2019 -- S 0751

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LC002297

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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 -- LOCAL PLANNING BOARD OR COMMISSION--

ZONING ORDINANCES

     Introduced By: Senator Michael J. McCaffrey

     Date Introduced: April 04, 2019

     Referred To: Senate Housing & Municipal Government

     It is enacted by the General Assembly as follows:

     SECTION 1. Chapter 45-22 of the General Laws entitled "Local Planning Board or

Commission" is hereby amended by adding thereto the following section:

     45-22-10. Notice requirements.

     Notwithstanding any municipal charter, municipal ordinance, general or public law to the

contrary, whenever written notice shall be required pursuant to this chapter or for any matter

relative to planning boards or commissions, the notice required shall be sent by first class mail.

     SECTION 2. Sections 45-24-53, 45-24-56 and 45-24-57 of the General Laws in Chapter

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

     45-24-53. Adoption -- Notice and hearing requirements.

     (a) No zoning ordinance shall be adopted, repealed, or amended until after a public

hearing has been held upon the question before the city or town council. The city or town council

shall first give notice of the public hearing by publication of notice in a newspaper of general

circulation within the city or town at least once each week for three (3) successive weeks prior to

the date of the hearing, which may include the week in which the hearing is to be held, at which

hearing opportunity shall be given to all persons interested to be heard upon the matter of the

proposed ordinance. Written notice, which may be a copy of the newspaper notice, shall be

mailed to the statewide planning program of the department of administration, and, where

applicable, to the parties specified in subsections (b), (c), (d), (e), and (f) of this section, at least

two (2) weeks prior to the hearing. The newspaper notice shall be published as a display

advertisement, using a type size at least as large as the normal type size used by the newspaper in

its news articles, and shall:

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

     (2) Indicate that adoption, amendment, or repeal of a zoning ordinance is under

consideration;

     (3) Contain a statement of the proposed amendments to the ordinance that may be printed

once in its entirety, or summarize and describe the matter under consideration as long as the

intent and effect of the proposed ordinance is expressly written in that notice;

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

be obtained or examined and copied; and

     (5) State that the proposals shown on the ordinance may be altered or amended prior to

the close of the public hearing without further advertising, as a result of further study or because

of the views expressed at the public hearing. Any alteration or amendment must be presented for

comment in the course of the hearing.

     (b) Where a proposed general amendment to an existing zoning ordinance includes

changes in an existing zoning map, public notice shall be given as required by subsection (a) of

this section.

     (c) Where a proposed text amendment to an existing zoning ordinance would cause a

conforming lot of record to become nonconforming by lot area or frontage, written notice shall be

given to all owners of the real property as shown on the current real estate tax assessment records

of the city or town. The notice shall be given at least two (2) weeks prior to the hearing at which

the text amendment is to be considered, with the content required by subsection (a). If the city or

town zoning ordinance contains an existing merger clause to which the nonconforming lots would

be subject, the notice shall include reference to the merger clause and the impacts of common

ownership of nonconforming lots. The sender of the notice shall utilize and obtain a United States

Postal Service certificate of mailing, and the certificate or an electronic copy thereof shall be

retained to demonstrate proof of the mailing. Notice required pursuant to this section shall be sent

by first class mail.

     (d) Where a proposed amendment to an existing ordinance includes a specific change in a

zoning district map, but does not affect districts generally, public notice shall be given as required

by subsection (a) of this section, with the additional requirements that:

     (1) Notice shall include a map showing the existing and proposed boundaries, zoning

district boundaries, existing streets and roads and their names, and city and town boundaries

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where appropriate; and

     (2) Written notice of the date, time, and place of the public hearing and the nature and

purpose of the hearing shall be sent to all owners of real property whose property is located in or

within not less than two hundred feet (200') of the perimeter of the area proposed for change,

whether within the city or town or within an adjacent city or town. Notice shall also be sent to any

individual or entity holding a recorded conservation or preservation restriction on the property

that is the subject of the amendment. The notice shall be sent by registered, certified, or first-class

mail to the last known address of the owners, as shown on the current real estate tax assessment

records of the city or town in which the property is located; provided, for any notice sent by first-

class mail, the sender of the notice shall utilize and obtain a United States Postal Service

certificate of mailing, PS form 3817, or any applicable version thereof, to demonstrate proof of

such mailing.

     (e) Notice of a public hearing shall be sent by first-class mail to the city or town council

of any city or town to which one or more of the following pertain:

     (1) That is located in or within not less than two hundred feet (200') of the boundary of

the area proposed for change; or

     (2) Where there is a public or quasi-public water source, or private water source that is

used, or is suitable for use, as a public water source, within two thousand feet (2,000') of any real

property that is the subject of a proposed zoning change, regardless of municipal boundaries.

     (f) Notice of a public hearing shall be sent to the governing body of any state or

municipal water department or agency, special water district, or private water company that has

riparian rights to a surface water resource or surface watershed that is used, or is suitable for use,

as a public water source and that is within two thousand feet (2,000') of any real property that is

the subject of a proposed zoning change; provided, that the governing body of any state or

municipal water department or agency, special water district, or private water company has filed

with the building inspector in the city or town a map survey, that shall be kept as a public record,

showing areas of surface water resources and/or watersheds and parcels of land within two

thousand feet (2,000') thereof.

     (g) Notwithstanding any of the requirements set forth in subsections (a) through (e), each

municipality shall establish and maintain a public notice registry allowing any person or entity to

register for electronic notice of any changes to the zoning ordinance. The city or town shall

provide public notice annually of the existence of the electronic registry by publication of notice

in a newspaper of general circulation within the city or town. In addition, each municipality is

hereby encouraged to provide public notice of the existence of the public notice registry in all of

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its current and future communications with the public, including, but not limited to, governmental

websites, electronic newsletters, public bulletins, press releases, and all other means the

municipality may use to impart information to the local community.

     (1) Provided, however, notice pursuant to a public notice registry as per this section does

not alone qualify a person or entity on the public notice registry as an "aggrieved party" under §

45-24-31(4).

     (h) No defect in the form of any notice under this section shall render any ordinance or

amendment invalid, unless the defect is found to be intentional or misleading.

     (i) Costs of any notice required under this section shall be borne by the applicant.

     (j) In granting a zoning ordinance amendment, notwithstanding the provisions of § 45-24-

37, the town or city council may limit the change to one of the permitted uses in the zone to

which the subject land is rezoned and impose limitations, conditions, and restrictions, including,

without limitation: (1) Requiring the petitioner to obtain a permit or approval from any and all

state or local governmental agencies or instrumentalities having jurisdiction over the land and use

that are the subject of the zoning change; (2) Those relating to the effectiveness or continued

effectiveness of the zoning change; and/or (3) Those relating to the use of the land as it deems

necessary. The responsible town or city official shall cause the limitations and conditions so

imposed to be clearly noted on the zoning map and recorded in the land evidence records;

provided, that in the case of a conditional zone change, the limitations, restrictions, and

conditions shall not be noted on the zoning map until the zone change has become effective. If the

permitted use for which the land has been rezoned is abandoned or if the land is not used for the

requested purpose for a period of two (2) years or more after the zone change becomes effective,

the town or city council may, after a public hearing, change the land to its original zoning use

before the petition was filed. If any limitation, condition, or restriction in an ordinance is held to

be invalid by a court in any action, that holding shall not cause the remainder of the ordinance to

be invalid.

     (k) The above requirements are to be construed as minimum requirements.

     45-24-56. Administration -- Zoning board of review -- Establishment and

procedures.

     (a) A zoning ordinance adopted pursuant to this chapter shall provide for the creation of a

zoning board of review and for the appointment of members, including alternate members, and

for the organization of the board, as specified in the zoning ordinance, or, in cities and towns with

home rule or legislative charters, as provided in the charter. A zoning ordinance may provide for

remuneration to the zoning board of review members and for reimbursement for expenses

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incurred in the performance of official duties. A zoning board of review may engage legal,

technical, or clerical assistance to aid in the discharge of its duties. The board shall establish

written rules of procedure, a mailing address to which appeals and correspondence to the zoning

board of review are sent, and an office where records and decisions are filed.

     (b) The zoning board of review consists of five (5) members, each to hold office for the

term of five (5) years; provided, that the original appointments are made for terms of one, two (2),

three (3), four (4), and five (5) years, respectively. The zoning board of review also includes two

(2) alternates to be designated as the first and second alternate members, their terms to be set by

the ordinance, but not to exceed five (5) years. These alternate members shall sit and may actively

participate in hearings. The first alternate shall vote if a member of the board is unable to serve at

a hearing and the second shall vote if two (2) members of the board are unable to serve at a

hearing. In the absence of the first alternate member, the second alternate member shall serve in

the position of the first alternate. A quorum shall consist of a majority of the number of members

authorized by this section. Three (3) members to include alternate members shall form a duly

constituted quorum. No member or alternate may vote on any matter before the board unless they

have attended all hearings concerning that matter. Where not provided for in the city or town

charter, the zoning ordinance shall specify procedures for filling vacancies in unexpired terms of

zoning board members, and for removal of members for due cause.

     (c) Notwithstanding the provisions of subsection (b), the zoning board of review of the

town of Jamestown consists of five (5) members, each to hold office for the term of five (5)

years; provided, that the original appointments are made for terms of one, two (2), three (3), four

(4) and five (5) years respectively. The zoning board of review of the town of Jamestown also

includes three (3) alternates to be designated as the first, second, and third alternate members,

their terms to be set by the ordinance, but not to exceed five (5) years. These alternate members

shall sit and may actively participate in hearings. The first alternate shall vote if a member of the

board is unable to serve at a hearing; the second shall vote if two (2) members of the board are

unable to serve at a hearing; and the third shall vote if three (3) members of the board are unable

to serve at a hearing. In the absence of the first alternate member, the second alternate member

shall serve in the position of the first alternate. No member or alternate may vote on any matter

before the board unless they have attended all hearings concerning that matter. Where not

provided for in the town charter, the zoning ordinance shall specify procedures for filling

vacancies in unexpired terms of zoning board members, and for removal of members for due

cause.

     (d) Members of zoning boards of review serving on the effective date of adoption of a

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zoning ordinance under this chapter are exempt from the provisions of this chapter respecting

terms of originally appointed members until the expiration of their current terms.

     (e) The chairperson, or in his or her absence, the acting chairperson, may administer

oaths and compel the attendance of witnesses by the issuance of subpoenas.

     (f) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

review for the town of Little Compton shall consist of five (5) members, each to hold office for

the term of five (5) years. The zoning board of review for the town of Little Compton shall also

include three (3) alternates to be designated as the first, second and third alternate members, their

terms to be set by the ordinance, but not to exceed five (5) years. These alternate members shall

sit and may actively participate in the hearings. The first alternate shall vote if a member of the

board is unable to serve at a hearing; the second shall vote if two (2) members of the board are

unable to serve at a hearing; and the third shall vote if three (3) members of the board are unable

to serve at a hearing. In the absence of the first alternate member, the second alternate member

shall serve in the position of the first alternate. No member or alternate may vote on any matter

before the board unless they have attended all hearings concerning that matter. Where not

provided for in the town charter, the zoning ordinance shall specify procedures for filling

vacancies in unexpired terms of zoning board members, and for removal of members for due

cause.

     (g) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

review for the town of Charlestown shall consist of five (5) members, each to hold office for the

term of five (5) years. The zoning board of review for the town of Charlestown shall also include

three (3) alternates to be designated as the first, second, and third alternate members, their terms

to be set by the ordinance, but not to exceed five (5) years. These alternate members shall sit and

may actively participate in the hearings. The first alternate shall vote if a member of the board is

unable to serve at a hearing; the second shall vote if two (2) members of the board are unable to

serve at a hearing; and the third shall vote if three (3) members of the board are unable to serve at

a hearing. In the absence of the first alternate member, the second alternate member shall serve in

the position of the first alternate. No member or alternate may vote on any matter before the

board unless they have attended all hearings concerning that matter. Where not provided for in

the town charter, the zoning ordinance shall specify procedures for filling vacancies in unexpired

terms of zoning board members, and for removal of members for due cause.

     (h) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

review for the town of Scituate shall consist of five (5) members, each to hold office for the term

of five (5) years. The zoning board of review for the town of Scituate shall also include three (3)

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alternates to be designated as the first, second and third alternate members, their terms to be set

by the ordinance, but not to exceed five (5) years. These alternate members shall sit and may

actively participate in the hearings. The first alternate shall vote if a member of the board is

unable to serve at a hearing; the second shall vote if two (2) members of the board are unable to

serve at a hearing; and the third shall vote if three (3) members of the board are unable to serve at

a hearing. In the absence of the first alternate member, the second alternate member shall serve in

the position of the first alternate. No member or alternate may vote on any matter before the

board unless they have attended all hearings concerning that matter. Where not provided for in

the town charter, the zoning ordinance shall specify procedures for filling vacancies in unexpired

terms of zoning board members, and for removal of members for due cause.

     (i) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

review of the town of Middletown shall consist of five (5) members, each to hold office for a

term of five (5) years. The zoning board of review of the town of Middletown shall also include

three (3) alternates to be designated as the first (1st), second (2nd) and third (3rd) alternate

members, their terms to be set by ordinance but not to exceed (5) years. These alternate members

shall sit and may actively participate in the hearing. The first alternate shall vote if a member of

the board is unable to serve at the hearing; the second alternate shall vote if two (2) members of

the board are unable to serve at the hearing; and the third alternate shall vote if three (3) members

of the board are unable to serve at the hearing. In the absence of the first alternate member, the

second alternate member shall serve in the position of the first alternate. No member or alternate

may vote on any matter before the board unless they have attended all hearings concerning that

matter. Where not provided for in the town charter the zoning ordinance shall specify procedures

for filling vacancies in unexpired terms of zoning board members and for removal of members

for due cause.

     (j) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

review of the city of Cranston shall consist of five (5) members, each to hold office for a term of

five (5) years. The zoning board of review of the city of Cranston shall also include four (4)

alternates to be designated as the first (1st), second (2nd), third (3rd), and fourth (4th), alternate

members, to be appointed for a term of one year. These alternate members shall sit and may

actively participate in all zoning hearings. The first alternate shall vote if a member of the board

is unable to serve at the hearing; the second alternate shall vote if two (2) members of the board

are unable to serve at the hearing; the third alternate shall vote if three (3) members of the board

are unable to serve at the hearing; and the fourth alternate shall vote if four (4) members of the

board are unable to serve at the hearing. In the absence of the first alternate member, the second

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alternate member shall serve in the position of the first alternate. No member or alternate may

vote on any matter before the board unless they have attended all hearings concerning that matter.

Where not provided for in the city charter, the zoning ordinance shall specify procedures for

filling vacancies during the unexpired terms of zoning board members and for removal of

members for due cause.

     45-24-57. Administration -- Powers and duties of zoning board of review.

     A zoning ordinance adopted pursuant to this chapter shall provide that the zoning board

of review shall:

     (1) Have the following powers and duties:

     (i) To hear and decide appeals within sixty-five (65) days of the date of the filing of the

appeal where it is alleged there is an error in any order, requirement, decision, or determination

made by an administrative officer or agency in the enforcement or interpretation of this chapter,

or of any ordinance adopted pursuant hereto;

     (ii) To hear and decide appeals from a party aggrieved by a decision of an historic district

commission, pursuant to §§ 45-24.1-7.1 and 45-24.1-7.2;

     (iii) To hear and decide appeals where the zoning board of review is appointed as the

board of appeals for airport zoning regulations, pursuant to § 1-3-19;

     (iv) To authorize, upon application, in specific cases of hardship, variances in the

application of the terms of the zoning ordinance, pursuant to § 45-24-41;

     (v) To authorize, upon application, in specific cases, special-use permits, pursuant to §

45-24-42, where the zoning board of review is designated as a permit authority for special-use

permits;

     (vi) To refer matters to the planning board or commission, or to other boards or agencies

of the city or town as the zoning board of review may deem appropriate, for findings and

recommendations;

     (vii) To provide for the issuance of conditional zoning approvals where a proposed

application would otherwise be approved except that one or more state or federal agency

approvals that are necessary are pending. A conditional zoning approval shall be revoked in the

instance where any necessary state or federal agency approvals are not received within a specified

time period; and

     (viii) To hear and decide other matters, according to the terms of the ordinance or other

statutes, and upon which the board may be authorized to pass under the ordinance or other

statutes; and

     (2) Be required to vote as follows:

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     (i) Five (5) Three (3) active members to include alternative members are necessary to

conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or

herself, shall not sit as an active member, and shall take no part in the conduct of the hearing.

Only A maximum five (5) active members to include alternative members are entitled to vote on

any issue;

     (ii) The concurring vote of three (3) of the five (5) members of the zoning board of

review sitting at a hearing are necessary to reverse any order, requirement, decision, or

determination of any zoning administrative officer from whom an appeal was taken; and

     (iii) The concurring vote of four (4) of the five (5) a majority of members of the zoning

board of review sitting at a hearing is required to decide in favor of an applicant on any matter

within the discretion of the board upon which it is required to pass under the ordinance, including

variances and special-use permits.

     SECTION 3. This act shall take effect on January 1, 2020 and shall be prospective only

and not applicable to any current zoning or planning hearing or appeal.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES -- LOCAL PLANNING BOARD OR COMMISSION--

ZONING ORDINANCES

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     This act would provide that notices of amendments to zoning ordinances or notice

required from planning boards or commissions be sent first class mail. A quorum of the zoning

board of review shall be a majority of the authorized members to vote, including alternates.

     This act would take effect on January 1, 2020 and would be prospective only and not

applicable to any current zoning or planning hearing or appeal.

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