An appeal to the zoning board of review may be taken by an aggrieved party from the decision of the zoning officer, planning board or the historic district commission. The appellant shall file with the secretary of the zoning board of review and the official or agency from whom the appeal is taken, a statement of the appeal, a copy of his plat, a copy of the list of abutting owners furnished therewith and the reasons for disapproval of the concerned official or agency's action, together with the names and addresses of any other persons who appeared before the official or agency in opposition to his application. Such papers shall be filed with the secretary of the zoning board of review within ten days after the final action of the official or the agency on the application. The official or agency from the appeal is taken shall forthwith 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 planning board.

A.

Hearing of Appeals. The zoning board of review shall fix a reasonable time for the hearing of the appeal, give public notice thereof as well as due notice to the parties in interest, including the applicant, abutting owners and any other person who entered an appearance before the official or the agency from whom the appeal is taken from and in accordance with Section 17.112.070, and decide the same within a reasonable time. The cost of any notice required for the hearing shall be borne by the appellant. Upon the hearing, any party in interest may appear in person or by an agent or attorney.

B.

Participation in Zoning Hearing. Participation in a zoning hearing or other proceeding by a party shall not be a cause for civil action or liability except for acts not in good faith, intentional misconduct, a knowing violation of law, transactions where there is an improper personal benefit, or malicious, wanton, or willful misconduct.

C.

Decisions and Records of the Zoning Board of Review. In exercising its powers the zoning board of review may, in conformity with this zoning code, reverse or affirm wholly or partly and may modify the order, requirement, decision, or determination appealed from and may make such orders, requirements, decisions, or determinations as ought to be made, and to that end shall have the powers of the officer or agency from whom the appeal was taken. All decisions and records of the zoning board of review respecting appeals shall conform to the provisions of Section 17.112.060.

(Ord. 2000-4 (part), 2000: Ord. 65-94 (part), 1994: prior code § 1266.03(1))

A.

An aggrieved party may appeal a decision of the zoning board of review to the Newport County superior court by filing a complaint setting forth the reasons of appeal within twenty (20) days after the decision has been recorded and posted in the office of the city clerk. The decision shall be posted in a location visible to the public in the city hall for a period of twenty (20) days following the recording of the decision. The zoning board of review shall file the original comments 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 thirty (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, the original applicant or appellant and the members of the zoning board of review shall be made parties to the proceedings. The appeal shall 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.

B.

If, before the date set for hearing in the superior court, an application is made to the court for leave to present additional evidence before the zoning board of review and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for the failure to present it at the hearing before the zoning board of review, the court may order that the additional evidence be taken before the zoning board of review upon conditions determined by the court. The zoning board of review may modify its findings and decision by reason of the additional evidence and shall file that evidence and any new findings or decisions with the superior court.

C.

The review shall be conducted by the superior court without a jury. The court shall consider the record of the hearing before the zoning board of review and, if it shall appear to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal to present the evidence in open court, which evidence, along with the report, shall constitute the record upon which the determination of the court shall be made.

D.

The court shall not substitute its judgment for that of the zoning board of review as to the weight of the evidence on questions of fact. The court may affirm the decision of the zoning board of review or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of the appellant have been prejudiced because of findings, inferences, conclusions, or decisions which are:

1.

In violation of constitutional, statutory, or zoning code provisions;

2.

In excess of the authority granted to the zoning board of review by statute or zoning code;

3.

Made upon unlawful procedure;

4.

Affected by other error of law;

5.

Clearly erroneous in view of the reliable, probative, and substantial evidence of the whole record; or

6.

Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(Ord. 2000-4 (part), 2000: Ord. 65-94 (part), 1994: prior code § 1266.03(2))

A.

An appeal of an enactment of or an amendment to the zoning code may be taken to the Newport County superior court by filing a complaint, as set forth herein, within thirty (30) days after the enactment or amendment has become effective. The appeal may be taken by an aggrieved party or by any legal resident or landowner of the city or by any association of residents or landowners of the city. The appeal shall not stay the enforcement of the zoning code, 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.

B.

The complaint shall set forth with specificity the area or areas in which the enactment or amendment does not conform with the comprehensive plan and/or the manner in which it constitutes a taking of private property without just compensation.

C.

The review shall be conducted by the superior court without a jury. The court shall first consider whether the enactment or amendment of the zoning code is in conformance with the comprehensive plan. If the enactment or amendment is not in conformance with the comprehensive plan, then the court shall invalidate the enactment or the amendment, or those part of the enactment or amendment which are not in conformance with the comprehensive plan. The court shall not revise the zoning code to conform with the comprehensive plan, but may suggest appropriate language as part of the court decision.

D.

In the case of an aggrieved party, where the court has found that the enactment or amendment of the zoning code is in conformance with the comprehensive plan, then the court shall next determine whether the enactment or amendment works as a taking of property from the aggrieved party. If the court determines that there has been a taking, the court shall remand the case to the city council, with its findings that a taking has occurred, and order the city to either provide just compensation or rescind the enactment or amendment within thirty (30) days.

E.

The superior court shall retain jurisdiction, in the event that the aggrieved party and the city do not agree on the amount of compensation, in which case the superior court shall hold further hearings to determine and to award compensation. Furthermore, the superior court shall retain jurisdiction to determine the amount of an award of compensation for any temporary taking, if that taking shall exist.

F.

The court may, in its decision, upon motion of the parties or on its own motion, award reasonable attorney's fees to any party to an appeal, as set forth herein, including the city.

(Ord. 2000-4 (part), 2000: Ord. 65-94 (part), 1994: prior code § 1266.03(3))

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning officer or the agency from whom the appeal is taken certifies to the zoning board of review, after an appeal shall have been duly filed, that by reason of facts stated in the certificate a stay would in the zoning officer's or the agency's opinion cause imminent peril to life of property. In that 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 official or agency from whom the appeal is taken on due cause shown.

(Ord. 2000-4 (part), 2000: Ord. 65-94 (part), 1994: prior code § 1266.03(5))