DIVISION 2. - ZONING BOARD OF REVIEW AND UNIFIED DEVELOPMENT REVIEW

Part of the Code of Ordinances of East Providence, RI.

Local law · 2,200 sections

The text

Footnotes:

--- (3) --- Cross reference— Boards, committees and commissions, § 2-36 et seq.

State Law reference— Zoning board of review, G.L. 1956, § 45-24-56 et seq.

Sec. 19-36. - Zoning board of review membership.#

(a)

There shall be a zoning board of review which shall consist of five members, who shall be qualified electors of the city, each to hold office for a term of five years. Members shall be appointed by the mayor, subject to city council approval, with at least one standing member to be a resident of each ward in the city.

Each member shall continue in office until his successor has been duly appointed and qualified. In case any vacancy shall occur in the board for any cause, the vacancy shall be filled in the manner provided above, and the appointee shall serve for and during the unexpired term of his predecessor.

(b)

Any member of the board may be removed by the city council for due cause including malfeasance, misfeasance, or nonfeasance generally and in particular:

(1)

Failure to maintain reasonable familiarity with state statutes and local ordinances and rules affecting the board;

(2)

Failure to disclose conflict of interest for purposes of disqualification when a member has personal or monetary interest in the matter involved or will be affected by a decision of the board.

(c)

In addition to the five standing members, the mayor shall appoint two alternates to be designated as the first and second alternate members. Alternates shall not reside in the same ward. The first alternate shall serve for a term of five years and the second alternate for a term of four years. These alternate members shall sit and may actively participate in hearings. The first alternate shall vote if a member of the board is unable to serve at a hearing and the second shall vote if two members of the board are unable to serve at a hearing. In the absence of the first alternate member, the second alternate member shall serve in the position of the first alternate. The alternate members shall exercise the same duties and functions of a regular member when serving on the board and may be removed from office by the city council in the same manner as a regular member.

(Rev. Ords. 1987, § 19-36; Ch. 877, § III, 6-6-23; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-37. - Organization.#

(a)

Once each year the zoning board of review shall organize by electing from its membership a vice-chair, and secretary. The zoning officer may serve as clerk of the board and shall perform such duties as are provided by this chapter. Meetings of the board shall be held at the call of the chair or as may be fixed by the board. The chair, or in his absence the vice-chair, may administer oaths and compel the attendance of witnesses by the issuance of subpoena.

(b)

The zoning board of review shall adopt written rules of procedure within six months of the adoption of this chapter.

(c)

All hearings and meetings of the board shall be open to the public. All decisions shall be made and voted upon at a public hearing.

(d)

No member or alternate may vote on any matter before the board unless they have attended all hearings concerning such matter.

(e)

Four active members, which may include alternates, are necessary to conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or herself, shall not sit as an active member, and shall take no part in the conduct of the hearing. A maximum of five members, which may include alternates, are entitled to vote on any issue.

(f)

The concurring vote of a majority of members of the zoning board of review sitting at a hearing are necessary to reverse any order, requirement, decision, or determination of any zoning administrative officer from whom an appeal was taken; and the concurring vote of a majority of members of the zoning board of review sitting at a hearing is required to decide in favor of an applicant on any matter within the discretion of the board upon which it is required to pass under the ordinance, including variances and special use permits.

(g)

No member of the board shall pass on any matter in which he has a business, professional or personal interest. As soon as a conflict occurs for a member, that member shall recuse himself and shall not sit as an active member and shall take no part in the conduct of the hearing.

(h)

For any proceeding in which the right of appeal lies to the superior court 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.

(i)

The board shall keep minutes of its proceedings showing the vote of each member upon each question or, if absent or failing to vote, indicating such fact and shall keep records of its examinations and other official actions, all of which shall be filed in the office of the board of review and shall be a public record.

(j)

Any decision by the zoning board of review, including any special conditions attached thereto shall be mailed to the applicant. In addition a copy of the decision shall be sent to the office of the zoning officer.

(k)

All decisions of the zoning board of review shall be posted in a location visible to the public in the city hall for a period of 20 days following the recording of the decision.

(l)

Members of the zoning board of review shall receive remuneration for their service on the board, as established by the city council.

(Rev. Ords. 1987, § 19-37; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-38. - Powers.#

(a)

The zoning board of review shall have the following powers and duties:

(1)

To hear and decide appeals in a timely fashion where it is alleged there is error in any order, requirement, decision, or determination made by an administrative officer in the enforcement or interpretation of this chapter, or of any ordinance adopted pursuant to this chapter, as per R.I.G.L. 2023 § 45-23-67.

(2)

To hear and decide appeals from any decision or determination made by an administrative officer in accordance with R.I.G.L. 2023 § 45-23-67.

(3)

To authorize upon application, in specific cases of hardship, variances in the application of the terms of the zoning ordinance, pursuant to the state statutes and section 19-40, with the exception of variances issued by the planning board through the unified development review process.

(4)

To authorize upon application, in specific cases special use permits, pursuant to the general laws of state and section 19-39, with the exception of special use permits issued by the planning board through the unified development review process.

(5)

To refer matters to the planning board or to other boards or agencies of the city as the zoning board of review may deem appropriate, for findings and recommendations.

(6)

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.

(7)

To hear and decide such other matters, according to the terms of this article or other statutes, and upon which such board may be authorized to pass under this chapter or other statutes.

(b)

Appeals of zoning board of review decisions shall be as follows:

(1)

An aggrieved party may appeal a decision of the zoning board of review to the superior court for the county 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 city clerk. The decision shall be posted in a location visible to the public in the city 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.

(2)

When an appeal results in a decision by a court of competent jurisdiction, which overturns a decision of the zoning board of review recorded in the city land evidence records, the city solicitor's office shall record notice of the court's decision in the city land evidence records.

(Rev. Ords. 1987, § 19-38; Ch. 914, § I(Att.), 12-19-23)

State Law reference— Powers and duties of zoning board of review, R.I.G.L. 1956, § 45-24-57 et seq.

Sec. 19-39. - Special use permit—Findings required.#

(a)

In granting a special use permit, the zoning board of review, or planning board under the unified development review process, shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings. The special use permit shall conform to the specific criteria established in this ordinance for each type of use category, which criteria shall be in conformance with the purposes and intent of the comprehensive plan and this ordinance.

(b)

In granting a special use permit, the zoning board of review, or planning board under the unified development review process, may apply such special conditions as provided for in section 19-13.

(c)

An applicant may apply for, and be issued, a dimensional variance in conjunction with a special-use permit. If the special use could not exist without the dimensional variance the zoning board of review, or planning board under the unified development review process, shall consider the special-use permit and the dimensional variance together to determine if granting the special use is appropriate based on both the special use criteria and the dimensional variance evidentiary standard.

(Rev. Ords. 1987, § 19-39; Ch. 867, § I, 12-20-22; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-40. - Special use permits—Intent and eligibility.#

(a)

Within the city generally and in particular some zoning districts, certain uses are specified in the schedule of use, section 19-98 as allowed by special use permit only. These uses are of a nature requiring review, in accordance with the state statutes, to determine whether they should be permitted in specific locations; if they meet special conditions and safeguards; and what additional conditions may be required if permission is granted.

(b)

To the extent a proposed land use is not specifically listed in section 19-98, the property owner may submit a written request to the zoning officer 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. The zoning officer will have 30 days to provide a written evaluation to the property owner. Upon such a positive determination, the proposed use may be considered to be a use requiring a special use permit. The applicant shall include the zoning officer's written determination as part of their special use permit application submission. The zoning board, or planning board, as part of the unified review process, may either concur with zoning officer's determination or state on the record its reasons for disagreement with the zoning officer's determination. Disagreement with the zoning officer's determination shall be grounds for denial of an application.

(Rev. Ords. 1987, § 19-40; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-41. - Special use permits—Application process.#

Applications for special use permits shall be filed with the zoning officer acting in his capacity as clerk for the zoning board of review or in accordance with the land development and subdivision regulations if filing under unified development review. Fifteen complete copies of the application must be submitted. The application shall include: (1)

A completed special use permit form indicating the special use permit sought, the grounds for the permit, and information on the scale and size of the proposed use as applicable.

(2)

Names and addresses of all owners of property in or within 200 feet of the perimeter of the subject property, whether within the city or an adjacent city or town, and as shown on the current real estate tax assessment records of the city or town in which the property is located.

(3)

A Class 1 surveyed site plan prepared by a land surveyor registered and licensed to practice in the State of Rhode Island. The site plan shall be drawn at a scale of one inch equals 20 feet (or as appropriate one inch equals 40 feet or one inch equals 80 feet) showing the following for the subject property:

The shape, dimension and area of the subject property;

The location size and use of all existing and proposed structures;

The zoning use district boundaries;

The street number and assessor's lot numbers;

Title block in the lower righthand corner showing the names of the property owners; map, block, parcel of the subject property; date of plan; north arrow; and a blank signature space for the chair; and

Such other information as may be necessary for the execution and enforcement of this chapter.

(4)

Elevations for all buildings sides and floor plans shall be prepared by those permitted to do so by the Rhode Island General Laws.

(5)

An accurate radius map drawn at a scale of one inch equals 100 feet (or as appropriate one inch equals 50 feet or one inch equals 40 feet) which includes:

A title block in the lower righthand corner showing the names of the property owners; map, block, parcel of the subject property; date of plan; and north arrow;

For all property in or within 200 feet of the perimeter of the subject property:

The shape, dimension and area of property;

The location of all zoning use district boundary lines; and

The street numbers and assessor's lot numbers;

The general location, shape and use of all existing buildings and structures; and

Such other information as may be necessary for the execution and enforcement of this chapter.

(6)

The application fee as set by the city council to cover the costs associated with review, hearing, notice and recording fees.

Applications for special use permits to the planning board through the unified development review process shall follow relevant application requirements of the city's land development and subdivision regulations.

(Rev. Ords. 1987, § 19-41; Ch. 642, § II, 3-15-16; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-42. - Special use permits—Review process.#

(a)

Upon receipt of a special use permit application, in proper form, the zoning officer shall refer a copy to the department of planning and urban development in its capacity as staff to the planning board, for an advisory opinion. This department shall review the application and make a written report on its findings and recommendations as to whether or not the request is consistent with the purposes and intent of the city comprehensive plan and this chapter within 30 days of receipt of the application.

(b)

The zoning officer may refer a copy of the application to any other city departments, such as the public works department or fire department, for findings and recommendations on matters related to public safety, health and welfare.

(c)

The board shall fix a reasonable time not to exceed 30 days for a public hearing on a special use permit application. Notification including the date, time, place, purpose of the hearing, and street address of the subject property shall be:

(1)

Published at least 14 days prior to the date of such hearing in a newspaper of local circulation in the city;

(2)

Sent by first class mail to the applicant;

(3)

Sent first-class mail to all owners of real property whose property is located in or within 200 feet of the perimeter of the subject property, whether within the city or within an adjacent city or town; such notice shall be sent to the last known address of such owners as shown on the current real estate tax assessment records of the city or town in which the property is located;

(4)

Sent by first class mail to the city or town council of any city or town which is located in or within 200 feet of the boundary of the subject area;

(5)

Sent first class mail to the city or town council of any city or town 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, at or within 2,000 feet of the subject property, regardless of the municipal boundaries;

(6)

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 at or within 2,000 feet of the subject property, 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 inspector in the city a map survey which shall be kept as a public record, showing areas of surface water resources and/or watersheds and parcels of land at or within 2,000 feet thereof.

(7)

Posted in the city clerk's office and one other municipal building in the municipality and the municipality must make the notice accessible on the municipal home page of its website at least 14 days prior to the hearing.

(8)

The city shall make the notice accessible on the home page of the city's website at least 14 days prior to the hearing;

(9)

For notices sent by first class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing.

(d)

The cost of the newspaper and mailing notification shall be borne by the applicant.

(Rev. Ords. 1987, § 19-42; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-43. - Special use permits—Determination.#

(a)

Any party may appear at the hearing in person, or by agent or by attorney. The hearing held by the zoning board of review or planning board under unified development review is a public meeting and all decisions reached by the board shall be made and voted upon at a public meeting. The board shall hear all evidence on the special use permit request; and consider the written reports of city staff when reaching a decision on the findings required by section 19-39.

(b)

Decisions shall be recorded and filed in the office of the zoning board of review within 30 working days from the date when the decision was rendered, and shall be a public record.

(Rev. Ords. 1987, § 19-43; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-44. - Special use permits—General conditions.#

(a)

The zoning officer, acting in his capacity as clerk for the zoning board of review, shall be responsible for the recording with the city clerk in the land evidence records of the city, decisions on special use permits. The decision shall also be posted in a location visible to the public in the city hall for a period of 20 days following the recording of the decision.

(b)

Any special use permit granted by the zoning board of review or planning board under unified development review shall expire within six months from the date of its issuance, unless the applicant shall within that period exercise the right granted by the decision. The board may upon application within the six-month period and for good cause shown, extend the limitation for one additional six-month period. The application for an extension need not be advertised.

(c)

No application for a special use permit involving the same parcel and same request, which was denied or withdrawn with prejudice, may be resubmitted for a special use permit for a period of 18 months, unless the zoning board of review determines there is a substantial change of circumstances, which justifies a special use permit application.

(d)

If the board allows an amendment to an original application which changes the terms under which the application was advertised or which alters the basic facts upon which the application was presented, the amended application shall be readvertised and referred to the department of planning and urban development.

(e)

Any aggrieved party may appeal decisions of the zoning board of review or planning board under unified development review to the superior court for the county in accordance with subsection 19-38(b).

(f)

All work approved by the issuance of a special use permit shall be carried out only in conformity with the application and any conditions, modifications and restrictions set by the zoning board of review or planning board under unified development review. Minor changes must be approved by the zoning officer in consultation with the building inspector. Changes deemed to be major by the zoning officer or building inspector shall be resubmitted to the zoning board of review in the form of a new application. Any work carried out in violation of this provision shall be ordered halted and fully removed.

(Rev. Ords. 1987, § 19-44; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-45. - Variances—Findings required.#

(a)

In granting a variance, the zoning board of review, or the planning board under the unified development review process, shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings that:

(1)

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. 45-24-30(16).

(2)

Such hardship is not the result of any prior action of the applicant; and

(3)

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 city comprehensive plan upon which this chapter is based.

(b)

The zoning board of review, or the planning board under the unified development review process, 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 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, meaning that 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. The zoning board of review, or the planning board under the unified development review process, has the power to grant dimensional variances where the use is permitted by special use permit.

(c)

Modifications permitted by zoning officer. The zoning officer shall have authority to administratively approve modifications from the literal dimensional requirements of section 19-145 in the instance of the construction, alteration, or structural modification of a structure, except for the moving of lot lines, provided the deviation is no more than 25 percent. Within ten days of the 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 determinations:

(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 use substantially impaired;

(3)

The modification requested does not require a variance of a flood hazard requirement, unless the building is built in accordance with applicable regulations; and

(4)

The modification does violate any rules or regulations with respect to freshwater or coastal wetlands.

Upon an affirmative determination, in the case of a modification of five percent or less, the zoning officer shall have the authority to issue a permit approving the modification, without any public notice requirements. In the case of a modification of greater than five percent, 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 in a newspaper of local circulation within the city that the modification will be granted unless written objection is received within 14 days of the public notice. If written objection is received within 14 days, 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 standard procedures for such variances, including notice requirements provided for under this chapter. If no written objections are received within 14 days, the zoning officer shall grant the modification. The zoning officer may apply any special conditions to the permit as may, in the opinion of the office, be requested to conform to the intent and purposes of the zoning ordinance. The zoning officer shall keep public records of all requests for modifications, and of findings, determinations, and any objections received. Costs of any notice required under this subsection shall be borne by the applicant requesting the modification.

(d)

In granting a variance the zoning board of review may apply special conditions as provided for in section 19-13.

(Rev. Ords. 1987, § 19-45; Ch. 216, § I, 6-18-02; Ch. 470A, § III, 10-7-08; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-46. - Variances—Intent and eligibility.#

Any person, group, agency or corporation may apply for relief from the literal requirements of this chapter, which is not contrary to the public interest, in instances where owing to special conditions of the parcel, a strict application of this chapter results in unnecessary and undue hardship. Two types of variances are allowed: Dimensional variance and use variance. Both variance applications follow the same procedure, while the standards of findings differ as noted in section 19-45.

(Rev. Ords. 1987, § 19-46; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-47. - Variances—Application process.#

Applications for variances that are not part of the unified development review process shall be filed with the zoning officer acting in his capacity as clerk for the zoning board of review. When a request for a variance is submitted through the unified development review process, as part of a subdivision or land development project application, it shall be submitted to the administrative officer of the planning board. Fifteen complete copies of the application must be submitted. The application shall include: (1)

A completed variance form indicating the variance sought and the grounds for the variance;

(2)

(3)

A Class 1 surveyed site plan prepared by a land surveyor registered and licensed to practice in the State of Rhode Island. The site plan shall be drawn at a scale of one-inch equals 20 feet (or as appropriate one-inch equals 40 feet or one-inch equals 80 feet) showing the following for the subject property:

The shape, dimension and area of the subject property;

The location, size and use of all existing and proposed structures;

The zoning use district boundaries;

The street number and assessor's lot numbers;

Such other information as may be necessary for the execution and enforcement of this chapter.

(4)

Elevations for all buildings sides and floor plans shall be prepared by those permitted to do so by the Rhode Island General Laws.

(5)

An accurate radius map drawn at a scale of one-inch equals 100 feet (or as appropriate one-inch equals 50 feet or one-inch equals 40 feet) which includes:

A title block in the lower righthand corner showing names of the property owners; map, block, parcel of the subject property; date of plan and north arrow;

For all property within 200 feet of the perimeter of the subject property:

The shape, dimension and area of the property;

The location of all zoning use district boundary lines; and

The street numbers and assessor's lot numbers.

In the case of a dimensional variance, the general location, shape and use of all existing buildings and structures within a 100-foot radius of the subject property;

In the case of a use variance, the general location, shape and use of all existing buildings and structures in or within 200 feet of the subject property; and

Such other information as may be necessary for the execution and enforcement of this chapter.

(6)

The application fee as set by the city council, to cover the costs associated with review, hearing, notice and recording fees.

Applications for variances to the planning board through the unified development review process shall follow relevant application requirements of the city's land development and subdivision regulations.

(Rev. Ords. 1987, § 19-47; Ch. 642, § III, 3-15-16; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-48. - Variances—Review process.#

(a)

Upon receipt of a variance application, in proper form, the zoning officer shall refer a copy to the zoning board of review and the department of planning and urban development acting in its capacity as staff to the planning board. This department shall review the application and make a written report on its findings and recommendations as to whether or not the request is consistent with the purposes and intent of the city comprehensive plan and this chapter within 30 days of receipt of the application.

(b)

The zoning officer, or administrative officer for the planning board through the unified development review process, may refer a copy of the application to any other city departments, such as the public works department or fire department, for findings and recommendations on matters related to public health, safety and welfare.

(c)

The zoning board shall fix a reasonable time not to exceed 30 days for a public hearing on a variance application. Notification including the date, time, place, purpose of the hearing, and street address of the subject property shall be:

(1)

Published at least 14 days prior to the date of such hearing in a newspaper of local circulation in the city;

(2)

Sent by first class mail to the applicant;

(3)

Sent first class mail to all owners of real property whose property is located in or within 200 feet of the perimeter of the subject area, whether within the city or within an adjacent city or town; such notice shall be sent to the last known address of such owners as shown on the current real estate tax assessment records of the city or town in which the property is located;

(4)

Sent by first class mail to the city or town council of any city or town which is located in or within 200 feet of the perimeter of the subject area;

(5)

Sent by first class mail to the city or town council of any city or town 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, at or within 2,000 feet of the subject property, regardless of the municipal boundaries;

(6)

(7)

Posted in the city clerk's office and one other city building at least 14 days prior to the hearing;

(8)

The city shall make the notice accessible on the home page of the city's website at least 14 days prior to the hearing;

(9)

For notices sent by first class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing.

(d)

The cost of newspaper and mailing notification shall be borne by the applicant.

(Rev. Ords. 1987, § 19-48; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-49. - Variances—Determination.#

(a)

Any party may appear at the hearing in person, or by agent or by attorney. A hearing held by the zoning board of review or planning board is a public meeting and all decisions reached by the zoning board of review or planning board shall be made and voted upon at a public meeting. The board shall hear all evidence on the variance request, and consider the written reports of city staff when reaching a decision on the findings required by section 19-45.

(b)

Decisions shall be recorded and filed in the office of the zoning board of review within 30 working days from the date when the decision was rendered, and shall be a public record.

(Rev. Ords. 1987, § 19-49; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-50. - Variances—General conditions.#

(a)

The zoning officer, acting in his capacity as clerk for the zoning board of review, shall be responsible for the recording with the city clerk, in the land evidence records of the city, all decisions on variance applications. The decision shall also be posted in a location visible to the public in the city hall for a period of 20 days following the recording of the decision.

(b)

Any variance granted by the zoning board of review or planning board under unified development review shall expire within six months from the date of the issuance, unless the applicant shall within that period exercise the right granted by the decision. The board may upon application within the six-month period and for good cause shown, extend the limitation for one additional six-month period. The application for an extension need not be advertised.

(c)

No application for a variance involving the same parcel and same request, which was denied or withdrawn may be resubmitted for a variance for a period of 18 months, unless the zoning board of review determines there is a substantial change of circumstances, which justifies a variance application.

(d)

(e)

Any aggrieved party may appeal decisions of the zoning board of review or planning board under unified development review to the superior court for the county in accordance with subsection 19-38(b).

(f)

All work approved by the issuance of a variance shall be carried out only in conformity with the application and any conditions, modifications and restrictions set by the zoning board of review or planning board under unified development review. Minor changes must be approved by the zoning officer in consultation with the building inspector. Changes deemed to be major by the zoning officer or building inspector shall be resubmitted to the zoning board of review in the form of a new application. Any work carried out in violation of this provision shall be ordered halted and fully removed.

(g)

Granting of a variance does not eliminate the requirement to obtain a building permit. The applicant is responsible for obtaining a building permit through the department of public works, building inspection division.

(Rev. Ords. 1987, § 19-50; Ch. 53, § III, 2-3-99; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-51. - Appeal to zoning board of review—Intent and eligibility.#

An appeal to the zoning board of review from a decision of any other zoning enforcement agency or officer, except a permitting authority, which is appealed in accordance with section 19-55, may be taken by an aggrieved party. Such appeal shall be taken within 30 days of the recording of the decision by the zoning officer or agency.

(Rev. Ords. 1987, § 19-51; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-52. - Appeal application process.#

(a)

Application for an appeal from a decision of the zoning officer or any other zoning enforcement agency, shall be filed with the zoning officer acting in his capacity as clerk for the zoning board of review. The application shall include:

(1)

A completed appeal form indicating the grounds for the appeal.

(2)

An accurate radius map drawn at a scale of one-inch equals 100 feet (or as appropriate one-inch equals 50 feet or one-inch equals 40 feet) which includes the map, block, and parcel of all property in or within 200 feet of the perimeter of the subject property;

(3)

The names and addresses of all owners of property in or within 200 feet of the perimeter of the subject property, whether within the city or an adjacent city, and as shown on the current real estate tax assessment records of the city or town in which the property is located; and

(4)

The fee as set by the city council to cover costs associated with the review, hearing and notice to be paid by the applicant.

(b)

The officer or agency from whom 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.

(Rev. Ords. 1987, § 19-52; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-53. - Appeals—Stay of proceedings.#

An appeal shall stay all proceedings in furtherance of the action appealed from, unless the zoning officer 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.

(Rev. Ords. 1987, § 19-53; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-54. - Appeals—Review and determination.#

(a)

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 of interest. Notification including the date, time, place, purpose of the hearing, and street address of the subject property shall be sent by first-class mail to all owners of real property whose property is located in or within 200 feet of the perimeter of the subject area, whether within the city or an adjacent city or town. Such notice shall be sent to the last known address of such owners as shown on the current real estate tax assessment records of the city or town in which the property is located.

(b)

The zoning board of review shall make a decision within 65 days of the date the appeal was filed. Upon the hearing, any party may appear in person or by agent or by attorney.

(c)

In exercising its powers, the zoning board of review may, in conformity with the provisions of this chapter, reverse or affirm wholly or partly and may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the officer or agency from whom the appeal was taken; and may apply special conditions as provided for in section 19-13 of this chapter.

(d)

The zoning board of review 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 failure to vote. Decisions shall be recorded and filed in the office of the zoning board of review within 30 days from the date the decision was rendered, and shall be a public record. The decision shall also be posted in a location visible to the public in the city hall for a period of 20 days following the recording of the decision.

(e)

When an appeal results in a decision by the zoning board of review which overturns a decision of another zoning enforcement agency or the zoning officer, recorded in the city land evidence records, the zoning officer as clerk for the board shall record notice of the board's decision in the city land evidence records.

(Rev. Ords. 1987, § 19-54; Ch. 914, § I(Att.), 12-19-23; Ch. 944, § I(Att.), 9-2-25)

Sec. 19-55. - Appeals—General conditions.#

(a)

An appeal from a decision of the permitting authority may be taken by an aggrieved party to the superior court for the county, in accordance with subsection 19-38(b).

(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 willful misconduct.

(Rev. Ords. 1987, § 19-55; Ch. 914, § I(Att.), 12-19-23)

Sec. 19-55.1. - Unified development review.#

(a)

Unified development review established. There shall be unified development review for the issuance of variances and special use permits for properties undergoing review by land development project and/or subdivision review.

(b)

Public hearing. All land development project and/or subdivision applications, that include requests for variances and/or special-use permits submitted pursuant to this section, shall require a public hearing that meets the requirements of section 19-48.

(c)

In granting requests for dimensional and use variances, the planning board shall be bound to the requirements of section 19-45 relative to entering evidence into the record in satisfaction of the applicable standards.

(d)

In reviewing requests for special use permits, the planning board shall be bound to the conditions and procedures under which a special use permit may be issued, the criteria for the issuance of such permits, and shall be required to provide for the recording of findings of fact and written decisions pursuant to this division of the zoning ordinance.

(e)

Appeals. An appeal from any decision made pursuant to this section may be take pursuant to section 19-55 of this division.

(Ch. 914, § I(Att.), 12-19-23)