Cumberland City Zoning Code
ARTICLE 17
Administration and Enforcement
§ 17-1 Enforcement duties.
[Ord. No. 08-31, 10-7-2009]
(a)
Building Official. It shall be the duty of the Building Official to interpret and enforce the provisions of this appendix in the manner and form and with the powers provided in the laws of the state and in the charter and ordinances of the Town. The Building Official shall refer all applications for variances, special use permits and other appeals to the Zoning Board of Review. The Building Official shall make a determination in writing, within 15 days, to any written complaint received, regarding a violation of this appendix. In order to provide guidance or clarification, the Building Official shall, upon written request, issue a zoning certificate or provide information to the requesting party within 15 days of the written request. Any determination of the Building Official may be appealed to the Zoning Board of Review in accordance with § 17-11 of this article.
(b)
Minimum requirements. In interpretation and application, the provisions of this appendix shall be held to be the minimum requirements for the promotion of health, safety, morals, convenience or the general welfare.
§ 17-2 Building permit/certificate of occupancy.
[Ord. No. 08-31, 10-7-2009]
Before a building permit or certificate of occupancy is issued for the construction, reconstruction, alteration, repair, demolition, removal, or enlargement or occupancy of any building or structure or use of premises, a site plan an application (three copies) shall be submitted to the Building Official indicating the intended use and its conformity in all respects to the provisions of this appendix. An application for a building permit for an addition, erection or enlargement under the provisions of the Rhode Island Building Code shall be accompanied by a site plan, drawn to scale, showing the following:
(a)
Accurate dimensions of the lot;
(b)
Building site;
(c)
Location and size of existing buildings on the lot;
(d)
All proposed construction;
(e)
All front, side and rear yard dimensions;
(f)
Proposed parking areas; and
(g)
Such other information as may be necessary to enforce the provisions of this appendix.
A site plan shall not be required with an application for a permit involving the alteration of an existing building(s), where the use and exterior dimensions of the buildings are not changed or enlarged in any manner. |
§ 17-3 Certificate of occupancy.
[Ord. No. 08-31, 10-7-2009]
A certificate of occupancy as required by the Rhode Island Building Code shall be required for any of the following:
(a)
Occupancy and use of a building hereafter erected or enlarged;
(b)
Change in use of an existing building to a different use;
(c)
Intensification of an existing use of either a building or land;
(d)
Occupancy and use of vacant land except for the raising of crops;
(e)
Change in the use of land to different use except for the raising of crops; or
(f)
Any change in use of a nonconforming use.
The occupancy, use or change of use shall not take place until a certificate of occupancy has been issued by the Building Official in accordance with the requirements for the issuance of a certificate of occupancy as stated in the Rhode Island Building Code. |
In interpreting and applying the provisions of this appendix, they shall be held to be the minimum requirements for the promotion of health, safety, morals, convenience or the general welfare. |
§ 17-4 Conflicts of law.
[Ord. No. 08-31, 10-7-2009]
All departments, officials and public employees of the Town which are vested with the duty or authority to issue permits or licenses shall conform to the provisions of this appendix and shall issue no permit or license for any use, building or purpose if the same would be in conflict with the provisions of this appendix. Any permit or license, issued in conflict with the provisions of this appendix, shall be null and void.
§ 17-5 Penalties and enforcement.
[Ord. No. 08-31, 10-7-2009]
Any person or corporation, whether as principal, agent, employee or otherwise, who violates or is the owner of property in violation of any of the provisions of this appendix shall be fined up to $500 for each offense, such fine to inure to the Town. Each day of the existence of any violation shall be deemed a separate offense. The erection, construction, enlargement, intensification, conversion, moving or maintenance of any building or structure and the use of any land or building or structure which is continued, operated or maintained, contrary to any of the provisions of this appendix is hereby declared to be a violation of this appendix and unlawful. The Building Official shall be empowered to levy such fines, with appeal thereupon to the district court. The Town Solicitor shall also be empowered to institute injunction, abatement or any other appropriate action in any appropriate court to prevent, enjoin, abate or remove such violation, or compel compliance with the provisions of this appendix. The Town Solicitor may consolidate an action for injunctive relief and/or fines under this appendix in the Superior Court for Providence County. The remedies provided for herein shall be cumulative and not exclusive and shall be in addition to any other remedies provided by law.
§ 17-6 Establishment of the Zoning Board of Review.
[Ord. No. 08-31, 10-7-2009]
A Zoning Board of Review, herein called the "board," is hereby created. Board members may be remunerated in the performance of official duties, at an amount to be established by the Town Council. The board, with the approval of the Town Council may engage technical assistance to aid in the discharge of its duties. The Building Official shall serve as staff to the board. The Town Solicitor or assistant Town Solicitor shall serve as legal counsel to the board. The board shall establish written rules of procedures within six months of the adoption of this appendix. Appeals and correspondence to the board shall be sent to the board in care of the Building Official. The Building Official shall file all records and decisions of the board.
§ 17-7 Membership and voting requirements of the Board.
[Ord. No. 08-31, 10-7-2009]
(a)
Membership. The Zoning Board of Review shall consist of five members who are residents of Cumberland, appointed by the Town Council, each to hold office for the term of five years; provided, however, that the original appointments shall be made for terms of one, two, three, four, and five years respectively. The board shall also include two alternates, to be appointed by the Town Council for terms of one year.
(b)
Vacancies. Vacancies in unexpired terms of board members shall be filled by the Town Council no more than 90 days following the vacancy. Members may be removed by the Town Council for due cause and for not attending three consecutive meetings.
(c)
Chair, vice-chair and secretary. The board shall, at its first meeting following the adoption of this appendix, and in January of each year thereafter, elect a chairperson, vice-chairperson and secretary from its membership. The chairperson, or in his/her absence, the vice-chairperson, may administer oaths and compel the attendance of witnesses by the issuance of subpoenas.
(d)
Participation and voting. The alternate members shall sit and may actively participate in hearings. An alternate, as chosen by the chair of the board, shall vote when a member of the board are unable to serve at a hearing. No member or alternate may vote on any matter before the board unless they have attended all hearings concerning such matter. No member or alternate may participate in any way whatsoever on any matter for which they would have a conflict of interest as defined by the Rhode Island Law and the Rhode Island Ethics Commission.
§ 17-8 Powers and duties of the Board.
[Ord. No. 08-31, 10-7-2009]
The board shall have the following powers and duties:
(a)
To hear and decide appeals in a timely fashion where it is alleged there is error in any order, requirement, decision, or determination made by an administrative officer or agency in the enforcement or interpretation of this appendix.
(b)
To hear and decide appeals from a party aggrieved by a decision of the historic district commission (HDC), pursuant to Article 8.
(c)
To authorize upon application, in specific cases of hardship, variances in the application of the terms of this appendix. To hear and decide applications for variances, pursuant to Article 18.
(d)
To authorize upon application, where specified in this appendix, special use permits. To hear and decide applications for special use permits, pursuant to Article 18.
(e)
To refer matters to the Planning Board, planning department, or to other boards or agencies of the Town as the board may deem appropriate, for findings and recommendations.
(f)
To provide for issuance of 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, upon motion of the board, after a public hearing with due notice, in the instance where any necessary state or federal agency approvals are not received within a specified time period.
(g)
To hear and decide such other matters, according to the terms of this appendix or other statutes, and upon which the board may be authorized to pass under this appendix or other statutes.
§ 17-9 Voting decisions of the Board.
[Ord. No. 08-31, 10-7-2009]
In rendering a decision, the board shall be required to vote as follows:
(a)
Five active members shall be necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself/herself, and shall not sit as an active member and shall take no part in the conduct of the hearing. Only five active members shall be entitled to vote on any issue.
(b)
The concurring vote of three of the five members of the board sitting at a hearing shall be necessary to reverse any order, requirement, decision or determination of the Building Official, Planning Board, HDC or any zoning administrative other officer or agency from whom an appeal was taken.
(c)
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 any matter within the discretion of the board upon which it is required to pass under this appendix, including variances and special use permits.
§ 17-10 Application procedures.
[Ord. No. 08-31, 10-7-2009]
Application procedures and forms for the filing of appeals, request for variances, special use permits, development review, site plan review and such other applications as may be specified in this appendix, shall be prepared by the Building Official and published made available to all applicants.
(a)
Fees. Reasonable fees may be required, in an amount to be established by the Town Council, to be paid by the appellant or applicant for the adequate review and hearing of applications, issuance of zoning certificates and the recording of the decisions thereon. In addition, the board may require the services of outside professional experts to assist in the review of an application, the cost of which shall be borne by the applicant on an actual fee basis.
(b)
Decisions and records of the Zoning Board of Review. Following a public hearing, the board shall render a decision within a reasonable period of time. 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 or her failure to vote. Decisions shall be recorded and filed in the office of the Building Official, as well in the land evidence records referencing the property affected by such decision. The board 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 office of the Building Official 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 board shall have the minutes taken either by a competent stenographer or recorded by a sound-recording device.
Any decision by the board, including any special conditions attached thereto, shall be mailed to the applicant, to the Planning Board, 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 permit shall also be recorded in the land evidence records of the Town.
§ 17-11 Appeals to the Zoning Board.
[Ord. No. 08-31, 10-7-2009]
(a)
Procedure. An appeal to the board from a decision of the Building Official, any other zoning enforcement officer or agency or of the HDC pursuant to Article 8, may be taken by an aggrieved party. Such appeal shall be taken within 30 days of the date of the recording of the decision of the officer or agency, or within 30 days of the time when the aggrieved party knew or should have known of the action or decision of such officer or agency. The appeal shall be commenced by filing an application with the board, with a copy to the officer or agency from whom the appeal is taken, specifying the ground thereof. The officer or agency from whom the appeal is taken shall forthwith transmit to the board all papers, including any transcript or audiotapes, constituting the record upon which the action appealed from was taken. Notice of the appeal shall also be transmitted to the Planning Board.
(b)
Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board, after the appeal shall have been duly filed, that by reason of facts stated in the certificate, a stay would in the officer's opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by a court of competent jurisdiction on application thereof and upon notice to the officer from whom the appeal is taken on due cause shown.
(c)
Public hearing. The board shall fix a reasonable time for the hearing of the appeal, give public notice thereof in the same manner as set forth in subsection 18-1(c) of this appendix, as well as due notice to the parties of interest, and shall render a decision within a reasonable period of time following the hearing. The hearing of any appeals shall be at a separate meeting from the hearing of any variance or special use permit applications (see Article 18), 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 by 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 of Review at the hearing to represent such agency, commission or board. Other members of the agency, commission or board may appear and be heard, but shall not represent the agency, commission or board. The cost of any notice required for the hearing shall be borne by the appellant.
(d)
Decision and records of the board. In exercising its powers in ruling, the board may, in conformity with the provisions of this appendix, reverse or affirm wholly or partly and may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the officer or agency from whom the appeal was taken. The vote and recording of a decision of the board regarding an appeal shall conform to the provisions of subsections 17-9(b) and 17-10(b) of this article.
§ 17-12 Appeals to Superior Court.
[Ord. No. 08-31, 10-7-2009]
An aggrieved party may appeal a decision of the board to the superior court for Providence County by filing a complaint setting forth the reasons of appeal within 20 days after such decision has been filed and posted with the Town Clerk. 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 board shall file the original documents acted upon by it and constituting the record of the case appealed from, or certified copies thereof, together with such other facts as may be pertinent, with the clerk of the court within 30 days after being served with a copy of the complaint. When the complaint is filed by someone other than the original applicant or appellant, such original applicant or appellant and the members of the board shall be made parties to such proceedings. The appeal shall not stay proceedings upon the decision appealed from, but the court may, in its discretion, grant a stay on appropriate terms and make such other orders as it deems necessary for an equitable disposition of the appeal.
§ 17-13 Adoption and amendment and administration of Zoning Ordinance.
[Ord. No. 08-31, 10-7-2009]
(a)
Procedure. Other than for proposals originated by the Town Council, the Town Clerk shall be the officer to receive a proposal for adoption or amendment or repeal of a zoning ordinance or zoning map(s). Immediately upon receipt of such proposal, the Town Clerk shall refer such proposal to the Town Council and the Planning Board for study and recommendation. If the proposal originates with the Town Council, the Town Council shall refer such proposal to the Building Official and the Planning Board. The Planning Board shall report to the Town Council within 45 days after receipt of the proposal, giving its findings and recommendations. The Town Council shall hold a public hearing within 65 days of receipt of proposal, giving proper notice as prescribed in paragraph (c) below. The Town Council shall render a decision on any such proposal within 45 days after the date of completion of the public hearing. The provisions of this subsection pertaining to deadlines shall not be construed to apply to any extension consented to by the applicant.
(b)
Review by Planning Board. Among its findings and recommendations to regarding the proposed amendment or repeal of this appendix or zoning map, the Planning Board shall:
(1)
Include a statement on the general consistency of the proposal with the comprehensive plan, including the goals and policies statement, the implementation program, and all other applicable elements of the comprehensive plan; and
(c)
Hearing and notice requirements.
(1)
No zoning ordinance shall be adopted repealed, or amended until after a public hearing has been held upon the question before the Town Council. The Town Council shall first give notice of such public hearing by publication of notice in a newspaper of general circulation within the Town at least once each week for three consecutive weeks prior to the date of such 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 to the proposed ordinance. Written notice, which may be a copy of said newspaper notice, shall be mailed by registered or certified mail to the associate director of the Division of Planning of the Rhode Island Department of Administration, and, where applicable, to the parties specified in Subsections (2), (3), (4) and (5) of this section, at least two weeks prior to the hearing. Such 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:
a.
Specify the place of said hearing and the date and time of its commencement;
b.
Indicate that adoption or amendment or repeal of a zoning the ordinance is under consideration;
c.
Contain a statement of the proposed amendments to the ordinance that may be printed once in its entirety, or summarize or describe the matter under consideration;
d.
Advise those interested where and when a copy of the matter under consideration may be obtained or examined and copied; and
e.
State that the proposal shown thereon 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 such alteration or amendment must be presented for comment in the course of said hearing.
(2)
Where a proposed general amendment to an existing zoning the ordinance includes changes in an existing zoning map, public notice shall be given as required by Subsection (1) of this section.
(3)
Where a proposed amendment to an existing the ordinance includes a specific change in a zoning district map but does not affect districts generally, public notice shall be given as required in Subsection (1) of this section, with the additional requirements that:
a.
Notice shall include a map showing the existing and proposed boundaries, zoning district boundaries, and existing streets and roads and their names, and Town boundaries where appropriate; and
b.
Written notice of the date, time and place of the public hearing and the nature and purpose thereof shall be sent to all owners of real property whose property is located within 200 feet of the perimeter of the area proposed for change, whether within the Town of Cumberland or within an adjacent city or Town in which the property is located.
(4)
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:
a.
Which is located within 200 feet of the boundary of the area proposed for change; or
b.
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 a proposed zoning change, regardless of municipal boundaries.
(5)
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 and/or surface watershed that is used, or is suitable for use, as a public water source and that is within 2,000 feet of any real property which is the subject of a proposed zoning change, provided, however, that the governing body of any state or municipal water company has filed with the Building Official in the Town a map survey, which shall be kept as a public record, showing areas of surface water resources and/or watersheds and parcels of land within 2,000 feet thereof.
(6)
No defect in the form of any notice under this section shall render any ordinance or amendment invalid, unless such defect is found to be intentional or misleading.
(7)
Costs of any notice required under this section shall be borne by the applicant.
(d)
Limitations on amendments to zoning ordinance. In granting a zoning ordinance amendment, the Town Council may limit the change to one or more of the permitted uses in the zone to which the subject land is rezoned, and impose such limitations, conditions and restrictions, including without limitation:
(1)
Requiring the petitioner to obtain a permit or approval from any and all federal, state or local governmental agencies having jurisdiction over the land and use, which are subject to the zoning change;
(2)
Relating to the effectiveness or continued effectiveness of the zoning change; and/or
(3)
Relating to the use of the land as it deems necessary.
The Building Official and the Town Clerk shall cause the limitations and conditions so imposed to be clearly noted on the zoning map and recorded in the land evidence records, provided, however, 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 years or more after the zone change becomes effective, the Town Council may, after a public hearing as herein before set forth, change the land to its original zoning use before such petition was filed. If any limitation, condition, or restriction in an ordinance amendment is held to be invalid by a court in any action, that holding shall not cause the remainder of the ordinance to be invalid. |
(e)
Appeal of enactment of or amendment to zoning ordinance. An appeal of the enactment of or an amendment to this appendix may be taken to the superior court for Providence County by filing a complaint within 30 days after such enactment, or amendment has become effective. The complaint shall set forth with specificity the area or areas in which the enactment or amendment does not conform to the comprehensive plan and/or the manner in which it constitutes a taking of private property without just compensation. Such appeal may be taken by an aggrieved party or by any legal resident or landowner of the Town, or by any association of residents or landowners of the Town. This appeal shall not stay the enforcement of the zoning ordinance, as enacted or amended, but the court may, in its discretion, grant a stay on appropriate terms, which may include the filing of a bond, and make such other orders as it deems necessary for an equitable disposition of the appeal.
§ 17-14 Administration of Zoning Ordinance.
[Ord. No. 08-31, 10-7-2009]
(a)
Maintenance of zoning ordinance. The Town Clerk shall be the custodian of this zoning ordinance and zoning map or maps created thereunder, and in conjunction with the Building Official, shall be responsible for maintenance and update of the text and zoning map comprising this appendix. Changes which impact the zoning map shall be depicted on the map within 90 days of such authorized change(s). The planning department shall be responsible for review of this appendix annually, and whenever changes are made to the comprehensive plan of the Town, to identify any changes necessary and forward these changes to the Town Council.
(b)
Publication and availability of zoning ordinance. Printed copies of this appendix and map(s) shall be available to the general public through the offices of the Town Clerk and the Building Official, and shall be revised to include all amendments. A reasonable charge may be made for copies to reflect printing and distribution costs.
Upon publication of this appendix and map(s), and any amendments thereto, the Town Clerk shall send a copy, without charge, to the associate director of the Division of Planning of the Department of Administration of the State of Rhode Island, and to the state law library.
§ 17-15 Vested rights.
[Ord. No. 08-31, 10-7-2009]
(a)
Applications deemed to be substantially complete. Any application for development under this appendix, including an application for a building permit, variance, special use permit, planned development, or cluster development or under any other applicable provision or article, shall be deemed substantially complete when all required documents, including plans, together with required fees, are received by the official designated herein to receive such applications. Required documents shall include only those documents specified either by this appendix or by rules adopted and published by the permitting authority prior to the time the application is filed.
(b)
Applicable regulations. Any application for development under this appendix that is substantially complete prior to the enactment or amendment of this appendix shall be reviewed according to the regulations applicable in the zoning ordinance in force at the time the application was submitted. If such application is approved, the applicant must begin construction or exercise the right granted in the application if no construction is involved, not more than one year after the date of such approval. All construction must be completed not more than two years after the date of such approval, unless specifically set forth to the contrary in the original approval.
§ 17-16 Effective date.
[Ord. No. 08-31, 10-7-2009]
This appendix is in effect when passed by the Town Council as of June 29, 1994, and was amended August 16, 1995, November 20, 1996, and November 4, 1998. This appendix, originally enacted June 29, 1994, and amended from time to time, shall take effect upon its adoption, and all other ordinances or parts thereof inconsistent herewith are hereby repealed.
§ 17-17 Severability.
[Ord. No. 08-31, 10-7-2009]
If any provision of this appendix or of any rule, regulation or determination made thereunder, or the application thereof to any person, agency or circumstances, is held invalid by a court of competent jurisdiction, the remainder of this appendix or the rule, regulation, or determination and the application of such provisions to other persons, agencies, or circumstances shall not be affected thereby. The invalidity of any section or sections of this appendix shall not affect the validity of the remainder of the ordinance.