Town of East Greenwich, RI Administration and Procedures of Zoning Board of Review

There is hereby created a Board of Review, which shall be appointed for a term and shall be subject to the conditions set forth in Article XX of the East Greenwich Home Rule Charter. The word "Board" when used in this section shall mean the Zoning Board of Review.

The Board shall consist of five members appointed by the Town Council, each to hold office for the term of five years. Each year the term of one member of the Board shall come up for renewal. The Town Council shall also appoint two alternates to the Board, to be designated as the first and second alternate members, each for terms of one year. Where a vacancy occurs in an unexpired term of a Board member, the Town Council shall appoint someone to complete the term of membership.

The Board as constituted at the time of the adoption of this chapter shall be continued, and the original appointments specified in Subsection A(1) of this section shall be deemed to have been made.

The Town Council, following a public hearing on the matter, may remove a Board member if that member misses three consecutive meetings or 25% of the meetings during the course of one year.

Organization procedures.

The Board shall meet once monthly if there are pending applications. Additionally, special meetings or continuances may be convened as necessary. The Chair or, in his absence the Acting Chair may administer oaths and compel the attendance of witnesses by the issuance of subpoenas.

The alternate members of the Board 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 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 such matter.

§ 260-85 Powers and duties.

The Board shall have the following powers and duties:

To hear and decide appeals within 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.[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. IV).

To hear and decide appeals from a party aggrieved by a decision of the Historic District Commission, pursuant to the Historical Zoning Enabling Legislation.[2]

[2]

Editor's Note: See R.I.G.L. § 45-24.1-1 et seq.

To authorize, upon application, in specific cases of hardship, variances in the application of the terms of this chapter.

To authorize, upon application, in specific cases, special use permits.

To refer matters to the Planning Board or to other boards or agencies of the Town as the Board may deem appropriate for findings and recommendations.

To authorize, upon application, conditional zoning approvals where a proposed application would otherwise be approved, except that one or more state or federal agency approvals which 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.

To hear and decide such other matters according to the terms of the ordinance or other statutes and upon which such Board may be authorized to pass under such ordinance or other statutes.

To determine whether new evidence/information previously unavailable would warrant the reconsideration of a previous decision of the Board.

To amend and/or reconsider a previous decision of the Board, including reconsiderations of parts of a decision.

To authorize by special use permit relief from the dimensional and intensity regulations of this chapter for any use the Board authorizes by special use permit. See Article III, § 260-8E.

§ 260-86 Attendance and voting requirements.

Five active members shall be necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse him/herself and shall not sit as an active member nor take part in the conduct of the hearing. Only five active members shall be entitled to vote on any issue. Alternates not considered as active members for the purpose of a hearing may participate in the conduct of the hearing but not in the vote.

The concurring vote of three of the five members of the Board sitting at the hearing shall be necessary to reverse any order, requirement, decision or determination of any zoning administrative officer or agency from whom an appeal was taken.

The concurring vote of four of the five members of the Board sitting at a hearing shall be required to decide in favor of an applicant on applications for variances and special use permits.

§ 260-87 Board decisions and records.

Following a public hearing on an application for appeal, variance or special use permit, the Board shall render a decision within 15 days. The Board shall include in its decision all findings of fact and conditions, showing the vote of each member participating thereon, and the absence of a member or his/her failure to vote.[1]

[1]

Editor's Note: Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. IV).

Written decisions shall be recorded in the office of the Town Clerk and filed in the Planning Department within 30 working days from the date when the decision was rendered and shall be a public record. The decision shall be posted in a location visible to the public in the Town Hall for a period of 20 days following the recording of the decision.

The Zoning Board of Review shall keep written minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and shall keep records of its examinations, findings of fact, and other official actions, all of which shall be recorded and filed in the Planning Department in an expeditious manner upon completion of the proceeding.

For any proceeding in which the right of appeal lies to the Superior or Supreme Court, the Zoning Board of Review shall have the minutes taken either by a competent stenographer or recorded by a sound-recording device. The cost of such stenographic services shall be borne by the applicant.

Any decision by the Zoning Board of Review, including any special conditions attached thereto, shall be distributed to the applicant, to the Zoning Enforcement Officer, Tax Assessor, the Planning Department and to the Associate Director of the Division of Planning of the Rhode Island Department of Administration. Any decision evidencing the granting of a variance or special use shall also be recorded in the land evidence records of the Town.

Reconsiderations of previous decisions shall be provided the same time considerations regarding decisions, recording of decisions, minutes and rights of appeal, as other applicable time periods.

§ 260-88 Special conditions.

In granting a variance or in making any determination upon which it is required to pass after public hearing under such zoning ordinance, the Board may apply such special conditions that may, in its collective opinion, be required to promote the intent and purposes of the Comprehensive Community Plan and this chapter of the Town Code. Failure to abide by any special conditions attached to a grant of relief shall constitute a zoning violation. Such special conditions shall be based on competent credible evidence on the record, be incorporated into the decision, and may include, but are not limited to, provisions as follows:

Minimizing adverse impact of the development upon other land, including the type, intensity, design and performance of activities;

Controlling the sequence of development, including when it must be commenced and completed;

Controlling the duration of use or development and the time within which any temporary structure must be removed;

Assuring satisfactory installation and maintenance of required public improvements;

Designating the exact location and nature of development; and

Establishing detailed records by submission of drawings, maps, plats or specifications.

§ 260-89 Variance and special use permit application procedure and fees.

[Amended 5-22-2006 by Ord. No. 767]

Submission of applications. All applications for variances and special use permits may be made by any person, group, agency or corporation by filing a completed application with the Planning Department. An appeal to the order, requirement, decision or determination made by an administrative officer, agency or the Historic District Commission may be made by any aggrieved party within 20 days of administrative or Historic District Commission action. Completed applications shall be submitted to the Planning Department prior to or on the 15th day of the month in order to be heard on the following month's agenda. Should the 15th fall on a day when the office is closed, the deadline shall be at the end of the next regular business day.

Complete applications for variances and special use permits shall include, but not be limited to, the following information:

Completed application form;

Plat plan(s) drawn to scale showing the location of all lot and street lines, existing and proposed structures, utilities, access/egress, parking, on-site traffic flow, landscaping, drainage systems, provisions for off-street (un)loading facilities, dumpsters, assessment of noise/glare/odor effects on adjacent parcels, signs, lighting facilities and other site features;

Plat map showing lot and street lines and approximate location of structures on parcels immediately adjacent to the subject site;

Elevation drawings, where relevant;

Application fees; and

(f)

A map displaying the uses of all properties within a five-hundred-foot radius of the subject property is also required for use variances and special use permit applications.

Applications for an appeal from an administrator or agency shall include, but not be limited to, the following information:

A written description of the issue in question;

A scaled graphic representation of the issue, where applicable;

Copies of any and all relevant correspondence and paperwork, including copies of completed application forms;

A written discussion of the grounds on which the appeal is being sought; and

The required application fees.

Applications shall be accompanied by fees as follows:

[Added 5-22-2006 by Ord. No. 767]

Single-family and duplex residential, including in-law apartments and residential accessory uses: $150.

Multifamily residential, commercial and industrial uses: $350.

Signs: $250.

Appeals of single-family and duplex residential: $200.

Appeals of multifamily, major and minor development, and commercial and industrial: $500.

(f)

Telecommunications: $500.

(g)

Historic District: $50.

Applicants are responsible for the costs of advertising and abutter notification. A nonrefundable deposit of $50 shall be required to cover the expense of stenographic services.

[Added 5-22-2006 by Ord. No. 767; amended 12-17-2007 by Ord. No. 786.5]

(5)

To protect the public health, safety and welfare, the Zoning Board of Review may require peer review of expert witness reports and testimony on behalf of applicants. A list of peers and their fees shall be maintained by the Town for selection by the Town, and the cost of peer review shall be borne by the applicant. All costs associated with peer review shall be paid in full before Zoning Board of Review approvals are recorded in the Land Evidence Records. The Town reserves the right to place a lien on the subject property for any fees not paid in full.

[Added 5-22-2006 by Ord. No. 767]

Accepting and processing applications.

Variances and special use permits. Upon receipt and acceptance of a completed application, the Planning Department shall schedule the matter before all applicable advisory boards (including the Planning Board, the Historic District Commission and the Conservation Commission) as well as the Zoning Board of Review. The Planning Board shall only review those matters where it has approval authority under the Rhode Island Development Review Act (R.I.G.L. § 45-23-25 et seq.) or when the Zoning Board specifically requests an advisory opinion. All advisory boards as well as Planning Department staff shall report their findings and recommendations (including a general statement of consistency of the request with the Comprehensive Community Plan) in writing to the Zoning Board of Review within 30 days of receipt of the application.

Appeals:

The Planning Department shall schedule the completed appeal application for the next available Zoning Board public hearing. Notice of the appeal shall be placed in the newspaper as provided for in Subsection C of this section. Additionally, notice shall likewise be provided to the individual or agency from which the appeal is sought.

The filing of an appeal shall stay all proceedings in furtherance of the action appealed from unless the Building Official certifies to the Board (after an appeal has been duly filed) that, by reason of facts stated in the decision that is being appealed, a stay would cause imminent peril to life or property based on the Rhode Island State Building Code. In such a case, the proceedings shall only be stayed by a restraining order which may be granted through a court of competent jurisdiction.

Notification of public hearing.

Prior to holding its public hearing, the Board shall require public notice at least 14 days prior to the date of the hearing in a newspaper of general circulation in the Town. Notice of hearing shall be sent by certified mail, return receipt requested, by the applicant to the following:

All owners of real property whose property is located in or within not less than 200 feet of the perimeter of the parcel(s) covered in the application, whether within the Town or within an adjacent municipality;

The Associate Director of the Division of Planning of the Rhode Island Department of Administration; and

The city or town council of any municipality which is located in or within 200 feet of the boundary of the area covered in the application and/or 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 2,000 feet of any real property that is the subject of the application, regardless of municipal boundaries.

Said notice shall include the street address of the subject property and a reference to the relief or appeal sought. The Chair may order that the notice be posted at the location in question. Such notice shall not constitute required notice of public hearing. The responsibility and cost for all abutter notification and legal notice in the newspaper of general circulation shall be borne by the applicant.

§ 260-90 Review of appeals.

[Amended 9-22-2014 by Ord. No. 838]

Appeals to Zoning Board of Review. An appeal to the Zoning Board of Review from a decision, order, requirement or determination made by an administrative officer or agency such as the Historic District Commission or Planning Board may be taken by an aggrieved party. The appeal shall be taken within 30 days of the recording of the decision by the officer or agency by filing with the officer or agency from whom the appeal is taken and with the Zoning Board of Review a notice of appeal specifying the grounds of the appeal. Said appeal shall be accompanied by a radius map showing all real property within 200 feet of the subject property and a list of all real property owners therein for purposes of notification consistent with § 260-89C of this chapter. The officer or agency from whom the appeal is taken shall promptly transmit to the Zoning Board of Review all the papers constituting the record upon which the action appealed from was taken. Notice of the appeal shall also be transmitted to the officer, agency or board from whom the appeal is taken.

Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action being appealed.

Public hearing by Zoning Board of Review. The Zoning Board of Review shall hear the appeal within 45 days of the receipt of the appeal. Public notice is to be provided, at least 14 days prior to the date of the hearing in a newspaper of general circulation. Notice of the hearing, which shall include the street address of the subject property, shall be sent by first-class mail, postage prepaid, to the appellant and to those requiring notice under § 260-89C of this chapter. The cost of any notice required for the hearing shall be borne by the appellant.

Procedure for zoning hearing. The hearing of any appeal shall be at a separate meeting, distinct from the hearing of any variance or special use permit, although such hearings may be held on the same day or night. At the hearing, any party may appear in person or by agent or attorney. The officer or a designated individual of the agency, commission or board from whom the appeal is taken shall appear before the Zoning Board at the hearing to represent such agency, commission or board. The Board shall render a decision within 10 days of the close of the public hearing.

Decisions; standards of review.

Review of Planning Board or Historic District Commission decisions.

In instances of the Board of Appeal's review of a Planning Board or Historic District Commission decision, the Board of Appeal shall not substitute its own judgment for that of the Planning Board or Historic District Commission but must consider the issue upon the findings and record of the Planning Board or Historic District Commission. The Board of Appeal shall not reverse a decision except on a finding of prejudicial procedural error, clear error, or lack of support by the weight of the evidence in the record.

The concurring vote of three of the five members of the Board of Appeal sitting at a hearing is necessary to reverse any decision of the Planning Board or Historic District Commission.

In the instance where the Board of Appeal overturns a decision of the Planning Board or Historic District Commission, the proposed project application is remanded to the Planning Board or Historic District Commission, at the stage of processing from which the appeal was taken, for further proceedings and/or for the final disposition, which shall be consistent with the Board of Appeal's decision.

The Board of Appeal shall keep complete records of all proceedings, including a record of all votes taken, and shall put all decisions on appeals in writing. The Board of Appeal shall include in the written record and the reasons for each decision.

In exercising its powers with respect to all other appeals, the Zoning Board of Appeal may reverse or affirm wholly or partly and may modify the order, requirement, decision or determination appealed from and may make any orders, requirements, decisions or determinations that ought to be made, and to that end has the powers of the officer from whom the appeal was taken.

§ 260-91 Standards of review.

In reviewing an application for a variance (either use or dimensional) the Board shall require that evidence satisfying standards in this section be entered into the record of the proceedings. Such evidence shall satisfy the following standards:

That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area and not due to the physical or economic disability of the applicant.

That said, 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.

That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of this chapter or the Comprehensive Community Plan upon which said chapter is based.

That the relief to be granted is the least relief necessary.

In addition to those standards outlined above in Subsection A, an applicant for a use variance must additionally demonstrate to the satisfaction of the Board the following: That the subject land or structure cannot yield any beneficial use if it is required to conform to the provisions of this chapter. Nonconforming use of neighboring land or structures in the same district and permitted uses of lands or structures in an adjacent district shall not be considered in granting a use variance.

In addition to those standards outlined above in Subsection A, an applicant for a dimensional variance must demonstrate, to the satisfaction of the Board, the following: The hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount 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. The Zoning Board of Review has the power to grant dimensional variances where the use is permitted by special use permit as provided for in the special use permit sections of this chapter.

[Amended 5-22-2006 by Ord. No. 767; 3-14-2016 by Ord. No. 849]

In reviewing an application for a special use permit, the Board shall require that evidence satisfying standards in this section be entered into the record of the proceedings. Such evidence shall satisfy the following standards:

That the public convenience and welfare will be substantially served.

That the proposed development will be in harmony with the general purpose and intent of this chapter and the Comprehensive Community Plan.

That the proposed development will not result in or create conditions that will be inimical to the public health, safety, morals and general welfare of the community.

That the granting of the special use permit will not substantially or permanently injure the appropriate use of the property in the surrounding area or district.

Bed-and-breakfast homes.

In reviewing an application for a special use permit for a bed-and-breakfast home, the Board shall require that evidence satisfying standards in this section be entered into the record of the proceedings. For bed-and-breakfast homes, the applicant must, in addition to those standards outlined in Subsection D of this section, demonstrate the following:

That the bed-and-breakfast home and use shall be an accessory use to a single-family house and that it shall be subordinate to the residential use of the premises. The bed-and-breakfast home shall be operated by the homeowner.

That each guest room of the bed-and-breakfast home is in compliance with the Rhode Island State Housing Maintenance and Occupancy Code.[1]

[1]

Editor's Note: See R.I.G.L. § 45-24.3-1 et seq.

That there will be no change in the outside appearance of the building and/or premises nor any visible or audible evidence detectable from outside the lot as to the presence of a bed-and-breakfast home except for signage as permitted under Article VII.

That there shall be no meals served to the general public. Breakfast may be served to guests of the bed-and-breakfast home.

That minimum off-street parking requirements shall be provided such that one parking space is provided per guest unit or guest room. Stacked parking (where one car parks behind another, essentially blocking it in) is acceptable. All parking areas shall be paved or graveled. Parking areas for bed-and-breakfast homes with only two guest rooms or less may be grassed. Where parking spaces are not provided on site, the owner shall produce a lease, for a minimum of one year, for use of a private parking lot. During review of annual licensing renewal, the owner shall be required to submit proof of the continuing availability of minimum parking requirements prior to the license being renewed.

(f)

That where deemed necessary to preserve and protect the residential nature of the neighborhood, the Board may require a landscape buffer, fence or other screening between the bed-and-breakfast home's parking area and the neighbors' properties or street.

(g)

That the bed-and-breakfast home shall be in compliance with all applicable provisions of the Rhode Island State Fire Safety Code, the Rhode Island State Building Code,[2] regulations of the Department of Environmental Management, Department of Health and any other relative code or agency.

[2]

Editor's Note: See R.I.G.L. §§ 23-28.1-1 et seq. (Fire Safety Code) and 23-27.3-100.1 et seq. (Building Code).

Additionally, licensing shall be required for all bed-and-breakfasts per the requirements of § 93-1, Schedule of fees and charges, in the East Greenwich Code.

Special use standards for compassion centers in the CH (Commercial Highway) and M/LIO (Light Industry/Office) Zones. Compassion centers shall be permitted as a special use permit use in the CH and M/LIO Zones, subject to all applicable provisions of the Zoning Ordinance, including Subsection D above, and all of the following additional requirements:

[Added 1-11-2016 by Ord. No. 846]

The application for a special use permit shall provide the legal name and address of the compassion center, a copy of the articles of incorporation, and the name, address and date of birth of each principal officer and board member of the compassion center.

The requested use at the proposed location will not adversely affect the use of any property used for school, public or private park, playground, play field, youth center, licensed day-care center, or any location where groups of minors regularly congregate.

The requested use at the proposed location will be sufficiently buffered in relation to any residential area in the immediate vicinity so as not to adversely affect said area.

The exterior appearance of the structure must be consistent with the exterior appearance of existing structures within the immediate neighborhood, so as to prevent blight or deterioration, or substantial diminishment or impairment of property values within the neighborhood.

(5)

The compassion center must not be located within:

One thousand feet from the nearest residential zoning district; or

One thousand feet from the nearest house of worship, school or public or private park, playground, play field, youth center, licensed day-care center, or any other location where groups of minors regularly congregate; or

Two thousand feet from any other compassion center.

(6)

The distances specified in the immediately preceding Subsection F(5) shall be measured by a straight line from the nearest boundary line of the premises on which the proposed compassion center use is to be located to the nearest boundary line of a residential district or to the nearest boundary line of any of the other designated uses set forth herein.

(7)

Hours of operation for the compassion center shall be limited to 8:00 a.m. to 8:00 p.m.

(8)

Lighting shall be required such that will illuminate the compassion center, its immediate surrounding areas, any accessory uses, including storage areas, the parking lot(s), its front facade, and any adjoining public sidewalk.

(9)

The proposed compassion center shall implement the appropriate security measures to deter and prevent the unauthorized entrance into areas containing marijuana and shall ensure that each location has an operational security/alarm system.

(10)

No compassion center shall be established prior to the submission and approval of a site plan by the Planning Department and the Zoning Enforcement Officer. The site plan shall depict all existing and proposed buildings, parking spaces, driveways, service areas and open uses. The site plan shall show distances between the proposed use and the boundary of the nearest residential zoning district and the property line of all other abutting uses as described within this section.

(11)

All compassion center uses shall fully comply with all licensing requirements of the Town of East Greenwich and the laws of the State of Rhode Island.

Residential cooperative cultivations shall be permitted by special use permit in residential zones, subject to all applicable provisions of the Zoning Ordinance, and subject also to the additional requirements of R.I.G.L. § 21-28.6-14, as set forth below:

[Added 1-11-2016 by Ord. No. 846]

A cardholder can only cooperatively cultivate on one location.

No single locations may have more than one cooperative cultivation. For the purposes of this section, "location" means one structural building, not units within a structural building.

The cooperative cultivation shall not be visible from the street or other public areas.