North Smithfield City Zoning Code
PART 5
Administration and Enforcement
§ 340-5.1 Administration and enforcement.
A.
A Building/Zoning Official, hereinafter referred to as a "Building/Zoning Official," shall be designated to administer and enforce this chapter. He may be provided with the assistance of such other persons as required. The Building/Zoning Official shall have minimum qualifications as set forth by the Town Administrator and approved by the Town Council.
B.
He is not a judicial officer and shall not exercise quasi-judicial authority granted solely to the Board. He shall not issue special use permit or variances. His discretion is bounded by this chapter, and he has no authority to mitigate the severity of the application of this chapter to individuals. Appeals lie from his decision only to the Board. No other person(s) or no Board(s) shall have authority to overrule his decisions excepting the Zoning Board, as provided in this chapter, or order that he grant a specific permit or take a particular action while he is in office except indirectly through the amending of this chapter. If the Building/Zoning Official shall find that any of the provisions of this chapter are being violated, he shall, prior to the close of the following Town workday, notify by certified or registered mail, the person responsible for such violations, indicate the nature of the violation and order the action necessary to correct it. He shall order discontinuance of illegal use of land, buildings, or structures; removal of illegal buildings or structures or of illegal additions, alterations, or structural changes; discontinuance of any illegal work being done; or shall take any other action authorized by this chapter or law to ensure compliance with or to prevent violation of its provisions.
C.
The Building/Zoning Official shall, amongst others, be responsible for the following:
(1)
Issuing of any required permits or certificates;
(2)
Collection of required fees;
(3)
Keeping of records showing the compliance of uses of land;
(4)
Authorizing commencement of uses or development under the provisions of this chapter;
(5)
Inspection of suspected violations;
(6)
Issuance of violation notices with required correction action;
(7)
Collection of fines for violations;
(8)
Performing such other duties and taking such actions as may be assigned in this chapter.
§ 340-5.2 Building permits required.
A.
No building or other structure shall be erected, moved, added to, or structurally altered without a permit approved or issued by the Building/Zoning Official. No building permit shall be approved or issued by the Building/Zoning Official except in conformity with the provisions of this chapter, unless he receives a written order from the Zoning Board of Review in the form of an administrative appeal special use permit, or variance as provided by this chapter.
§ 340-5.3 Application for building permit.
A.
All applications (see "application," Article XXXV, Terminology) for building permits shall be accompanied by duplicate plans drawn to scale, showing the actual dimensions and shape of the lot to be built upon, the exact sizes and locations on the lot of buildings already existing, if any, and the location and dimensions of the proposed building, wetlands, water bodies or alteration. The application shall include all setbacks and such other information as lawfully may be required by the Building/Zoning Official, including existing or proposed building or alteration, existing or proposed uses of the building and land, the number of families, housekeeping units, or rental units the building is designed to accommodate, conditions existing on the lot, and such other matters as may be necessary to determine conformance with, and provide for the enforcement of this chapter.
B.
One copy of the plans shall be returned to the applicant by the Building/Zoning Official, after he shall have marked such copy either as approved or disapproved and attested to same by his signature on such copy. The original, similarly marked, shall be retained by the Building/Zoning Official as a Town record.
C.
The applicant, upon presentation to the Building/Zoning Official for the purpose of a building permit utilizing any combination of contiguous lots for the purpose of said building permit, shall provide to the Building/Zoning Official a deed description in which said combination of lots is unified into one lot. Said deed description/deed shall be recorded in the land evidence records of the Town of North Smithfield.
§ 340-5.4 Certificates of zoning compliance for new, altered or nonconforming uses.
A.
It shall be unlawful to use or occupy or permit the use or occupancy of any building or premises, or both, or part thereof hereafter created, erected, changed, converted, or wholly or partly altered or enlarged in its use or structure until a certificate of zoning compliance shall have been issued by the Building/Zoning Official stating that the proposed use of the building or land conforms to the requirements of this chapter, and the Building/Zoning Official shall state the facts upon which the certificate is issued.
B.
No nonconforming structure or use shall be maintained, renewed, changed, or extended until a certificate of zoning compliance shall have been issued by the Building/Zoning Official. The certificate of zoning compliance shall state specifically wherein the nonconforming use differs from the provisions of this chapter, provided that upon enactment or amendment of this chapter, owners or occupants of nonconforming uses or structures shall have 15 months to apply for certificates of zoning compliance. Failure to make such application within 15 months shall be presumptive evidence that at the time of enactment or amendment of this chapter:
(1)
The use of the property and any structures thereon were in conformity with the provisions of this chapter, including special uses approved by action of the Zoning Board of Review, or
(2)
The property is vacant, unused, or unoccupied and may or may not conform to the dimensional regulations of the district in which it is located.
C.
No permit for erection, alteration, moving, repair of any building shall be issued until an application has been made for a certificate of zoning compliance, and the certificate shall be issued in conformity with the provisions of this chapter upon completion of work.
D.
The Building/Zoning Official shall maintain a record of all certificates of zoning compliance, and a copy shall be furnished upon request to any person.
§ 340-5.5 Relation to other codes, regulations and ordinances.
The issuance of a building permit or a certificate of zoning compliance shall, in no way, relieve the applicant of the responsibility of obtaining such permits or approvals as may be required under the provisions of other codes, regulations and ordinances relating to the use, erection, alteration or modification of a building or structure or to the use or subdivision of land.
§ 340-5.6 Expiration of building permit.
A.
If the work described in any building permit has not begun within 180 days from the date of issuance thereof, said permit shall expire; it shall be canceled by the Building/Zoning Official; and written notice thereof shall be given to the persons affected.
B.
If the work described in any building permit has not been substantially completed within two years of the date of issuance thereof, said permit shall expire and be canceled by the Building/Zoning Official; provided, however, that the Building/Zoning Official may upon application thereof and for cause shown, grant an extension. Said application should be filed prior to the expiration within the original two-year period of the permit and further provided that not more than one such extension for a period of one year be granted. In event of cancellation, written notice thereof shall be given to the persons affected, together with notice that further work as described in the canceled permit shall not proceed unless and until a new building permit has been obtained.
§ 340-5.7 Expiration of certificate of zoning compliance.
A certificate of zoning compliance shall be valid for the duration of the use which was the subject of the original application and issuance and shall expire upon termination of that use.
§ 340-5.8 Construction and use as provided in applications, plans, permits and certificates of zoning compliance.
Building permits or certificates of zoning compliance issued on the basis of plans and applications approved by the Building/Zoning Official authorize only the use, arrangement, and construction set forth in such approved plans and applications. Any other use, arrangement, or construction use, or construction differing from that authorized shall be deemed a violation of this chapter, and punishable as provided by § 340-5.33 hereof.
§ 340-5.9 Use of dumpsters.
[Amended 11-16-2015]
A.
General.
(1)
Any person, corporation, partnership or any other entity requiring the use of a temporary dumpster shall, prior to placing a dumpster on public or private property for any period of time, obtain a dumpster permit from the Building and Zoning Department. Said permit shall specify the size of the dumpster, location and the name and phone number of the dumpster company and the length of time that said dumpster may be used on the said public/private property.
(2)
Cleanout dumpster permits are valid for 30 days from date of issuance. New construction dumpsters are valid for 180 days from date of issuance. Each permit is renewable once. After a renewal permit has expired, a 90 day waiting period is required before another dumpster permit can be issued.
B.
Minimum standards. Any dumpster used in the Town shall meet the following standards:
(1)
The dumpster shall be painted so as to be reasonably resistant to rust and corrosion.
(2)
The name and telephone number of the dumpster owner shall be clearly painted on at least two sides, except when opened for deposit or servicing.
(3)
Dumpsters 20 cubic yards or less in size shall be capable of being closed on all sides, except when open for deposit and servicing.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
(4)
Dumpsters greater than 20 cubic yards in size shall be capable of being secured so as to prevent the spillage or overflow of material from the container.
(5)
Dumpsters shall be serviced only during the hours of 7:30 a.m. and 6:00 p.m. on weekdays, 7:30 a.m. and 4:00 p.m. on Saturdays, and prohibited on Sundays and legal holidays.
(6)
Dumpster placement must meet accessory structure setbacks for the zoning district where the property is located.
C.
Use. All dumpsters used in the Town shall be maintained and with a frequency sufficient to prevent spillage or overflow, to prevent the buildup of offensive odors, and to prevent a public hazard. The responsibility for the maintenance and servicing of dumpsters shall rest with the property owner. The maintenance of dumpsters shall include the cleanup and removal of all litter thrown or left on the dumpster premises to prevent litter from drifting or blowing on to adjacent premises. Dumpsters shall only be used for construction and/or household debris. Decomposable matter shall not be disposed of in these dumpsters.
D.
Violations and penalties. Any person, corporation, partnership or any other entity who shall violate any provision of this section, or any provisions of any rules or regulation adopted pursuant to authority granted by this section, will be assessed a fine of up to $100 for the first offense, $250 for the second offense, and $500 for each additional offense payable by the permit holder to the North Smithfield Municipal Court. Upon determination by the Building/Zoning Official or his/her designee, that the public health, safety and welfare would be better served, the Building/Zoning Official may give notice of such violation and abate said condition according to statute or give notice of said violation and petition the municipal court for an order to abate any such violation.
E.
Enforcement. The provisions or this article shall be enforced by the Building/Zoning Official or his or her designee.
§ 340-5.10 Membership.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
A Zoning Board of Review, otherwise referred to as the "Board," is hereby created. The Board shall be appointed by the Town Council and shall consist of five members, each to hold office for the term of five years, with terms limited as set forth in § 5-15 of this Code; provided, however, that the original appointments shall be made for terms of one, two, three, four, and five years, respectively. The Zoning Board of Review shall also include two alternates to be designated as the first and second alternate members, and shall be appointed for a term of one year, sit as active members, and may actively participate in hearings. The first alternate shall vote if a member of the Board is unable to serve at a hearing and the second shall vote if two members of the Board are unable to serve at a hearing. In the absence of the first alternate member, the second alternate member shall serve in the position of the first alternate. No member or alternate may vote on any matter before the Board unless they have attended all hearings concerning such matter. If a vacancy occurs in the Board, the Town Council shall appoint a new member for the unexpired term. All members of the Board shall be residents of the Town and no member shall be an elected official or salaried employee of the Town. The Board, as constituted at the time of the passage of this chapter, shall be continued and the original appointments, as specified above, shall be deemed to have been made. Members of the Board may be removed from office for cause by the unanimous vote of the Town Council upon written charges and after a public hearing.
§ 340-5.11 Organization.
Once each year the Board shall organize electing from its membership a Chairman and Vice Chairman. The Board may engage the services of a secretary or recorder within the limit of the funds available to it or may appoint one of its membership as Secretary.
§ 340-5.12 Proceedings of Board.
A.
The Board shall adopt and publish rules necessary to the conduct of its affairs, and in keeping with the provisions of this chapter. Meetings shall be held at the call of the Chairman and at such other times as the Board may determine. In conducting hearings and arriving at its decisions, the Board shall consist of only five voting members. The Chairman, or in his absence, the Vice Chairman, may administer oaths and compel the attendance of witnesses and the submission of evidence. All hearings of the Board shall be open to the public.
B.
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. No member or alternate may vote on any matter before the Board unless they have attended all hearings concerning such matter. Decisions shall be recorded and filed in the office of the Board within 30 days from the date when the decision was rendered, and shall be a public record. The Zoning Board of Review shall keep written minutes of its proceedings, showing the vote of each member, upon each question, or, if absent or failing to vote, indicating such fact, and 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 Board in an expeditious manner upon completion of the proceeding. For any proceeding in which the right of appeal lies to the Superior or Supreme Court, the Zoning Board of Review shall have the minutes taken either by a competent stenographer or recorded by a sound recording device.
§ 340-5.13 Hearings; appeals; notice.
A.
Appeals to the Board may be taken by any party aggrieved or by any officer, department, board, or bureau affected by any order or decision of the Building/Zoning Official concerning the provisions of this chapter. Such appeal shall be taken within 20 days by filing with the Building/Zoning Official and with the Board a notice of appeal specifying the grounds for the appeal. The Building/Zoning Official shall make available to the Board all papers constituting the record upon which the action appealed from was taken. In filing for an appeal, the applicant, in addition to filing any plans and specifications supporting the request, shall accompany the request with a list of property owners within 200 feet of the property in question and a filing fee payable to the Town.
B.
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, knowing violation of law, transactions where there is an improper personal benefit, or malicious, wanton, or wilful misconduct.
§ 340-5.14 Procedure.
A zoning ordinance adopted pursuant to this chapter shall provide that the Zoning Board of Review shall have the following powers and duties:
A.
To hear and decide appeals within 65 days of the date of the filing of the appeal where it is alleged there is error in any order, requirement, decision, or determination made by the Building/Zoning Official in the enforcement or interpretation of this chapter, or of any ordinance adopted pursuant hereto.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
B.
To hear and decide appeals from a party aggrieved by a decision of an Historic District Commission, pursuant to R.I.G.L. §§ 45-24.1-7.1 and 45-24.1-7.2.
C.
To hear and decide appeals where the Zoning Board of Review is appointed as the Board of Appeals for airport zoning regulations pursuant to R.I.G.L. § 1-3-19.
D.
To authorize upon application, in specific cases of hardship, variances in the application of the terms of this chapter, pursuant to R.I.G.L. § 45-24-41.
E.
To authorize upon application, in specific cases, special use permits, pursuant to R.I.G.L. § 45-24-42(A), where the Zoning Board of Review is designated as a permit authority for special use permits.
F.
To refer matters to the Planning Board, or to other boards of the Town as the Zoning Board of Review may deem appropriate, for findings and recommendations.
G.
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 in the instance where any necessary state or federal agency approvals are not received within a specified time period.
H.
To hear and decide such other matters, according to the terms of this chapter or other statutes, and upon which such board may be authorized to pass under such ordinance or other statutes.
§ 340-5.15 Stay of proceedings.
An appeal shall stay all proceedings in furtherance of the action appealed from, unless the Building/Zoning Official or 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 officer's or agency'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 or agency from whom the appeal is taken on due cause shown.
§ 340-5.16 Vested rights.
A petition before the Zoning Board for a building permit, special use permit, variance or appeal shall be considered substantially complete when all required documents, including plans, together with required fees are received by the official designated therein to receive such applications. The Zoning Ordinance of 1973 (as amended to date) will apply, even if at some later date, but prior to the project receiving complete or final approval, this chapter and/or Zoning Map is changed.
§ 340-5.17 Powers and duties.
The Zoning Board of Review shall have the following powers and duties:
§ 340-5.18 Board has powers of Official on appeals; reversing decision of Official.
A.
The Board shall hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by the Building/Zoning Official in the enforcement of this chapter. In exercising the above-mentioned powers, the Board may, so long as such action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly or 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 Building/Zoning Official from whom the appeal is taken. The concurring vote of three members shall be necessary to reverse any order, requirement, decision, or determination of the Building/Zoning Official.
B.
The Board shall hear and decide such appeal within 65 days of the date of the filing of the appeal. It shall publish notice of the hearing at least once prior to the date of such hearing in a newspaper of general circulation in the Town, the date of the first notice shall be at a minimum 14 days prior to the date of the hearing, shall give due notice to the applicant, abutting owners, and other parties in interest, and shall hear and decide the appeal within a reasonable time. Any party may appear at the hearing in person, by agent, or by attorney.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
§ 340-5.19 Special use permits; conditions governing applications; procedures.
A.
To hear and decide only such special use permits as the Board is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether special use permits should be granted; and to grant special use permits with such conditions and safeguards as are appropriate under this chapter; or to deny special use permits when not in harmony with the purpose and intent of this chapter. The Board, immediately upon receipt of an application for special use permit, shall request that the Planning Board and/or staff report its findings and recommendations, including the statement on the general consistency of the application with the goals and purposes of the Comprehensive Plan for the Town. The findings and recommendations, in writing, shall be forwarded to the Zoning Board of Review within 30 days of receipt of the application from said Board.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
B.
The Board shall fix a reasonable time for the hearing of a special use permit. It shall publish notice of the hearing at least once each week for two successive weeks immediately prior to the date of such hearing in a newspaper of general circulation in the Town, the date of the first notice shall be at a minimum 14 days prior to the date of the hearing. Notice of hearing shall be sent by certified mail return receipt requested to the applicant, and to all those who would require notice under R.I.G.L. § 45-24-33. Said notice shall also include the street address of the subject property. The cost of such notification shall be borne by the applicant. The Board shall hear and decide on the application within a reasonable time. Any party may appear at the hearing in person, by agent, or by attorney.
C.
The concurring vote of four members shall be required to decide in favor of an applicant on any matter concerning a special use permit upon which it is required to pass under this chapter. In granting a special use permit, the Board may impose such additional safeguards and conditions on the proposed use as are deemed necessary in order to conform to these requirements. The Board shall make a written decision, including findings of fact, certifying compliance with the rules governing that special use permit, and that satisfactory provision and arrangement has been made, where applicable concerning the following:
(1)
Ingress and egress to property and proposed structures thereon with particular reference to fire or catastrophe;
(2)
Off-street parking and loading areas where required, with particular attention to the items in Subsection C(1) above and the economic, noise, glare, or odor effects of the special use permit on adjoining properties and properties generally in the district;
(4)
Utilities, with reference to locations, availability, and compatibility;
(5)
Screening and buffering with reference to type, dimensions, and character;
(6)
Signs, if any, and proposed exterior lighting with reference to glare, traffic safety, economic effect, and compatibility and harmony with properties in the district;
(7)
Required yards and other open space;
(8)
General compatibility with adjacent properties and other property in the district.
D.
All zone and area regulations of the district in which the special use permit is sought shall apply to such uses, except where specifically exempted or amended by the conditions under which the special use permit is granted by the Board. The disregarding of any such condition or safeguard shall be considered as a violation.
E.
All stipulations imposed by the Board in granting a special use permit shall be recorded in Town land evidence records. A copy of such shall be filed in the Building/Zoning Official's office.
F.
Following establishment of this chapter, any use permitted as a special use permit under the terms of this chapter shall be considered as a permitted use. (See § 340-2.8.)
G.
Dimensional variance in conjunction with special use permit. An applicant may apply for, and be issued, a dimensional variance in conjunction with a special use permit. If the special use permit could not exist without the dimensional variance, the Zoning Board of Review shall consider the special use permit and the dimensional variance together to determine if granting the special use permit is appropriate based on the special use criteria set forth herein and the dimensional variance evidentiary standards set forth herein.
§ 340-5.20 Variances; conditions governing applications; procedures.
A.
An application for relief from the literal requirements of a this chapter because of hardship may be made by any person, group, agency or corporation by filing with the Building/Zoning Official an application describing the request and supported by such data and evidence as may be required by the Zoning Board of Review or by the terms of this chapter. There shall be only two categories of variance, a use variance or a dimensional variance.
B.
The Building/Zoning Official shall immediately transmit each such application once all required information has been received to the Zoning Board of Review and shall transmit a copy of each application to the Planning Board.
C.
The Zoning Board of Review, immediately upon receipt of an application for a variance in the application of the literal terms of this chapter, may request that the Planning Board and/or staff shall report its findings and recommendations, including a statement on the general consistency of the application with the goals and purposes of the Comprehensive Plan for the Town, in writing to said Zoning Board of Review within 30 days of receipt of the application from said Board. The Zoning Board shall hold a public hearing on any application for variance in an expeditious manner, after receipt, in proper form, of an application. The Zoning Board of Review shall publish notice of the hearing at least once prior to the date of such hearing in a newspaper of general circulation in the Town, the date of the first notice shall be at a minimum 14 days prior to the date of the hearing. Notice of hearing shall be sent by first-class mail to the applicant, and to at least all those who would require notice under R.I.G.L. § 45-24-53. Said notice shall also include the street address of the subject property. The cost of such notification shall be borne by the applicant.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
D.
In granting a variance, the Zoning Board of Review 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 is not due to a physical or economic disability of the applicant;
(2)
That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
(3)
That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of this chapter or the Comprehensive Plan upon which this chapter is based;
(4)
That the relief to be granted is the least relief necessary;
(5)
That granting the variance requested will not confer on the applicant any special privilege that is denied by this chapter to other lands, structures, or buildings in the same district.
E.
The Zoning Board of Review shall, in addition to the standards in Subsection D, 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 chapter. Nonconforming use of neighboring land or structures in the same district and permitted use of lands or structures in an adjacent district shall not be considered in granting a use variance; and
(2)
In granting a dimensional variance, that the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience. The fact that use may be more profitable or that a structure may be valuable after the relief is granted shall not be grounds for relief.
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
F.
A variance from the terms of this chapter shall not be granted by the Board unless and until:
(1)
The Board shall make written findings certifying that the application requirements have been met; and
(2)
The concurring vote of four members shall be required to decide in favor of an applicant on any matter concerning a variance, upon which it is required to pass under this chapter. In granting any variance, the Board may prescribe appropriate conditions and safeguards in conformity with this chapter. Violation of such conditions and safeguards, when made a part of the terms under which the variance is granted, shall be deemed a violation.
G.
All stipulations imposed by the Board in granting a variance permit shall be recorded in Town land evidence records. A copy of such shall be filed in the Building/Zoning Official's office.
§ 340-5.21 Expiration of special use permits, variances.
A special use permit or a variance from the provisions of this chapter shall expire 18 months from the date granted by the Zoning Board of Review unless the applicant exercises the permission granted or receives a building permit to do so and commences construction and diligently prosecutes the construction until completed. No reapplication for a special use permit or variance shall be granted without a hearing.
§ 340-5.22 Repetitive petitions.
Where the Zoning Board of Review denies a request for a special use permit, variance or otherwise rules against the applicant on other than procedural grounds, the Zoning Board of Review may not consider another application requesting any or all the same changes, except:
§ 340-5.23 Procedure.
A.
An aggrieved party may appeal a decision of the Zoning Board of Review to the Superior Court for the county in which the Town is situated by filing a complaint setting forth the reasons of appeal within 20 days after such decision has been recorded and posted in the office of 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 Zoning Board of Review 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 Zoning 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.
B.
If, before the date set for hearing in the Superior Court, 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 such 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 part to such appeal to present such evidence in open court, which evidence along with the said 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 ordinance provisions;
(2)
In excess of the authority granted to the Zoning Board of Review by statute or ordinance;
(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.
§ 340-5.24 Procedure for amendments.
A.
The regulations set forth in this chapter may from time to time be amended or repealed by the Town Council; provided, however, that no such action may be taken until reported on by the North Smithfield Planning Board, which said report shall be made to the Town Council within 45 days from the date the petition is filed with the Town Planner or shall otherwise be deemed to be waived and after a public hearing before the Town Council, at which time, parties in interest and citizens shall have an opportunity to be heard.
B.
Petitioners are also subject to review procedures as well as fees established under Article XXV, Site Plan Review, and Part 7, Soil Erosion and Sediment Control, as applicable. Except for Local Historic District applications, any person, group of persons or corporation may initiate such proceedings by paying the filing fee (see Appendix A)[1] and filing the following with the Town Planner for a presubmission conference:
[Amended 8-1-2022]
(1)
Six copies of a written application to the Town Council indicating the provisions of this chapter under which an amendment is being sought and stating the grounds on which it is requested;
(2)
Six copies of a site plan to include the following:
(a)
Name and address of owner(s), name and address of engineer or surveyor, date, North point and scale.
(b)
Boundary of entire tract and any adjacent or contiguous parcels in the same ownership.
(c)
Any existing watercourses, railroad and street rights-of-way, utility lines and easements.
(d)
All building setback lines, easements and rights-of-way. Location and use of all existing and proposed buildings and structures in the development.
(e)
Detail of adjacent properties (abutters) and public ways as will relate to the subject premises, to the neighborhood and to the street pattern.
(f)
Existing and proposed contours at intervals no greater than five feet.
(g)
Building dimensions, indicating exterior of building design and proposed landscaping.
(h)
Present and proposed locations and designs for ingress, egress, parking, road system and pedestrian circulation.
(3)
Where municipal water and/or municipal sanitary sewers are required by this chapter, written permission for connection into each system shall be submitted from the water and/or sewer commissions upon submission of the application for a zoning amendment.
(4)
The petitioner will incur all expenses related to advertising and public hearings which are in excess of the filing fee.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
C.
The Town Planner shall review the proposal and forward comments to the Building/Zoning Official and forward comments to the Planning Board as well as other reviewing parties. The Planning Board shall then review the proposed amendment and its implications in Town, and forward its comments and recommendations to the Town Council within 45 days from the date the petition is filed with the Town Planner.
D.
Immediately upon receipt of the Board's written comment and 10 copies of the required information set forth in this section, the Town Clerk shall forward a single copy to the members of the Town Council. A filing fee fixed by the Town Council under the provisions of § 340-5.29 of this chapter shall accompany all applications to the Council except those initiated by a person representing the Town or one of its official bodies.
E.
The Town Council may, upon motion for passage of a zoning amendment, stipulate that a particular request revert back to the original zone if certain conditions are not met; provided, however, that a hearing, duly noticed, shall be required.
§ 340-5.25 General amendment.
A.
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 such Town at least once each week for three successive 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 of the proposed ordinance. Written notice, which may be a copy of said newspaper notice, shall be mailed to the parties specified in Subsections B, C, D and E 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:
[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
(1)
Specify the place of said hearing and the date and time of its commencement;
(2)
Indicate that adoption, amendment or repeal of a zoning ordinance is under consideration;
(3)
Contain a statement of the proposed amendments to this chapter that may be printed once in its entirety, or summarize or describe the matter under consideration as long as the intent and effect of the proposed ordinance is expressly written in that notice;
(4)
Advise those interested where and when a copy of the matter under consideration may be obtained or examined and copied; and
(5)
State that the proposals shown 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.
B.
Where a proposed general amendment to an existing zoning ordinance includes changes in an existing Zoning Map, public notice shall be given as required by Subsection A of this section.
C.
Where a proposed text amendment to an existing zoning ordinance would cause a conforming lot of record to become nonconforming by lot area or frontage, written notice shall be given to all owners of the real property as shown on the current real estate tax assessment records of the city or Town. The notice shall be given at least two weeks prior to the hearing at which the text amendment is to be considered, with the content required by Subsection A. If the zoning ordinance contains an existing merger clause to which the nonconforming lots would be subject, the notice shall include reference to the merger clause and the impacts of common ownership of nonconforming lots. The sender of the notice shall utilize and obtain a United States Postal Service certificate of mailing, and the certificate or an electronic copy thereof shall be retained to demonstrate proof of the mailing.
[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
D.
Where a proposed amendment to an existing ordinance includes a specific change in a zoning district map but does not affect districts generally, public notice shall be given as required by Subsection A of this section, with the additional requirements that:
(1)
Notice shall include a map showing the existing and proposed boundaries, zoning district boundaries, and existing streets and roads and their names, and Town boundaries where appropriate; and
(2)
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 in or within not less than 1,000 feet of their perimeter of the area proposed for change, whether within the Town or within an adjacent city or town. Notice shall also be sent to any individual or entity holding a recorded conservation or preservation restriction on the property that is the subject of the amendment. Such notice shall be sent by registered, certified or first-class mail to the last-known address of such owners as shown on the current real estate tax assessment records of the Town in which the property is located, provided, for any notice sent by first-class mail, the sender of the notice shall utilize and obtain a United States Postal Service certificate of mailing, PS Form 3817, or any applicable version thereof, to demonstrate proof of such mailing. For proposed Local Historic Districts, property owners within not less than 200 feet of the boundary of the area proposed for change shall be notified.
[Amended 8-1-2022; at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
E.
Notice of a public hearing shall be sent by certified mail, return receipt requested, to the city or town council of any city or town to which one or more of the following pertain:
(1)
Which is located in or within not less than 1,000 feet of the boundary of the area proposed for change; or for proposed Local Historic Districts, notice of public hearing shall be by first class mail to property owners within 200 feet of the property boundary line; or
[Amended 8-1-2022]
(2)
Where there is a public or quasi-public water source, or private water source that is used or is suitable for use as a public water source, within 2,000 feet of any real property that is the subject of a proposed zoning change, regardless of municipal boundaries.
F.
Notice of a public hearing shall be sent to the governing body of any state or municipal water department or agency, special water district, or private water company that has riparian rights to a surface water resource 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 department or agency, special water district or private water company has filed with the Building/Zoning 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.
G.
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.
H.
Cost of any notice required under this section shall be borne by the applicant.
I.
Limitations and conditions.
(1)
In granting a zoning ordinance amendment, notwithstanding the provisions of R.I.G.L. § 45-24-37, 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:
(a)
Requiring the petitioner to obtain a permit or approval from any and all state or local governmental agencies or instrumentalities having jurisdiction over the land and use which are the subject of the zoning change;
(b)
Relating to the effectiveness or continued effectiveness of the zoning change; and/or
(c)
Relating to the use of the land as it deems necessary.
(2)
The responsible Town official shall cause the limitations and conditions so imposed to be clearly noted on the Zoning Map and recorded in the land evidence records, provided, 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 duly noticed public hearing as hereinbefore set forth, change the land to its original zoning use before such petition was filed. If any limitation, condition, or restriction in an ordinance is held to be invalid by a court in any action, that holding shall not cause the remainder of this chapter to be invalid.
J.
The above requirements are to be construed as minimum requirements.
K.
Any person or entity may register with the Town's public notice registry for electronic notice of any changes to this chapter; provided, however, that notice pursuant to the public notice registry does not alone qualify a person or entity on the registry as an aggrieved party under R.I.G.L. § 45-24-31(4).
[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. III)]
§ 340-5.26 Repetitive petitions.
Where the Town Council denies a petition of specific amendment to this chapter or Zoning Map or otherwise rules against any applicant on other than procedural grounds, the Town Council may not consider another application requesting any or all of the same specific amendments for the same property except:
A.
Where ordered to do so by a court of competent jurisdiction; or
B.
Where, after six months of the date of such denial or withdrawal, the application is accompanied by an affidavit setting forth facts, to the satisfaction of said Town Council, showing a substantial change of circumstances justifying a rehearing.
§ 340-5.27 Vested rights.
Upon Planning Board review of a project and written decision setting forth their recommendation, the Town Council shall deem an application for amendment substantially complete. The Zoning Ordinance of 1973 (as amended to date) will apply to the project, even if at some later date, but prior to the project receiving complete or final approval, the Zoning Ordinance and/or Zoning Map is changed.
§ 340-5.28 Appeal of enactment of or amendment to zoning ordinance.
A.
An appeal of an enactment of or an amendment to this chapter may be taken to the Superior Court for the county in which the municipality is situated by filing a complaint as set forth herein within 30 days after such enactment, or amendment has become effective. 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. The appeal shall not stay the enforcement of this chapter, 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 Court without a jury. The Court shall first consider whether the enactment or amendment of this chapter 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 parts of such enactment or amendment which are not in conformance with the Comprehensive Plan. The Court shall not revise this chapter 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 this chapter 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 Town Council, with its findings that a taking has occurred, and order the Town to either provide just compensation or rescind such enactment or amendment within 30 days.
E.
The Superior Court shall retain jurisdiction, in the event that the aggrieved party and the Town do not agree on the amount of compensation, in which case the Superior Court shall hold further hearings to determine such compensation and award same. Furthermore, the Superior Court shall retain jurisdiction to determine the amount of an award of compensation for any temporary taking, if the same shall exist.
F.
The Court may in its discretion, upon motion of the parties or on its own motion, award reasonable attorneys' fees to any party to an appeal as set forth herein, including the Town.
§ 340-5.29 Establishing payment.
All applicants and appellants shall pay for reasonable fees, in an amount not to exceed actual costs incurred, for the adequate review and hearing of applications, issuance of zoning certificates and the recording of the decisions thereon. The Schedule of Fees (Appendix A)[1] shall be posted in the office of the Building/Zoning Official and may be altered or amended only by the Town Council.
[1]
Editor's Note: Appendix A is included as an attachment to this chapter.
§ 340-5.30 Interpretation; application; conflict.
In their interpretation and application, the provisions of this chapter shall be held to be minimum requirements, adopted for the maintenance of the public health, safety, morals, or general welfare. Wherever the requirements of this chapter disagree with the requirements of any other lawfully adopted rules, regulations, ordinances, deed restrictions, or covenants, the most restrictive or that imposing the higher standards shall govern.
§ 340-5.31 Procedure.
[Amended 3-16-1998]
Whenever a violation of this chapter occurs, or is alleged to have occurred, any person may file a written complaint with the Building/Zoning Official. Such complaint shall be in writing and shall state fully the cause and basis for the complaint. The Building/Zoning Official shall properly record the complaint, immediately investigate, taking action as needed thereon as provided by this chapter. Within 14 days of the date the complaint was recorded, the Building/Zoning Official shall notify the complainant in writing of his findings and/or determinations. The complainant's personal information shall remain confidential and shall not be divulged to the complainee, or any other person (including Town employees and elected officials) without written authorization of the complainant as part of the original formal written complaint.
§ 340-5.32 Notice of violation and response to violations.
[Amended 3-16-1998]
A.
Any person or corporation having received a notice of violation, shall have 30 days to respond. If no response is received within 30 days the Building/Zoning Official shall forward the matter to the Town Solicitor for further action.
B.
Violations shall be rectified within 30 days of the response to the Notice of Violation. If in the opinion of the Building/Zoning Official, no attempt is made to rectify the violation, the matter shall be referred to the Town Solicitor for further action.
C.
An extension of 30 days may be granted if, in the opinion of the Building/Zoning Official, the violator has made a reasonable attempt to comply but needs additional time to do so. Any violation not rectified within 90 days of the receipt of the notice of violation shall be forwarded to the Town Solicitor for further action.
§ 340-5.33 Violations and penalties.
A.
Any person or corporation, whether as principal agent, employee or otherwise, who violates any of the provisions of this chapter shall be fined not exceeding $500 for each offense. Each day being an offense.
B.
The erection, construction, enlargement, conversion, moving or maintenance of any building which is continued, operated or maintained contrary to any of the provisions of this chapter is hereby declared to be a violation of this chapter and unlawful. The Town Solicitor shall, immediately upon any such violation having been called to his attention, institute injunction, abatement or any other appropriate action to prevent, enjoin, abate or remove such violation.
C.
Nothing herein contained shall prevent the Town from taking such other lawful action as is necessary to prevent or remedy any violation.