development rights within or between zoning

districts designated in the zoning ordinance; and

      (3) Regulating the development adjacent to designated scenic highways, scenic

waterways, major thoroughfares, public greenspaces, or other areas of special public investment

or valuable natural resources.

      (c) Slope of land shall not be excluded from the calculation of the buildable lot area or

the minimum lot size, or in the calculation of the number of buildable lots or units.

      (d) Nothing in this section shall be construed to restrict a municipality's right, within

state and local regulations, to establish its own minimum lot size per zoning district in its town or

city.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO AGRICULTURE AND FORESTRY - AGRICULTURE FUNCTIONS OF

DEPARTMENT OF ENVIRONMENTAL MANAGEMENT

***

     This act would amend certain provisions of the general laws relative to the regulation of

freshwater wetlands, by establishing state standards for freshwater buffers and setbacks to be

promulgated by the coastal resources management council.

     This act would take effect upon passage.

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