2017 -- H 5476

========

LC001350

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

____________

A N   A C T

RELATING TO TOWNS AND CITIES -- ZONING ORDINANCES

     Introduced By: Representatives Shekarchi, Bennett, Shanley, Cunha, and Hull

     Date Introduced: February 15, 2017

     Referred To: House Municipal Government

     (Dept. of Administration)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 45-24-29, 45-24-31 and 45-24-46 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     (i) The zoning enabling statutes contained in §§45-24-1 through 45-24-26, repealed as of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. I, Sec. XVI and XVII; 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;

     (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) 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 provide

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 that 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.

     (c) The general assembly also recognizes that the municipal zoning ordinance can assist

in timely recovery after a state of emergency or local disaster emergency, and, recognizing that

disasters often cause loss of life, human suffering, loss of income, property loss and damage, and

disruptions to the normal functioning of governments and communities, and declares that timely

disaster recovery requires expedited procedures for reviewing dimensional variances.

     45-24-31. Definitions.

LC001350 - Page 2 of 17

     Where words or terms used in this chapter are defined in §45-22.2-4, or 45-23-32, they

have the meanings stated in that section. In addition, the following words have the following

meanings. Additional words and phrases may be used in developing local ordinances under this

chapter; however, the words and phrases defined in this section are controlling in all local

ordinances created under this chapter:

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

with no intervening land.

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

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

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

occupied and that meets the following provisions:

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

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

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

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

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

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

structure remains that of a one-family residence.

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

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

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

principal use to which it is related.

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

     (i) Any person, or persons, or entity, or entities, who or that can demonstrate that his, her,

or its property will be injured by a decision of any officer or agency responsible for administering

the zoning ordinance of a city or town; or

     (ii) Anyone requiring notice pursuant to this chapter.

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

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

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

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

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

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

approval, or permitting purposes.

LC001350 - Page 3 of 17

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

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

way.

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

occupancy.

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

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

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

     (12) Building Height. For a vacant parcel of land, building height shall be measured from

the average, existing-grade elevation where the foundation of the structure is proposed. For an

existing structure, building height shall be measured from average grade taken from the outermost

four (4) corners of the existing foundation. In all cases, building height shall be measured to the

top of the highest point of the existing or proposed roof or structure. This distance shall exclude

spires, chimneys, flag poles, and the like. For any property or structure located in a special flood

hazard area, as shown on the official FEMA Flood Insurance Rate Maps (FIRMs), where

freeboard, as defined in this section, is being utilized or proposed, such freeboard area, not to

exceed five feet (5'), shall be excluded from the building height calculation.

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

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

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

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

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

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

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

permitted under conventional development except where ordinance provisions include incentive

bonuses for certain types or conditions of development.

     (14) Common Ownership. Either:

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

or more contiguous lots; or

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

more lots under specific development techniques.

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

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

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

LC001350 - Page 4 of 17

the following:

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

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

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

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

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

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

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

72.1 of title 42;

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

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

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

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

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

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

purpose of fostering independence, self-sufficiency, and eventual transition to a permanent living

situation.

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

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

compliance.

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

home.

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

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

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

(8) individuals receiving day care.

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

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

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

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

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

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

the stated purposes and standards of the ordinance.

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

LC001350 - Page 5 of 17

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

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

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

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

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

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

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

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

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

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

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

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

also "household".

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

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

requirements, is approved.

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

     (29) Freeboard. A factor of safety expressed in feet above the base flood elevation of a

flood hazard area for purposes of floodplain management. Freeboard compensates for the many

unknown factors that could contribute to flood heights such as wave action, bridge openings, and

the hydrological effect of urbanization of the watershed.

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

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

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

a functional member of society.

     (32) Hardship. See §45-24-41.

     (33) Historic District, or Historic Site. As defined in §45-22.2-4.

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

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

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

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

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

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

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

LC001350 - Page 6 of 17

the following:

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

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

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

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

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

specified in local ordinances.

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

industrial, institutional, and other activities.

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

land are developed or redeveloped as a coordinated site for one or more uses, units, or structures,

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

commercial, institutional, recreational, open space, and/or mixed uses as provided in the zoning

ordinance.

     (39) Lot. Either:

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

regulations; or

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

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

purposes of transfer of title.

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

way, usually reported in acres or square feet.

     (41) Lot Area, Minimum. The smallest land area established by the local zoning

ordinance upon which a use, building, or structure may be located in a particular zoning district.

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

buildings and accessory buildings.

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

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

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

how noncontiguous frontage will be considered with regard to minimum frontage requirements.

     (45) Lot Line. A line of record, bounding a lot, that divides one lot from another lot or

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

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

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

LC001350 - Page 7 of 17

street, for example, corner and through lots;

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

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

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

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

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

     (46) Lot Size, Minimum. Shall have the same meaning as "minimum lot area" defined

herein.

     (47) Lot, Through. A lot that fronts upon two (2) parallel streets, or that fronts upon two

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

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

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

line.

     (49) Mere Inconvenience. See §45-24-41.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

area per dwelling unit regulations, is nonconforming by dimension.

     (53) Overlay District. A district established in a zoning ordinance that is superimposed on

LC001350 - Page 8 of 17

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

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

with other applicable state and federal laws.

     (54) Performance Standards. A set of criteria or limits relating to elements that a

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

     (55) Permitted Use. A use by right that is specifically authorized in a particular zoning

district.

     (56) Planned Development. A "land development project", as defined in §45-24-31(38),

and developed according to plan as a single entity and containing one or more structures and/or

uses with appurtenant common areas.

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

     (58) Preapplication Conference. A review meeting of a proposed development held

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

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

     (59) Setback Line or Lines. A line, or lines, parallel to a lot line at the minimum distance

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

within which the principal structure must be erected or placed.

     (60) Site Plan. The development plan for one or more lots on which is shown the existing

and/or the proposed conditions of the lot.

     (61) Slope of Land. The grade, pitch, rise, or incline of the topographic landform or

surface of the ground.

     (62) Special Use. A regulated use that is permitted pursuant to the special-use permit

issued by the authorized governmental entity, pursuant to §45-24-42. Formerly referred to as a

special exception.

     (63) Structure. A combination of materials to form a construction for use, occupancy, or

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

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

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

provisions of that ordinance.

     (65) Use. The purpose or activity for which land or buildings are designed, arranged, or

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

     (66) Variance. Permission to depart from the literal requirements of a zoning ordinance.

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

establishment or maintenance of a use of land, that is prohibited by a zoning ordinance. There are

LC001350 - Page 9 of 17

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

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

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

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

zoning ordinance.

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

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

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

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

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

the relief is granted are not grounds for relief.

     (67) Waters. As defined in §46-12-1(23).

     (68) Wetland, Coastal. As defined in §45-22.2-4.

     (69) Wetland, Freshwater. As defined in §2-1-20.

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

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

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

or is an authorized variance or modification therefrom.

     (71) Zoning Map. The map, or maps, that are a part of the zoning ordinance and that

delineate the boundaries of all mapped zoning districts within the physical boundary of the city or

town.

     (72) Zoning Ordinance. An ordinance enacted by the legislative body of the city or town

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

town's legislative or home rule charter, if any, that establish regulations and standards relating to

the nature and extent of uses of land and structures; that is consistent with the comprehensive plan

of the city or town as defined in chapter 22.2 of this title; that includes a zoning map, and that

complies with the provisions of this chapter.

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

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

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

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

     (74) Detailed Report. A written report of a local building official that describes the

damage sustained to a property as a result of a state of emergency or local disaster emergency.

     (75) Disaster Recovery Modification. Permission granted and administered by the zoning

LC001350 - Page 10 of 17

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

dimensional variance from the zoning ordinance, as determined by the zoning ordinance of the

city or town, following structural damage that is sustained as a result of a state of emergency or

local disaster emergency and that is documented in a detailed report.

     (76) Disaster Recovery Variance. A dimensional variance that is requested following

structural damage that is sustained as a result of a state of emergency or local disaster emergency

and that is documented in a detailed report.

     (77) Local Disaster Emergency. Declaration by the municipal chief executive officer,

stating that a disaster has occurred or that the threat thereof is imminent, pursuant to §30-15-13.

     (78) Municipal chief executive officer. The mayor, town or city manager, or town or city

administrator, or in municipalities where nonesuch exists, the town or city council president.

     (79) State of Emergency. Declaration by executive order or proclamation of the governor

of Rhode Island, stating that a disaster has occurred or that the occurrence or the threat thereof is

imminent, pursuant to §30-15-9.

     45-24-46. Special provisions -- Modification.

     (a) A zoning ordinance may provide for the issuance of modifications or adjustments

from the literal dimensional requirements of the zoning ordinance in the instance of the

construction, alteration, or structural modification of a structure or lot of record. If the ordinance

allows modifications then the zoning enforcement officer is authorized to grant modification

permits. The zoning ordinance establishes the maximum percent allowed for a modification,

which shall not exceed twenty-five percent (25%), of any of the dimensional requirements

specified in the zoning ordinance. A modification does not permit moving of lot lines. The zoning

ordinance shall specify which dimensional requirements or combinations of these requirements

are allowable under a modification. These requirements may differ by use or zoning district.

     (b) Within ten (10) days of the receipt of a request for a modification, the zoning

enforcement officer shall make a decision as to the suitability of the requested modification based

on the following determinations:

     (1) The modification requested is reasonably necessary for the full enjoyment of the

permitted use;

     (2) If the modification is granted, neighboring property will neither be substantially

injured nor its appropriate use substantially impaired;

     (3) The modification requested is in harmony with the purposes and intent of the

comprehensive plan and zoning ordinance of the city or town; and

     (4) The modification requested does not require a variance of the floor plain development

LC001350 - Page 11 of 17

standards a flood hazard requirement.

     (b)(c) Upon an affirmative determination, the zoning enforcement officer shall notify, by

registered or certified first class mail, all property owners abutting the property which is the

subject of the modification request, and shall indicate the street address of the subject property in

the notice, and shall publish in a newspaper of general circulation within the city or town that the

modification will be granted unless written objection is received within thirty (30) days of the

public notice. If written objection is received within thirty (30) days, the request for a

modification shall be denied. In that case the changes requested will be considered a request for a

variance and may only be issued by the zoning board of review following the standard procedures

for variances. If no written objections are received within thirty (30) days, the zoning

enforcement officer shall grant the modification. The zoning enforcement officer may apply any

special conditions to the permit as may, in the opinion of the officer, be required to conform to

the intent and purposes of the zoning ordinance. The zoning enforcement officer shall keep public

records of all requests for modifications, and of findings, determinations, special conditions, and

any objections received. Costs of any notice required under this subsection shall be borne by the

applicant requesting the modification.

     SECTION 2. Chapter 45-24 of the General Laws entitled "Zoning Ordinances" is hereby

amended by adding thereto the following sections:

     45-24-41.1. Variances -- Disaster recovery.

     (a) A zoning ordinance may provide that the zoning board of review and zoning

enforcement officer shall follow the procedures outlined in subsections (b) through (g) of this

section in the review of disaster recovery variance applications following the declaration of a

state of emergency or local disaster emergency. If disaster recovery variance provisions exist

within the zoning ordinance, the zoning ordinance shall identify which of the following

mechanism(s) shall invoke the use of the provisions:

     (1) Declaration of a state of emergency or declaration of a state of emergency followed

by a proclamation by the municipal chief executive officer that the effects of the state of

emergency on the municipality are of significant impact to warrant the utilization of the disaster

recovery variance process; and/or

     (2) Declaration of a local disaster emergency.

     (b) Owners of real property may file an application for a disaster recovery variance with

the zoning enforcement officer or agency that describes the request and provides any data and

evidence that may be required by the terms of the ordinance. The zoning enforcement officer or

agency shall determine whether the application shall be eligible for review under this section and

LC001350 - Page 12 of 17

shall transmit eligible applications to the zoning board of review. Such applications shall be

received by the zoning enforcement officer or agency for a limited period following the activation

of the disaster recovery variance procedures as provided by the ordinance, which shall be a period

of not less than six (6) months.

     (c) The zoning board of review shall hold a public hearing on any eligible application for

a disaster recovery variance. Public hearings at which disaster recovery variances will be

considered shall be held within thirty (30) days of receipt, in proper form, of an application.

     (1) All public hearings at which disaster recovery variances will be considered shall be

publicly noticed not less than seven (7) calendar days prior to the date of the hearing as follows:

     (i) Public notice of the hearing shall be given in a newspaper of general circulation in the

city or town or on the municipality's website.

     (ii) Notice shall be sent, by first class mail, to the owners of all property within a two

hundred foot (200') radius of the property for which relief is being sought.

     (iii) Notice shall be posted at the location under consideration in the form of a sign

measuring a minimum of thirty-six inches (36") by twenty-four inches (24") and using a type size

whereby the text of the sign can be read from the property frontage.

     (2) All notices required under §45-24-41.1(c)(1) shall:

     (i) Specify the place of the hearing and the date and time of its commencement;

     (ii) Indicate that a variance from the dimensional requirements of the zoning ordinance

following damage sustained as a result of a state of emergency or local disaster emergency, is

under consideration;

     (iii) Contain a statement of the proposed dimensional variance being requested; and

     (iv) Advise those interested where and when a copy of the matter under consideration

may be obtained or examined and copied.

     (3) The cost of all required notice shall be borne by the applicant.

     (d) When considering disaster recovery variance applications, the zoning board of review

shall be required to hold hearings and vote as follows:

     (1) Three (3) active members are necessary to conduct a hearing. As soon as a conflict

occurs for a member, that member shall recuse themselves, shall not sit as an active member, and

shall take no part in the conduct of the hearing.

     (2) The concurring vote of a majority of the members of the zoning board of review

sitting at a hearing is required to decide on a disaster recovery variance application.

     (e) In granting a disaster recovery variance, the zoning board of review and zoning

enforcement officer shall require that evidence to the satisfaction of the following standards is

LC001350 - Page 13 of 17

entered into the record of the proceedings:

     (1) That damage to the property has been formally recognized in a detailed report by a

local building official and that the hardship from which the applicant seeks relief is due to the

declared state of emergency or local disaster emergency.

     (2) That the hardship is due to the unique characteristics of the subject land or structure

and is not due to a physical or economic disability of the applicant, excepting those physical

disabilities addressed in §45-24-30(16).

     (3) That the hardship is not the result of any prior action of the applicant and does not

result primarily from the desire of the applicant to realize greater financial gain.

     (4) That the granting of the requested dimensional variance will not impair the intent or

purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based.

     (5) That the relief to be granted does not require a variance of the floodplain development

standards.

     (6) That the hardship suffered by the owner of the subject property, if the disaster

recovery variance is not granted, amounts to more than a mere inconvenience. The fact that a use

may be more profitable or that a structure may be more valuable after the relief is granted is not

grounds for relief.

     (f) A zoning ordinance that authorizes the review of disaster recovery variances may

specify which dimensional requirements or combinations of these requirements are allowable

under a disaster recovery variance, but shall include, at a minimum, relief of front yard setback

and building height requirements. The zoning ordinance may stipulate additional restrictions on

the granting of disaster recovery variances as is necessary to protect the public health, safety and

welfare.

     (g) Applicants wishing to appeal decisions made pursuant to this section by the zoning

board of review shall follow the procedures outlined in §45-24-69.

     45-24-46.5. Special provisions -- Disaster recovery modification.

     (a) A zoning ordinance may provide that the zoning enforcement officer shall follow the

procedures outlined in subsections (b) through (g) of this section in the review of disaster

recovery modification applications following the declaration of a state of emergency or local

disaster emergency. If disaster recovery modification provisions exist within the zoning

ordinance, the zoning ordinance shall identify which of the following mechanism(s) shall incite

the use of the provisions:

     (1) Declaration of a state of emergency or declaration of a state of emergency followed

by a proclamation by the municipal chief executive officer that the effects of the state of

LC001350 - Page 14 of 17

emergency on the municipality are of significant impact to warrant the utilization of the disaster

recovery modification process; and/or

     (2) Declaration of a local disaster emergency.

     (b) The zoning ordinance shall establish the maximum percent allowed for a disaster

recovery modification, which shall not exceed fifty percent (50%) of any of the dimensional

requirements specified in the zoning ordinance. The percentages allowed for disaster recovery

modifications may differ by dimensional requirement, use or zoning district. The zoning

ordinance shall specify which dimensional requirements or combinations of these requirements

are allowable under a disaster recovery modification, but shall include, at a minimum,

modification of front yard setback and building height requirements.

     (c) Owners of real property may file an application for a disaster recovery modification

with the zoning enforcement officer that describes the request and provides any data and evidence

that may be required by the terms of the ordinance. The zoning enforcement officer shall

determine whether the application shall be eligible for review under this section. The applications

shall be received by the zoning enforcement officer for a limited period following the activation

of the disaster recovery modification procedures as provided by the ordinance, which shall be a

period of not less than six (6) months.

     (d) Within ten (10) days of the receipt of a request for a disaster recovery modification,

the zoning enforcement officer shall make a decision as to the suitability of the requested disaster

recovery modification based on the following determinations:

     (1) The disaster recovery modification requested is reasonably necessary for the full

enjoyment of the permitted use;

     (2) If the disaster recovery modification is granted, neighboring property will neither be

substantially injured nor its appropriate use substantially impaired;

     (3) The disaster recovery modification requested is in harmony with the purposes and

intent of the comprehensive plan and zoning ordinance of the city or town; and

     (4) The disaster recovery modification requested does not require a variance of the

floodplain development standards.

     (e) Upon an affirmative determination as to the suitability of the requested disaster

recovery modification, and not more than fifteen (15) days from the original receipt of the request

for a disaster recovery modification, the zoning enforcement officer shall:

     (i) Provide notice of the request via first class mail to all property owners within a

seventy-five foot (75') radius of the property which is the subject of the disaster recovery

modification request.

LC001350 - Page 15 of 17

     (ii) Publish notice of the request in a newspaper of general circulation within the city or

town or on the municipality's website.

     (iii) Post notice of the request at the location in the form of a sign measuring a minimum

of thirty-six inches (36") by twenty-four inches (24") and using a type size whereby the text of

the sign can be read from the property frontage.

     (f) All public notices of disaster recovery modification requests shall:

     (i) Include the street address of the subject property;

     (ii) Contain a statement of the proposed disaster recovery modification being requested

and the zoning enforcement officers determination;

     (iii) Indicate that the disaster recovery modification will be granted unless written

objection is received by the date that is ten (10) days from the date of the public notice; and

     (iv) Advise those interested where and when a copy of the application may be obtained or

examined and copied.

     (g) If written objection is received within ten (10) days of the public notice, the request

for a disaster recovery modification shall be denied. In that case, the changes requested will be

considered a request for a variance, or, if the zoning ordinance provides for such, a disaster

recovery variance, and may only be issued by the zoning board of review following the standard

procedures for variances outlined in §45-24-41 or following the procedures for disaster recovery

variances outlined in §45-24-41.1. If no written objections are received within ten (10) days, the

zoning enforcement officer shall grant the disaster recovery modification. The zoning

enforcement officer may apply any special conditions to the permit as may, in the opinion of the

officer, be required to conform to the intent and purposes of the zoning ordinance. The zoning

enforcement officer shall keep public records of all requests for disaster recovery modifications,

and of findings, determinations, special conditions, any objections received, and all public notices

published. Costs of any notice required under this subsection shall be borne by the applicant

requesting the disaster recovery modification.

     SECTION 3. This act shall take effect upon passage.

========

LC001350

========

LC001350 - Page 16 of 17

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES -- ZONING ORDINANCES

***

     This act would establish a separate variance process for certain properties that sustain

damages as a result of a state emergency or local disaster emergency.

     This act would take effect upon passage.

========

LC001350

========

LC001350 - Page 17 of 17