2019 -- S 0414

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LC001769

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2019

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A N   A C T

RELATING TO TOWNS AND CITIES - ZONING ORDINANCES

     

     Introduced By: Senators Lombardi, Archambault, Ciccone, and McCaffrey

     Date Introduced: February 27, 2019

     Referred To: Senate Environment & Agriculture

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 45-24-31 of the General Laws in Chapter 45-24 entitled "Zoning

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Ordinances" is hereby amended to read as follows:

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     45-24-31. Definitions. [Effective March 1, 2019.]

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

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

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

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

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ordinances created under this chapter:

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

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with no intervening land.

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

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

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

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occupied and that meets the following provisions:

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

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

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

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

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

 

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

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principal structure remains that of a one-family residence.

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

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

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

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principal use to which it is related.

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

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

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

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the zoning ordinance of a city or town; or

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     (ii) Anyone requiring notice pursuant to this chapter.

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

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

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

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

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

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

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approval, or permitting purposes.

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

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screen or mitigate the impacts of development on surrounding areas, properties, or rights-of-way.

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

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occupancy.

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

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

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

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

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

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

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

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

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

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

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shall be measured from base flood elevation, and where freeboard, as defined in this section, is

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being utilized or proposed, such freeboard area, not to exceed five feet (5'), shall be excluded

 

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from the building height calculation; provided, however that the Rhode Island coastal resources

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management council design elevation maps may be used by an owner or applicant to establish a

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base flood elevation for a property that is higher than the official FEMA FIRMs.

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

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

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

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

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

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

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

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permitted under conventional development except where ordinance provisions include incentive

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bonuses for certain types or conditions of development.

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     (14) Common ownership. Either:

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

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or more contiguous lots; or

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

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more lots under specific development techniques.

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

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

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halfway houses or substance-use-disorder-treatment facilities. This does include, but is not

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limited to, the following:

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     (i) Whenever six (6) or fewer children or adults with intellectual and/or developmental

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disability reside in any type of residence in the community, as licensed by the state pursuant to

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chapter 24 of title 40.1. All requirements pertaining to local zoning are waived for these

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community residences;

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

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

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

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

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72.1 of title 42;

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

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

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

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

 

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

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

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

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situation.

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

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

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compliance.

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

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home.

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

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

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

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(8) individuals receiving day care.

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

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

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

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

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

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

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the stated purposes and standards of the ordinance.

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

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

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

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

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

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

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

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

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

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

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

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

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

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also "household".

 

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

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

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requirements, is approved.

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

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

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

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

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the hydrological effect of urbanization of the watershed.

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

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

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

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a functional member of society.

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     (32) Hardship. See § 45-24-41.

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     (33) Historic district or historic site. As defined in § 45-22.2-4.

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

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

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

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

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

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

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

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the following:

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

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

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

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

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

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specified in local ordinances.

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

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industrial, institutional, and other activities.

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

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

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

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

 

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ordinance.

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     (39) Lot. Either:

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

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regulations; or

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

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

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purposes of transfer of title.

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

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way, usually reported in acres or square feet.

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     (41) Lot area, minimum. The smallest land area established by the local zoning ordinance

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

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

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buildings and accessory buildings.

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

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

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

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

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

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

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

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

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street, for example, corner and through lots;

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

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

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

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

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

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

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herein.

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

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

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

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

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line.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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area per dwelling unit regulations, is nonconforming by dimension.

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

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

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

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with other applicable state and federal laws.

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

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

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

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district.

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     (56) Planned development. A "land-development project", as defined in subsection (38),

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

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with appurtenant common areas.

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

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

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

 

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

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

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

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within which the principal structure must be erected or placed.

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

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and/or the proposed conditions of the lot.

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

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surface of the ground.

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

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

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special exception.

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

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

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

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

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provisions of that ordinance.

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

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

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

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

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

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

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

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

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

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zoning ordinance.

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

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

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

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

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

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the relief is granted are not grounds for relief.

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

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

 

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

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     (70) Wind energy system, large. A vertical device, greater than two hundred feet (200') in

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height from the average, existing-grade elevation where the foundation of the structure is

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proposed, or a system that generates more than one hundred kilowatts (100 kw), that converts the

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wind's kinetic energy into electrical energy.

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     (71) Wind energy system, residential. Small, free standing or roof mounted systems that

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converts the wind's kinetic energy into electrical energy.

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     (72) Wind energy system, small. A vertical device, less than two hundred feet (200') in

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height from the average, existing-grade elevation where the foundation of the structure is

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proposed, or a system that generates less than one hundred kilowatts (100 kw), that converts the

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wind's kinetic energy into electrical energy.

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

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

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

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or is an authorized variance or modification therefrom.

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

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

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town.

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

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

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

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relating to the nature and extent of uses of land and structures; that is consistent with the

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

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zoning map; and that complies with the provisions of this chapter.

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     (73)(76) Zoning-use district. The basic unit in zoning, either mapped or unmapped, to

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

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

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

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combined.

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

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amended by adding thereto the following section:

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     45-24-46.5. Special provisions. Wind energy systems.

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     (a) Wind energy systems reduce reliance on fossil fuels, and are included in the Rhode

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Island Division of Planning State Guide Plan Element Report #120, entitled "Energy 2035: Rhode

 

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Island State Energy Plan".

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     (b) A zoning ordinance may provide for review and approval of dimensional variances,

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use variances, and special-use permits for wind energy systems, large, wind energy systems,

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small and wind energy systems, residential, as defined in § 45-24-31; provided, the ordinance

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establishes requirements and guidelines consistent with the latest technical paper on renewable

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energy sitting guidelines for terrestrial wind energy systems published by the statewide planning

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program.

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     (c) A zoning ordinance, notwithstanding any other provision of this chapter, shall require

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notice, sent by first-class mail, to all property owners in or within:

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     (1) Not less than five hundred feet (500') or three (3) times the height, in feet, of the

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proposed wind energy system, small, whichever is greater; or

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     (2) One thousand feet (1,000') or three (3) times the height, in feet, of the proposed wind

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energy system, large;

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     (3) Both subsections (c)(1) and (c)(2) of this section, shall be measured from the

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boundaries of the proposed parcel.

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     SECTION 3. This act shall take effect on March 1, 2019.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES - ZONING ORDINANCES

***

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     This act would define small, large and residential wind energy systems and provide that

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the zoning ordinance concerning wind energy systems shall establish requirements and guidelines

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consistent with the latest technical paper on renewable energy siting guidelines for terrestrial

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wind energy systems published by the statewide planning program. This act would further require

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that notice of the zoning ordinance be sent, by first-class mail, to certain property owners.

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     This act would take effect on March 1, 2019.

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