2016 -- S 2500

========

LC004789

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

____________

A N   A C T

RELATING TO TOWNS AND CITIES

     Introduced By: Senators McCaffrey, and Lombardi

     Date Introduced: February 25, 2016

     Referred To: Senate Housing & Municipal Government

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 45-23-66, 45-23-67, 45-23-69 and 45-23-71 of the General Laws

in Chapter 45-23 entitled "Subdivision of Land" is hereby amended to read as follows:

     45-23-66. Appeals -- Right of appeal. -- (a) Local regulations adopted pursuant to this

chapter shall provide that an appeal from any decision of the planning board, or administrative

officer charged in the regulations with enforcement of any provisions, except as provided in this

section, may be taken to the board of appeal by an aggrieved party. An aggrieved party may only

take an appeal of an approval to the board of appeals at one stage of approval, meaning at either

master, preliminary or final approval. Appeals from a decision granting or denying approval of a

final plan shall be limited to elements of the approval or disapproval not contained in the decision

reached by the planning board at the preliminary stage, providing that a public hearing has been

held on the plan pursuant to § 45-23-42.

      (b) Local regulations adopted pursuant to this chapter shall provide that an appeal from a

decision of the board of appeal may be taken by an aggrieved party to the superior court for the

county in which the municipality is situated. An aggrieved party may only take an appeal of an

approval to superior court at one stage of approval, meaning at either master, preliminary or final

approval.

     45-23-67. Appeals -- Process of appeal. -- (a) An appeal to the board of appeal from a

decision or action of the planning board or administrative officer may be taken by an aggrieved

party to the extent provided in § 45-23-66. The appeal must be taken within twenty (20) ten (10)

days after the decision has been filed and posted in the office of the city or town clerk.

      (b) The appeal shall be in writing and state clearly and unambiguously the issue or

decision which is being appealed, the reason for the appeal, and the relief sought. The appeal

shall either be sent by certified mail, with a return receipt requested, or be hand-delivered to the

board of appeal. The city or town clerk shall accept delivery of an appeal on behalf of the board

of appeal, if the local regulations governing land development and subdivision review so provide.

      (c) Upon receipt of an appeal, the board of appeal shall require the planning board or

administrative officer to immediately transmit to the board of appeal, all papers, documents and

plans, or a certified copy thereof, constituting the record of the action which is being appealed.

     45-23-69. Appeals -- Public hearing. -- (a) The board of appeal shall hold a public

hearing on the appeal within forty-five (45) thirty (30) days of the receipt of the appeal, give

public notice of the hearing, as well as due notice to the parties of interest. At the hearing any

party may appear in person, or be represented by an agent or attorney. The board shall render a

decision within ten (10) days of the close of the public hearing and shall post and record the

decision within thirty (30) days thereafter. The cost of any notice required for the hearing shall be

borne by the applicant.

      (b) The board of appeal shall only hear appeals of the actions of a planning board or

administrative officer at a meeting called especially for the purpose of hearing the appeals and

which has been so advertised.

      (c) The hearing, which may be held on the same date and at the same place as a meeting

of the zoning board of review, must be held as a separate meeting from any zoning board of

review meeting. Separate minutes and records of votes as required by § 45-23-70(d) shall be

maintained by the board of appeal.

     45-23-71. Appeals to the superior court. -- (a) An aggrieved party may appeal a

decision of the board of appeal, to the superior court for the county in which the municipality is

situated by filing a complaint stating the reasons of appeal within twenty (20) ten (10) days after

the decision has been recorded and posted in the office of the city or town clerk. An aggrieved

party may only take an appeal of an approval to superior court at one stage of approval, meaning

at either master, preliminary or final approval. The board of appeal shall file the original

documents acted upon by it and constituting the record of the case appealed from, or certified

copies of the original documents, together with any other facts that may be pertinent, with the

clerk of the court within thirty (30) fifteen (15) days after being served with a copy of the

complaint. When the complaint is filed by someone other than the original applicant or appellant,

the original applicant or appellant and the members of the planning board shall be made parties to

LC004789 - Page 2 of 6

the proceedings. The appeal does not stay proceedings upon the decision appealed from, but the

court may, in its discretion, grant a stay on appropriate terms and make any other orders that it

deems necessary for an equitable disposition of the appeal.

      (b) The review shall be conducted by the superior court without a jury. The court shall

consider the record of the hearing before the planning board and, if it 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 evidence in open court, which evidence, along with the report, shall

constitute the record upon which the determination of the court shall be made.

      (c) The court shall not substitute its judgment for that of the planning board as to the

weight of the evidence on questions of fact. The court may affirm the decision of the board of

appeal 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 which are:

      (1) In violation of constitutional, statutory, ordinance or planning board regulations

provisions;

      (2) In excess of the authority granted to the planning board 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.

     SECTION 2. Sections 45-24-64, 45-24-66 and 45-24-69 of the General Laws in Chapter

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

     45-24-64. Appeals -- Appeals to zoning board of review. -- An appeal to the zoning

board of review from a decision of any other zoning enforcement agency or officer may be taken

by an aggrieved party. The appeal shall be taken within a reasonable time twenty (20) days of the

date of the recording of the decision by the zoning enforcement officer or agency by filing with

the officer or agency from whom the appeal is taken and with the zoning board of review a notice

of appeal specifying the ground of the appeal. The officer or agency from whom the appeal is

taken shall immediately transmit to the zoning board of review all the papers constituting the

record upon which the action appealed from was taken. Notice of the appeal shall also be

transmitted to the planning board or commission.

     45-24-66. Appeals -- Public hearing by zoning board of review. -- The zoning board of

LC004789 - Page 3 of 6

review shall fix a reasonable time for the hearing of the appeal, and shall give public notice, at

least fourteen (14) days prior to the date of the hearing in a newspaper of general circulation in

the city or town. Notice of the hearing, which shall include the street address of the subject

property, shall be sent by first class mail, postage prepaid, to the appellant and to those requiring

notice under § 45-24-53. The zoning board of review shall decide the matter within a reasonable

time ten (10) days, and shall post and record its decision within thirty (30) days of the vote. Upon

the hearing, any party may appear in person or by agent or by attorney. The cost of any notice

required for the hearing shall be borne by the appellant.

     45-24-69. Appeals -- Appeals to superior court. -- (a) An aggrieved party may appeal a

decision of the zoning board of review to the superior court for the county in which the city or

town is situated by filing a complaint stating the reasons of appeal within twenty (20) ten (10)

days after the decision has been recorded and posted in the office of the city or town clerk. The

decision shall be posted in a location visible to the public in the city or town hall for a period of

twenty (20) ten (10) days following the recording of the decision in the office of the city or town

clerk. The zoning board of review shall file the original documents acted upon by it and

constituting the record of the case appealed from, or certified copies, together with other facts that

may be pertinent, with the clerk of the court within thirty (30) fifteen (15) days after being served

with a copy of the complaint. When the complaint is filed by someone other than the original

applicant or appellant, the original applicant or appellant and the members of the zoning board are

made parties to the proceedings. 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

any other orders that it deems necessary for an equitable disposition of the appeal.

      (b) If, before the date set for the 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 file that evidence and any new findings or

decisions with the superior court.

      (c) 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 appears 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 that evidence in open court, which evidence, along with the report,

LC004789 - Page 4 of 6

constitutes the record upon which the determination of the court is made.

      (d) 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 which 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.

     SECTION 3. This act shall take effect upon passage.

========

LC004789

========

LC004789 - Page 5 of 6

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES

***

     This act would amend timeframes and procedures for appeals in the zoning enabling act

and land development and subdivision review enabling act, and would also shorten the time for,

and number of, appeals during the planning board of review process.

     This act would take effect upon passage.

========

LC004789

========

LC004789 - Page 6 of 6