Cumberland City Zoning Code
ARTICLE 18
Variances, Special Use Permits and Modifications
§ 18-1 Procedures for granting of a variance or special use permit.
[Ord. No. 08-31, 10-7-2009; amended 12-6-2023 by Ord. No. 23-26]
(a)
Application. An application for relief from the literal requirements of this Zoning Ordinance because of hardship or an application for a special use permit may be made by any person, group, agency or corporation, provided that the owner or owners of the subject property must join in any application, by filing with the permitting authority an application describing the request and supported by such data and evidence as may be required. An application from a corporation must be signed by its attorney or duly authorized officer of the corporation.
(b)
Review by Planning Board. For applications not reviewed pursuant to unified development review, the Zoning Board shall, immediately upon receipt of an application, request that the Planning Board report its findings and recommendations, including a statement on the general consistency of the application with the goals and purposes of the comprehensive community plan of the Town Cumberland Comprehensive Plan in writing to the Board within 30 days. The finding of the Planning Board with respect to the consistency of the application with the goals and purposes of the comprehensive plan shall be recorded in the record of the Board; and the declaration of the Planning Board shall be a recognized statement of fact before the Board.
(c)
Hearing and Notice Requirements. The permitting authority shall hold a public hearing on any application for variance or special use permit in an expeditious manner, after receipt, in proper form, of an application. The permitting authority shall give notice of such public hearing, which notice shall include the precise location of the subject property, including the street address, and a description of the relief sought, at least 14 days prior to the date of the hearing by publication of notice in a newspaper of local circulation within the Town, which shall meet the requirements of this subsection and R.I.G.L. AA 45-24-53.
(d)
The same notice shall be posted in the Town Clerk's Office and one other municipal building in the Town and shall be accessible on the home page of the Town's website at least 14 days prior to the hearing. For any notice sent by first class mail, the sender of the notice shall submit a notarized affidavit to attest to such mail. The cost of newspaper and mailing notification shall be borne by the applicant.
(e)
Requests for dimensional and use variances and special use permits submitted under a unified development review provision of this Zoning Ordinance shall be submitted as part of the subdivision or land development application to the Administrative Officer of the Planning Board, pursuant to Article 12, Section 4. All subdivision or land development applications submitted under the unified development review provisions of this Zoning Ordinance shall have a public hearing, which shall meet the requirements of this subsection and R.I.G.L. AA 45-23-50.1(c).
(f)
Uses Not Listed in Table of Uses. To the extent a proposed land use is not specifically listed in Appendix B, Attachment 1, Table 1 (Use Table), the property owner may submit a written request to the Zoning Board of Review for an evaluation and determination of whether the proposed use is of a similar type, character, and intensity as a listed use requiring a special use permit. Upon such determination, the proposed use may be considered to be a use requiring a special use permit.
§ 18-2 Granting of a variance.
[Ord. No. 08-31, 10-7-2009; amended 12-6-2023 by Ord. No. 23-26]
(a)
General Standards. In granting a variance, the Board shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings:
(1)
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 a physical or economic disability of the applicant, excepting those physical disabilities addressed in R.I.G.L. AA 45-24-30(a)(16);
(2)
That said hardship is not the result of any prior action of the applicant; and
(3)
That the granting of the requested variance will not alter the general characteristic of the surrounding area or impair the intent or purpose of this Zoning Ordinance or the Town of Cumberland Comprehensive Plan.
(b)
The Board shall, in addition to the above standards, require that evidence be entered into the record of the proceedings showing that:
(1)
In granting a use variance, the subject land or structure cannot yield any beneficial use if it is required to conform to the provisions of this appendix. Nonconforming use of neighboring land or structures in the same district and permitted use of land or structures in an adjacent district shall not be considered grounds for granting a use variance.
(2)
In granting a dimensional variance, 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, meaning that the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief.
§ 18-3 Requirements for specific categories of special use.
[Ord. No. 08-31, 10-7-2009; Ord. No. 13-01, § 1, 3-6-2013; amended 12-6-2023 by Ord. No. 23-26[1]; 2-5-2025 by Ord. No. 24-26A; 9-3-2025 by Ord. No. 25-18]
The following special uses are permitted upon approval by the board, in accordance with this article. Applications for special use permits must meet the specific and objective criteria specified herein as to each use:
(a)
Adult Use - Books, Entertainment, Retail. The following criteria shall apply in addition to those pursuant to Article 8, Section 34.
(1)
No adult use shall not be located within 500 feet of any residential, agricultural or open space use or zoning district nor within 500 feet of a school, religious facility, public recreation facility, or day care center.
(2)
No adult use shall be located within 2,000 feet of any other adult use. Distance shall be measured from property line to property line along the shortest distance between property lines.
(3)
All windows, doors, openings, etc., for all adult uses shall be located, covered, screened or otherwise treated so that views of the interior of the establishment are not possible.
(b)
Assisted Living Facility.
(c)
Auto Body Repair.
(1)
The minimum lot size shall be 20,000 square feet.
(2)
Buildings shall be set back at least 25 feet from the street right-of-way and at least 20 feet from any other property line.
(3)
The establishments shall be screened along interior side and rear lot lines with a solid wall or opaque fence, a minimum of four feet and a maximum of six feet in height.
(4)
All storage of all merchandise, auto parts and supplies and the repair, service and sales and/or leasing operations shall be performed within a fully-enclosed building.
(5)
No partially dismantled, wrecked, or unlicensed vehicles shall be stored outdoors on the premises. This standard does not apply to vehicles under repair and/or service.
(6)
Outside storage of vehicles intended to be repaired and/or serviced shall be limited to one vehicle for every 500 square feet of lot area.
(7)
No motor vehicles shall be stored and no repair and/or service work shall be conducted in the public right-of-way.
(8)
If washing of vehicles occurs inside or outside a building, the entire washing area shall be paved and all the water used in such washing shall be properly drained on site with no run-off onto the public right-of-way.
(9)
Only waterborne base coat paints shall be used in the operation of the business.
(10)
Only dustless sanding systems shall be used in the operation of the business.
(11)
No variances may be granted relating to the dimensional requirements as stated in this subsection (c).
(d)
Auto Service and Gasoline Sales. Automobile service stations shall be permitted subject to Rhode Island Department of Environmental Management regulations and only when the following requirements are met.
(4)
Requirements for other structures:
(5)
Requirements for underground tanks:
a.
Maximum storage capacity for petroleum products shall be 42,000 gallons.
b.
Minimum separation distance required between underground tanks, adjoining buildings and property lines should be 10 feet. Service station buildings are exempt from the separation distance requirement if there are no basements or pits that extend below the top of any tank within the separation distance.
(6)
Requirements for repairing and washing vehicles.
a.
Repairing shall be limited to minor repair work, such as tire or tube repairing, battery changing, lubrication, engine tune-ups and similar type work, and must be conducted wholly within a fully-enclosed building.
b.
Repair work shall not include any bodywork.
c.
No partially dismantled, wrecked, or unlicensed vehicles shall be stored outdoors on the premises. This standard does not apply to vehicles under repair and/or service.
d.
Storage of all merchandise, auto parts and supplies shall be conducted wholly within a fully-enclosed building.
e.
No motor vehicles shall be stored and no repair and/or service work shall be conducted in the public right-of-way.
f.
If washing of vehicles occurs inside or outside a building, the entire washing area shall be paved and all the water used in such washing shall be properly drained on site with no run-off onto the public right-of-way. All outdoor activities shall be screened from adjoining A and R zones by a four-foot-high compact evergreen screen or tight board fence.
(7)
Vehicle services establishments shall be screened along interior side and rear lot lines with a solid wall or fence, a minimum of four feet and a maximum of six feet in height.
(8)
The site shall otherwise comply with landscaping requirements of these Regulations.
(9)
Outside storage of vehicles intended to be repaired shall be limited to one vehicle for every 500 square feet of lot area.
(10)
Electric vehicle charging stations may be included as an accessory use to a gas station but may not be counted toward parking requirements.
(e)
Car Wash.
(1)
Car wash facilities shall be screened along interior side and rear lot lines with a solid fence or wall, a minimum of four feet and a maximum of six feet in height. One shrub, a minimum of three feet in height at time of planting, shall be planted linearly every three feet on center along such fence or wall.
(2)
When a car wash facility abuts a residential, agricultural, or open space use or zoning district, the facility shall adhere to the buffer requirements in this appendix.
(3)
When vacuums are included on the site, they shall include mufflers to reduce the sound of the equipment to a maximum of 80 decibels.
(4)
Trash receptacles shall be placed near all vacuum stations as applicable and at the entrance to the car wash entrance.
(5)
Outside storage of vehicles intended to be repaired shall be limited to one vehicle for every 500 square feet of lot area.
(f)
Communications and Utilities.
(1)
The property shall be completely enclosed along all lot lines by an opaque fence a minimum of four feet and a maximum of six feet in height, including ingress and egress. Where buildings are proposed, they should be located along the street frontage, meeting setback requirements. Otherwise, screening the operation from the street, which may include fences, tall vegetation, or walls along the front, is required.
(2)
Where the use abuts a residential use or zoning district, the fence shall be set back a minimum of 20 feet from each such lot line abutting a residential use or zoning district.
(g)
Communication Towers. It is the intent of this section to encourage, where appropriate, the location of antennae on existing structures, as well as the joint use (co-location) of new and existing towers with the goal of minimizing the number of poles while providing for "seamless" or complete coverage. It is also the intent of this section to facilitate the use of public property and structures for the siting of towers and antennae.
(1)
The application shall also include a narrative report and supplemental information which contains the following:
a.
An explanation of the technical, economic and other reasons for the design and placement of the tower, including its area of coverage.
b.
An inventory of existing towers, or sites approved for towers, that are within the jurisdiction of the Town or within one mile of the Town's border thereof, including specific information about the location, height and design of each tower, and its area of coverage.
c.
A certification of structural integrity from a professional engineer registered by the State of Rhode Island.
d.
Evidence that the applicant has made all reasonable efforts to utilize existing substantial structures for cellular antennae and that no other structures are reasonably available within the area sought by the applicant to produce adequate communications coverage.
e.
An explanation of how the site will be designed to co-locate future carriers and how many carriers can be technically accommodated, as well as a statement that if the site can physically support co-location and the additional carrier is willing to sign a commercially reasonable lease, it shall be allowed to co-locate.
(2)
The applicant shall also submit a surety of an amount equal to the cost of removal of the tower and all ancillary equipment in the event that use of the tower is discontinued. The surety amount shall be approved by the permitting authority in consultation with the Public Works Director.
(3)
Public safety requirements. At the time of application for any communication tower, space shall be made available on the tower for Town police, fire, rescue and public works communication needs related to public safety, health and welfare, at no cost to the Town. The communication tower owner and wireless service carriers shall assist the Town, when deemed necessary, in the enhancement of existing public safety communication systems by providing for the acquisition and installation of related equipment.
(4)
Development standards. The following shall be specifically applied to all communication towers:
a.
Whether erected on an existing building or erected as a separate structure, the tower shall be integrated through location and design to be compatible with the existing characteristics of the site to the extent practical.
b.
No freestanding communications tower shall exceed 150 feet in height.
c.
The distance between the base of the tower or pole and any parcel boundary shall not be less than one foot distance for every one foot of tower height, plus an additional 15% of the total height of the tower added to the lineal distance from the property boundary.
d.
Removal of on-site vegetation and changes to existing topography shall be minimized.
e.
Towers shall be enclosed by a protective fence not less than eight feet nor more than 10 feet in height from the natural grade.
f.
Appropriate screening, including use of trees and other vegetation, shall be installed at all tower sites to screen views from adjacent properties and streets.
g.
Towers shall be neutral in appearance, and related structures shall blend in with the surrounding environment through the use of appropriate design, materials and colors.
h.
No tower shall be artificially lighted except as required by the Federal Aviation Commission.
i.
There shall be a minimum setback of 50 feet from any residential property line and, where the use is a freestanding tower, a minimum of 50 feet at least as far back from lot lines as the height of the structure.
(5)
Site and coverage consideration.
a.
Town owned sites or facilities that are located in the prospective coverage area which could potentially accommodate the proposed tower or antennae shall be considered first and given priority for location of said tower or antennae.
b.
When considering an application for a communication tower. The permitting authority shall evaluate the context of the site under consideration, including the underlying zoning, uses of the property, uses and activities on adjoining properties, maximization of co-location on the proposed facility and compatibility of the proposed tower/facility with the area in which it is located.
c.
No new communications tower shall be erected within the unobstructed service range of an existing tower or where telecommunications coverage is otherwise provided.
d.
Evidence that the area of Town to be serviced by the tower already has complete telecommunications coverage can be grounds for denial of the special use permit.
e.
Abandonment of communication towers. Any communication tower that has not been used for a period of one year shall be considered to be abandoned and it and all ancillary equipment shall be dismantled and removed at the owner's expense. The owner of such facility shall have 90 days from the receipt of notice from the Building Official to complete removal. Failure shall be considered a violation of this appendix and subject to the penalties and enforcement actions contained in AA 17-5.
(h)
Contract Construction Service, Including Outdoor Storage.
(1)
The outdoor storage area shall be screened with a solid fence or wall, a minimum of four feet and a maximum of six feet in height. One shrub, a minimum of three feet in height at time of planting, shall be planted linearly every three feet on center along the outside of such fence or wall.
(2)
Where the use abuts a residential, agricultural or open space use or zoning district, the property shall adhere to the buffer requirements in this appendix.
(i)
Day Care Center.
(1)
The applicant shall provide proof of state licensing.
(2)
There shall be a designated pick up and drop off area near an entrance to the building with a queuing lane that does not block vehicle parking spaces or extend into the street.
(3)
The parking plan shall provide safe pedestrian circulation with clearly marked crosswalks from each parking area to the building entrance(s).
(4)
Minimum lot size shall be 30,000 square feet.
(6)
Setbacks in agricultural zones shall conform to those found in Article 5.
(7)
Requirements for parking. Minimum of one space per 250 square feet of GFA, plus one space per employee.
(8)
The facility shall be located on a principal or minor arterial roadway as defined in the R.I. Statewide Planning's Highway Functional Classification System.
(j)
Drive-Through Service.
(2)
Stacking spaces provided for drive-through uses shall be
a.
A minimum of 10 feet in width, as measured from the outermost point of any service window, menu board or bay entrance, to the edge of the driveway, and 20 feet in length. In the case of a recessed service window, the measurement shall be taken from the building wall.
b.
Stacking spaces shall begin behind the vehicle parked at a final point of service, such as a service window or car wash bay (and does not include a menu board). Spaces shall be placed in a single line behind each lane or bay.
c.
The number of required queued cars shall apply to all lanes or bay where multiple lanes are proposed.
(3)
All drive-through lanes shall be located and designed to ensure that they do not adversely affect traffic circulation on adjoining streets. Drive-through lanes on corner lots shall not route exiting traffic into adjacent residential neighborhoods.
(4)
Drive-through facilities shall be screened along, side and rear lot lines, with a solid wall or fence or other hardscape or landscape, a minimum of four feet and a maximum of six feet in height.
(5)
An additional buffer of 10 feet shall be provided along lot lines adjacent to residential, agricultural and open space uses and zoning districts.
(6)
Speakers used for ordering and other service shall be located so as not to disturb or interfere with the use of neighboring properties, considering such property's type of use (e.g., industrial, commercial, institutional, residential, etc.).
(7)
The site shall otherwise comply with landscaping requirements of these regulations. The landscaping standards do not apply to drive-through facilities within multitenant retail centers where the drive-through use does not abut lot lines.
(8)
No drive-through facility shall be located in any front yard. Entrances to a drive-through facility shall be offset at least 150 feet from an intersection. No drive-through lane shall exit directly onto a street.
(9)
Drive-through lanes shall be delineated from traffic lanes and parking areas with striping, curbing, landscaping and/or the use of alternative paving material. Where pedestrians will intersect with a drive-through lane, crosswalks shall be provided, making use of striping and/or alternative paving material.
(10)
Adequate directional and warning signs shall be provided to assure smooth traffic circulation and pedestrian safety, including marking entrances, exits and one-way lanes of drive-through areas. The placement of all directional signage shall be subject to review and approval under the provisions of these regulations.
(11)
Menu boards or other informational boards shall face away from public rights-of-way. All lighting associated with menu boards, window service areas or travel lanes shall be directed and shielded so as to prevent any glare or reflection on adjoining streets or property. The placement of all informational signage shall also be subject to review and approval under the provisions of these regulations.
(k)
Drug or Alcohol Rehabilitation Facility.
(1)
Such facilities shall meet all federal, state and local requirements, including, but not limited to, licensing, health, safety and building code requirements.
(2)
A copy of the state license shall be visible at all times.
(3)
When located in a nonresidential district, the building shall be designed with a lobby entrance along the primary frontage.
(l)
Educational Institutions.
(1)
The applicant shall provide proof of state licensing as required.
(2)
The site shall otherwise comply with landscaping requirements of these regulations.
(3)
There shall be a designated drop-off area near an entrance to the building with a queuing lane that does not block vehicle parking spaces or extend into the street.
(4)
A traffic impact analysis shall be required that includes an analysis of drop off and pick up capacity and operations.
(n)
Group Quarters, Short-Term Rentals and Lodging.
(1)
All short-term rentals must be owner-occupied at least six months per year.
(2)
If the building had been built as a dwelling, the exterior shall maintain its original appearance as a dwelling.
(3)
Cooking facilities are prohibited in guest rooms.
(4)
If meals are provided, only registered guests may be served.
(5)
Leasing of a common dining area for social events is prohibited.
(6)
Guest stays are limited to a maximum of 14 consecutive days.
(7)
Minimum on-site parking shall be one parking space per guest room.
(8)
No more than two individuals per bedroom shall be allowed.
(o)
Marijuana Facilities - Retail Sales. Medical Use, and/or Compassion Centers.
(1)
No marijuana establishment shall be combined with residential use of property.
(2)
All operations shall take place within a permanent building and shall not be visible from the exterior of the building.
(3)
No marijuana facility that dispenses marijuana or marijuana-related products shall have a gross floor area of more than 3,000 square feet.
(4)
Hours of operation shall not be outside the hours of 8:00 a.m. through 10:00 p.m.
(5)
No drive-through service shall be permitted for a marijuana facility.
(6)
No outside storage of marijuana, related supplies, or promotional materials shall be permitted.
(7)
Marijuana facilities shall be ventilated in such a manner that:
a.
No pesticides, insecticides, or other chemicals or products used in the cultivation or processing of marijuana are dispersed into the outside atmosphere; and
b.
No odor from marijuana or its processing can be detected by a person with an unimpaired and otherwise normal sense of smell at the exterior of the marijuana facility, or any adjoining use of property. An odor control plan shall be submitted that provides for adequate ventilation, detailing the specific odor-emitting activities or processes to be conducted on site, the source of those odors, the locations from which they are emitted from the facility, the frequency of such odor-emitting activities, the duration of such odor-emitting activities, and the administrative and engineering controls that will be implemented to control such odors, including maintenance of such control.
(8)
A security plan including information relating to alarms, fencing, gates, limited access areas, delivery procedure, police details and video and lighting locations. The security plan shall show the arrangement of pedestrian circulation and access to the public points of entry to the premises from the nearest public street or off-street parking area. The security plan must be approved by the Chief of Police or his/her designee and updates shall be submitted to and approved by the Chief of Police or his/her designee. To the maximum extent possible, the security plan and any updates shall be deemed confidential documents.
(10)
That the exterior appearance of the structure will be consistent with the exterior appearance of structures already constructed or under construction within the immediate neighborhood, to prevent blight or deterioration, or substantial diminishment or impairment of property values within the neighborhood.
(11)
Lighting shall be required such that it will illuminate the compassion center, its immediate surrounding area, any accessory uses including storage areas, the parking lot(s), its front facade, and any adjoining public sidewalk. Wherever possible, lighting shall be directed straight downward and full-cutoff fixtures shall be used in order to prevent glare or light trespass.
(12)
The property shall be at least 3/4 mile from the property line of another marijuana facility and at least 1,000 feet from a pre-existing public or private school.
(p)
Materials Processing Centers.
(1)
The materials processing area shall be completely enclosed along all lot lines by an opaque fence a minimum of four feet and a maximum of six feet in height, including ingress and egress. Where buildings are proposed, they should be located along the street frontage, meeting setback requirements. Otherwise, screening the operation from the street, which may include fences, tall vegetation, or walls along the front is required.
(2)
The use shall be screened along interior side and rear lot lines with a solid fence or wall, a minimum of four feet and a maximum of six feet in height.
(3)
Where the use abuts a residential use or zoning district, the fence shall be set back a minimum of 20 feet from each such lot line abutting a residential use or zoning district.
(q)
Outdoor Dining.
(1)
The seating area may only be established adjacent to the business with which the outdoor area is associated, as shown on a submitted site plan drawn to scale that shows the delineated area of the proposed outdoor seating area, including the location and placement of tables, seats, planters, awnings, umbrellas, and the business's entrance and windows.
(2)
If proposed in front of an adjacent business, the applicant must receive written permission from the adjacent business.
(3)
Outdoor seating areas must be separated from parking areas with a physical barrier to contain and define the outdoor seating area, as approved by the Chief of Police or his/her designee.
(4)
Parking requirements shall be increased accordingly to include the outdoor seating.
(r)
Parking Structures and Lots.
(1)
Parking Structure.
a.
On the ground floor facade along public streets where parking spaces are visible, a decorative fence and landscape or a kneewall is required to screen parking spaces. Fence or kneewall shall be a minimum of four feet in height.
b.
For parking structures with rooftop open-air parking, a minimum four-foot parapet wall is required for screening of parked vehicles.
c.
Where parking structures front on public streets, facade design and screening shall mask the interior circulation ramps and create the illusion of horizontality along the street.
(2)
Parking Lot.
a.
A parking lot shall be used solely for the temporary parking of motor vehicles and shall not be used as an off-street loading area.
b.
Only structures for the shelter of attendants or for payment kiosks shall be permitted in a parking lot. Shelters or kiosks shall not exceed eight feet in height and 36 square feet in area.
d.
Parking lots shall not exceed 80% impervious surface.
(t)
Small hydroelectric generation facilities (see Article 18-7).
(u)
Solar energy systems (see Article 18-8).
(v)
Veterinarian and Animal Hospital: Kennel and Nonagricultural.
(1)
Exterior exercise areas shall be located in the interior side or rear yard and shall be completely enclosed along all lot lines by an opaque fence a minimum of six feet high and a maximum of eight feet high, including ingress and egress.
(2)
Where the use abuts a residential, agricultural or open space use or zoning district, the fence shall be set back a minimum of 20 feet from each such lot line abutting a residential, agricultural or open space use or zoning district.
(3)
All overnight boarding operations shall be located indoors.
(4)
All animal care and/or kennel facilities shall have a valid municipal license.
(w)
Criteria to Subdivide a Lot with Multiple Residences.
(1)
All principal residential structures existing on the property are pre-existing and legally non-conforming; and
(2)
Each parcel in the proposed subdivision shall have adequate physical access to a public road; and
(3)
The applicant shall make each new lot conform with the dimensional requirements of the zoning district to the greatest extent possible; and
(4)
Each new lot shall have the required minimum parking; and
(5)
Any new lot fronting on an unimproved public street shall improve the street frontage to Town standards for the entirety of the frontage; and
(6)
The Planning Board shall modify dimensional requirements for minimum lot area, setbacks, frontage, width, and lot coverage and assign dimensional requirements as necessary, in order to achieve one residential structure per record lot.
§ 18-4 Modifications.
[Ord. No. 08-31, 10-7-2009; amended 12-6-2023 by Ord. No. 23-26]
(a)
In applications for relief from the literal dimensional requirements of this appendix as contained in Article 5 involving the construction, alteration, or structural modification of a structure or lot of record, the Zoning Officer shall be authorized to grant approval in the form of a modification permit. Such modification shall not exceed 15% of any dimensional requirement specified in this appendix.
(b)
Suitability Determination. Within 10 days of receipt of a request for a modification, the Zoning Officer shall make a decision as to the suitability of the requested modification, based on the following:
(1)
The modification requested is reasonably necessary for the full enjoyment of the permitted use;
(2)
If the modification is granted, neighboring property will neither be substantially injured nor its appropriate uses substantially impaired;
(3)
The modification requested does not violate any rules or regulations with respect to freshwater wetlands;
(4)
The modification requested does not require a variance of a flood hazard requirement, unless the building is built in accordance with applicable regulations.
(c)
In the case of a modification of 5% or less, the Zoning Officer shall have the authority to issue a permit approving the modification without any public notice requirements. All other provisions of this section shall apply to such administrative modification applications.
(d)
In the case of a modification greater than 5%, the Zoning Officer shall notify, by first class mail, all property owners abutting the property which is the subject of the modification request, and shall indicate the street address of the subject property in the notice, and shall publish notice in a newspaper of local circulation within the Town of Cumberland that the modification will be granted unless written objection is received within 14 days. If a written objection is received within 14 days of the public notice, the request for a modification shall be scheduled for the next available hearing before the Zoning Board of Review on application for a dimensional variance, following the standard procedures for such variances, including notice requirements provided for under this appendix. If no such written objection is received within 14 days, the Zoning Officer shall grant the modification, and in granting, may apply such special conditions to the permit as may, in the opinion of the Officer, be required to conform to the intent and purposes of this appendix.
(e)
The Zoning Officer shall keep public records of all requests for modifications, and of findings, determinations, special conditions, and any objections received.
(f)
Costs of any notice required under this section shall be borne by the applicant requesting the modification.
§ 18-5 Special conditions.
[Ord. No. 08-31, 10-7-2009; amended 12-6-2023 by Ord. No. 23-26]
In granting a variance or special use permit, or in making any determination upon which it is required to pass after public hearing under this appendix, the Board may apply such special conditions that may, in the opinion of the board, be required to promote the intent and purposes of the comprehensive plan of the Town and this appendix. Failure to abide by any special conditions attached to a grant 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 for:
(a)
Minimizing adverse impact of the development upon other land, including the type, intensity, design, and performance of activities;
(b)
Controlling the sequence of development, including when it must be commenced and completed;
(c)
Controlling the duration of use or development and the time within which any temporary structure must be removed;
(d)
Assuring satisfactory installation and maintenance of required public improvements;
(e)
Designating the exact location and nature of development; and
(f)
Establishing detailed records by submission of drawings, maps, plats, or specifications.
§ 18-6 Expiration of variances and special use permits.
[Ord. No. 08-31, 10-7-2009; amended 12-6-2023 by Ord. No. 23-26]
Any variance or special use permit shall expire one year after the date of the filing of the resolution with the Town Clerk unless the applicant shall, within one year, obtain a legal building permit and proceed with the construction; or obtain a certificate of occupancy when no legal building permit is required. Variances and special use permits obtained through unified development review. The board may, upon written request and for cause shown prior to the expiration of the initial one-year period, renew the variance or special use permit for a second one-year period. Said request for an extension need not be advertised.
Should an applicant fail to begin construction with a legal building permit, or obtain a certificate of occupancy within the second one-year period, the board may upon written request prior to the expiration of the second one-year period, renew the variance or special use permit for a third one-year period provided that the applicant can demonstrate due diligence in proceeding and substantial financial commitment in promoting the subject of the variance or special use permit since the date of the filing of the resolution, and notice shall be given in accordance with Section 18-1(c) and a hearing shall be held on the request the granting of the variance or special use permit shall be null and void, and any further request for such relief shall require the submittal of a new application with notice given and a hearing held in accordance with Section 18-1(c).
Notwithstanding this provision, in the event an applicant receives extensions from the Planning Board, in conjunction with development approvals, variances and special use permits granted by the Board, shall expire on the date such Planning Board approvals expire.
None of the year periods shall run during the pendency of any superior court actions seeking to overturn the grant.
§ 18-7 Small hydroelectric generation facilities.
[Added 2-6-2019 by Ord. No. 18-25A; amended 12-6-2023 by Ord. No. 23-26]
(a) FEDERAL ENERGY REGULATORY COMMISSION GRID-INTERCONNECTED FACILITY HYDROELECTRIC GENERATION HYDROELECTRIC GENERATION FACILITY ("FACILITY") LOW IMPACT OR "RUN-OF-RIVER" HYDROELECTRIC GENERATION FACILITY NAMEPLATE CAPACITY PUBLIC DRINKING WATER SUPPLY SMALL HYDROELECTRIC GENERATION FACILITY
Definitions. As used in this section, the following terms shall have the meanings indicated:
The federal commission within the United States Department of Energy that is authorized under the Federal Power Act[1] to issue hydroelectric generation licenses using or affecting Waters of the United States.
A facility that is connected to an electric circuit served by an electric utility.
Converting the power potential of flowing water to kinetic energy for the purpose of generating electricity. The most common type of hydroelectric generation facility uses a dam on a river, which impounds water.
Any facility using the power potential of flowing water over a dam to generate electricity.
A facility that produces electricity without the storage of water, where inflow to the facility equals outflow from the facility at all times and where water levels are not drawn down for the purpose of generating power.
The maximum output of electric power production of the hydroelectric generation facility, commonly expressed in megawatts (MW) or kilowatts (KW).
The source of surface water for a public drinking water supplier.
Any low impact or "run-of-river" hydroelectric generation facility using the power potential of flowing water over a dam to generate electricity with a total installed nameplate capacity of 2.0 MW or less. No facility shall be constructed, installed, or modified without first obtaining a license pursuant to the requirements of the Federal Power Act issued by the Federal Energy Regulatory Commission.
[1]
Editor's Note: See 16 U.S.C. AA 791 et seq.
(b)
No small hydroelectric generation facility shall be constructed on a public drinking water supply in the Town of Cumberland, as depicted on the Rhode Island Department of Environmental Management Environmental Resource Map.
(c)
Building Permit. No facility shall be constructed, installed, or modified without first obtaining a building permit and shall be subject to periodic inspections as deemed necessary by the Building Official.
(d)
Major Land Development Project. No facility shall be constructed, installed, or modified without first obtaining approval from the Planning Board for a major land development project in accordance with the Land Development and Subdivision Regulations.[2]
[2]
Editor's Note: See Appendix A, Land Development and Subdivision Regulations.
(e)
Special Use Permit. No facility shall be constructed, installed, or modified without first obtaining a special use permit from the Zoning Board of Review. In addition to other requirements of this article, the following design and operation standards shall be met in order to meet the requirements of a special use permit.
(1)
Site control. The facility proponent shall submit documentation of actual or prospective access and control of the facility site sufficient to allow for the construction and operation of the proposed facility.
(2)
Operation and maintenance plan. The facility proponent shall submit a plan for the operation and maintenance of the facility, which shall include measures for maintaining safe access to the facility, stormwater controls, as well as general procedures for operational maintenance of the facility
(3)
Utility notification. No grid-interconnected facility shall be constructed until evidence has been given to the Planning Department that the facility proponent has submitted notification to the utility company of the intent to construct and operate an interconnected generation facility.
(4)
Lighting. Lighting of small hydroelectric generation facilities shall be consistent with local, state, and federal law. Lighting of other parts of the installation, such as appurtenant structures, shall be limited to that required for safety and operational purposes and shall be reasonably shielded from abutting properties.
(5)
Noise. Noise levels generated by small hydroelectric generation facilities shall be consistent with federal and state law and shall comply with the ambient noise level thresholds prescribed by the Town of Cumberland Code of Ordinances.
(6)
Signage. Signs on small hydroelectric generation facilities shall comply with the Town of Cumberland Zoning Ordinance. Signs shall display identification of the owner or operator of the facility and a twenty-four-hour emergency contact telephone number.
(7)
Security. Small hydroelectric generation facilities shall, at a minimum, comply with federal law and any specific requirements prescribed by the Federal Energy Regulatory Commission. The Town of Cumberland may require additional security measures which are not inconsistent with the requirements prescribed by the Federal Energy Regulatory Commission.
(8)
Emergency services. All means of shutting down the facility shall be clearly marked. The facility owner or operator shall:
(9)
Land clearing. Clearing of natural vegetation shall be limited to what is necessary for the construction, operation, and maintenance of the facility or otherwise prescribed by applicable laws, regulations, and bylaws/ordinances.
(10)
Monitoring and maintenance: small hydroelectric generation facility conditions. The facility owner or operator shall maintain the facility in accordance with the requirements of the federal hydroelectric generation license issued by the Federal Energy Regulatory Commission. In addition, maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief, Emergency Management Director, and emergency medical services. The owner or operator shall be responsible for the cost of maintaining the facility and any access road(s), unless accepted as a public way.
(11)
Financial surety. The facility proponent shall be required to provide a form of surety, either through escrow account, bond, or otherwise, to cover the cost of decommissioning and removing the facility at the end of the federal hydroelectric license term and for restoring the landscape, in an amount and form determined to be reasonable by the Planning Board and subject to review by the Town Solicitor.
§ 18-8 Solar energy systems and facilities.
[Added 10-5-2016 by Ord. No. 16-19; amended 2-15-2017 by Ord. No. 17-01A; 6-5-2019 by Ord. No. 19-09A; 1-15-2020 by Ord. No. 19-34A; 12-6-2023 by Ord. No. 23-26]
(a) PHOTOVOLTAIC SYSTEM RATED NAMEPLATE CAPACITY SOLAR ACCESS SOLAR COLLECTOR SOLAR ENERGY SOLAR ENERGY SYSTEM SOLAR ENERGY SYSTEM, ACTIVE SOLAR ENERGY SYSTEM, COVERED PARKING SOLAR ENERGY SYSTEM, GRID-INTERTIE SOLAR ENERGY SYSTEM, GROUND-MOUNTED SOLAR ENERGY SYSTEM, MAJOR SOLAR ENERGY SYSTEM, MEDIUM SOLAR ENERGY SYSTEM, MINOR SOLAR ENERGY SYSTEM, OFF-GRID SOLAR ENERGY SYSTEM, PASSIVE SOLAR ENERGY SYSTEM, ROOF-MOUNTED
Definitions. As used in this section, the following terms shall have the meanings indicated:
An active solar energy system that converts solar energy directly into electricity.
The maximum rated output of electric power production of the photovoltaic system in watts of alternating current (AC).
The access of a solar energy system to direct sunlight.
A device, structure or part of a device or structure for which the primary purpose is to transform solar radiant energy into thermal, mechanical, chemical, or electrical energy.
Radiant energy received from the sun that can be collected in the form of heat or light by a solar collector.
A device or specific-use structural design feature, a substantial purpose of which is to provide for the collection, storage, and distribution of solar energy for space heating or cooling, electricity generation, or water heating.
A solar energy system whose primary purpose is to harvest energy by transforming solar energy into another form of energy or transferring heat from a collector to another medium using mechanical, electrical, or chemical means.
An active solar energy system that is structurally mounted to the ground yet additionally maintains a permanent function to park vehicles under; may be of any size (minor, medium, or major scale).
A photovoltaic system that is connected to an electric circuit served by an electric utility.
An active solar energy system that is structurally mounted to the ground and is not roof-mounted; may be of any size (minor, medium, or major scale).
An active solar energy system that occupies more than 40,000 square feet of surface area, including inter-row and panel/collector spacing or has a rated nameplate capacity 250kW AC or greater.
An active solar energy system that occupies more than 1,750 square feet but less than 40,000 square feet of surface area, including inter-row and panel/collector spacing or has a rated nameplate capacity 25-250kW AC.
An active solar energy system that occupies 1,750 square feet of surface area or less, inter-row and panel/collector spacing or has a rated nameplate capacity 25kW AC or less.
A photovoltaic system in which the circuits energized by the solar energy system are not electrically connected in any way to electric circuits that are served by an electric utility.
A solar energy system that captures solar light or heat without transforming it to another form of energy or transferring the energy via a heat exchange.
An active solar energy system that is structurally mounted to, or structurally ballasted on the roof of, a building or structure; includes solar shingles; may be of any size (minor, medium, or major scale).
(b)
Building Permit. No solar energy system shall be constructed, installed or modified without first obtaining a building permit and shall be subject to periodic inspections as deemed necessary by the Building Official.
(c)
Dimensional Regulations Ground-Mounted Solar Energy Systems.
(1)
The maximum height of a ground-mounted solar energy system shall be 12 feet, with the exception of solar covered parking structures which shall have a maximum height of 18 feet from the ground, as measured from the pre-development lot grade at the location of the panel. The height shall be measured from the ground level or the base of the system's pedestal to the highest point of the solar energy system, including the top of any support structure or panel.
(2)
Setbacks. Small- and medium-scale ground-mounted solar energy systems that are accessory to a primary building or structure on a lot are provided with more flexible setback requirements than those that would typically apply to a primary structure. Whenever a solar energy system is sited as a principal structure on a lot, the setback requirements for principal structures in that zoning district apply.
a.
Minor ground-mounted solar energy systems accessory to principal structures may be located no closer than 1/2 of the setback that would otherwise apply or 20 feet from the front, side, or rear site lines, whichever is greater. Medium-scale ground-mounted solar installations should maintain the same setbacks as accessory structures.
(3)
Lot coverage. Major and medium ground-mounted solar installations shall cover no greater that 20% of a lot of contiguous lots in common ownership. In Industrial-2 ("I-2") Zoning Districts, for lots over 10 acres in size, up to 30% of lot coverage is allowed, including areas where trees and/or vegetation have been disturbed and/or removed previous to the enactment of this article. In no event shall any ground-mounted solar installation on any lot or contiguous lots in the same or related ownership exceed 10 acres of land determined by lot coverage as set forth above. The term "lot coverage," for the purpose of this section only, shall mean only the area of land physically covered by solar panels and accessory buildings, but shall not include any area or spaces between solar panels. Trees and/or vegetation shall, for purposes of this section only, mean trees with a twenty-four-inch diameter at breast height measured 4.5 feet above the ground minimum.
(4)
Solar energy systems with grass or another pervious surface under them are exempt from impervious surface calculations. If the area is paved or otherwise rendered impervious, then it counts towards any coverage or impervious surface limit. This exemption is not intended to apply to municipal stormwater regulations, as the panels could have the effect of altering volume, velocity, and discharge pattern of stormwater runoff.
(5)
Emergency access as approved by the Fire Department.
(6)
The applicant shall commission and submit at the time of building permit application a wildlife assessment (impact study), conducted by a qualified wildlife expert having no less than five years of experience conducting wildlife assessments, indicating possible risks to local wildlife, habitat, and migratory birds. Additionally, the applicant's wildlife Dimensional/Design Regulations: Roof-Mounted Solar Energy Systems.expert shall also develop a mitigation plan, if applicable, that addresses/mitigates any risk to wildlife, migratory birds, and affiliated habitat.
(d)
Dimensional/Design Regulations: Roof-Mounted Solar Energy Systems.
(1)
Photovoltaic roofing shingles or tiles are preferred and may be directly applied to the roof surface. With such shingle or tile installation a standard red rectangle sign stating "photovoltaic power source" shall be mounted to the area of the electric meter, and a disconnect accessible from the ground shall be installed in this same area.
(2)
Solar devices shall be considered part of the overall design of the structure. Color, shape and proportions of the solar devices should not conflict with the shape and proportions of the roof.
(3)
Rooftop solar energy systems must not increase the footprint of the structure, and must not extend within four feet of any edge of a roof surface.
(4)
Flat roofs. Set solar devices back from the edge and/or behind architectural features to be minimally visible. Panels and devices may be set at a pitch and elevated, if not visible from public streets.
(5)
Pitched roofs. Unless there is no other viable alternative, locate solar panels away from public view so as to not change the character of the building. The system must be parallel to the roofline. Otherwise, location on a primary or street-facing roof plane is not allowed.
(e)
Major Solar Energy Systems. Proposals for major solar energy systems and ground-mounted medium solar energy systems shall be required to comply with the requirements for major land development review under the provisions of AA 5-F of the Cumberland Land Development and Subdivision Regulations.tems.
(f)
Design and Operation Standards: Major and Medium Solar Energy Systems.
(1)
Site control. The project proponent shall submit documentation of actual or prospective access and control of the project site sufficient to allow for the construction and operation of the proposed energy system.
(2)
Operation and maintenance plan. The project proponent shall submit a plan for the operation and maintenance of the large-scale ground-mounted solar energy system, which shall include measures for maintaining safe access to the installation, stormwater controls, as well as general procedures for operational maintenance of the installation.
(3)
Utility notification. No grid-intertie photovoltaic system shall be installed until evidence has been given to the Planning Department that the owner has submitted notification to the utility company of the customer's intent to install an interconnected customer-owned generator. Off-grid systems are exempt from this requirement.
(4)
Lighting. Lighting of solar energy systems shall be consistent with local, state, and federal law. Lighting of other parts of the installation, such as appurtenant structures, shall be limited to that required for safety and operational purposes, and shall be reasonably shielded from abutting properties. Where feasible, lighting of the solar energy system shall be directed downward and shall incorporate full cut-off fixtures to reduce light pollution.
(5)
Screening. With the exception of roof-mounted structures, installations shall plant and properly maintain a twenty-foot-wide vegetated buffer surrounding the perimeter of the installation, consisting of plantings designed to screen the installation but not impede its solar energy capture efficiency. For major solar installations a vegetated buffer plan prepared by a registered landscape architect shall be included with the development application. The vegetative buffer shall consist of plants from the Rhode Island native plant database. All major installations shall be set back at least 50 feet from every boundary line. The twenty-foot buffer shall not begin until the fifty-foot buffer has been met.
(6)
Signage. Signs on solar energy systems shall comply with a municipality's sign ordinance. A sign consistent with a municipality's sign ordinance shall be required to identify the owner and provide a twenty-four-hour emergency contact phone number. Solar energy systems shall not be used for displaying any advertising except for reasonable identification of the manufacturer or operator of the solar energy system.
(7)
Security. With the exception of roof-mounted structures, a fence shall surround the perimeter of the installation of no less than seven and no more than 10 feet in height to prevent unauthorized access with bottom of the fence being elevated at least 16 inches rise from the ground to provide for wildlife access.
(8)
Utility connections. With the exception of roof-mounted structures, reasonable efforts, as determined by the Planning Department, shall be made to place utility connections from the solar photovoltaic installation underground, depending on appropriate soil conditions, shape, and topography of the site and any requirements of the utility provider.
(9)
Emergency services. All means of shutting down the solar energy system shall be clearly marked. For major and medium solar installations:
a.
The solar energy system owner or operator shall provide a copy of the project summary, electrical schematic, and site plan to the local Fire Chief.
b.
Upon request, the owner or operator shall cooperate with the local emergency services in developing an emergency response plan.
c.
Upon request, the owner or operator shall cooperate with the local emergency services to conduct a basic on-site safety and operational training.
d.
The owner or operator shall identify a responsible person for public inquiries throughout the life of the installation.
(10)
Land clearing, soil erosion and habitat impacts. With the exception of roof-mounted structures, forested areas shall not be cleared for the purpose of installing solar installations. Otherwise clearing of natural vegetation shall be limited to what is necessary for the construction, operation, and maintenance of solar energy system or otherwise prescribed by applicable laws, regulations, and bylaws/ordinances. The disturbance and removal of topsoil from the site shall be limited to those areas that are required for the installation of the proposed solar energy system. The permitting authority may give priority to proposed solar projects that utilize existing cleared land or those which minimize the impact on forest and habitat.
(11)
Monitoring and maintenance: solar energy system installation conditions. The solar energy system owner or operator shall maintain the facility in good condition. Maintenance shall include, but not be limited to, painting, structural repairs, and integrity of security measures. Site access shall be maintained to a level acceptable to the local Fire Chief, Emergency Management Director, and emergency medical services. The owner or operator shall be responsible for the cost of maintaining the solar energy system and any access road(s), unless accepted as a public way.
(12)
Modifications. All material modifications to a solar energy system made after issuance of the required building permit shall require approval by the Planning Department.
(13)
Financial surety. With the exception of roof-mounted structures, applicants proposing to develop major and medium solar photovoltaic projects may be required to provide a form of surety, either through escrow account, bond or otherwise, to cover the cost of removal in the event the Town must remove the facility and restore the landscape, in an amount and form determined to be reasonable by the Board (and subject to the review of the Town Solicitor), and/or as agreed to and detailed in the site lease agreements. As part of the review for the lease agreements, the applicant shall submit a fully inclusive estimate of the costs associated with removal. The amount shall include a mechanism for calculating increased removal costs due to inflation and any expected salvage or resale value. Such surety will not be required for municipally or state-owned facilities.
(14)
Removal requirements. With the exception of roof-mounted structures, any major or medium solar energy system that has reached the end of its useful life or has been abandoned shall be removed. Reusable components are to be recycled whenever feasible. The owner or operator shall physically remove the facility no more than 180 days after the date of discontinued operations. The owner or operator shall notify the Board by certified mail of the proposed date of discontinued operations and plans for removal. Decommissioning shall consist of:
a.
Physical removal of all large-scale ground-mounted solar energy systems, structures, equipment and security from the site.
b.
Disposal of all solid and hazardous waste in accordance with local, state, and federal waste disposal regulations.
c.
Stabilization or revegetation of the site as necessary to minimize erosion. The Board may allow the owner or operator to leave landscaping or designated below-grade foundations in order to minimize erosion and disruption to vegetation.
(15)
Abandonment. With the exception of roof-mounted structures, absent notice of a proposed date of decommissioning or written notice of extenuating circumstances, the solar energy system shall be considered abandoned when it fails to operate for more than one year without the written consent of the Town Council and Planning Board as it relates to the land development project approval. If the owner or operator of major and medium solar energy systems fails to remove the facility in accordance with the requirements of this section within 150 days of either abandonment or the proposed date of decommissioning, the Town may physically remove the facility, without further notice.