Town of Portsmouth, RI Article VI Non-Standard Development

Section A Substandard lots of record.

1. Applicability. For the purpose of this section a substandard lot of record lot is a lot which does not meet one (1) or more of the minimum dimensional requirements for size or frontage required in the zoning district in which it is located and which is a lot of record the dimensions of which have not been altered since its creation by a voluntary conveyance which rendered such lot more substandard and which was:

a) Approved by the Planning Board and duly recorded after August 3, 1959; or

b) Approved by the Zoning Board of Review and duly recorded after June 13, 1965; or

c) Certified by the Planning Board as "approval not required" and duly recorded after August 3, 1959; or

d) Created by a deed or plat duly recorded prior to August 3, 1959.

2. Continuance of a use on a substandard lot of record. Any legal use shall be permitted to continue in the manner and extent existing as of the effective date of enactment or amendment of this ordinance, subject to the provisions of this ordinance regarding discontinuance, destruction or demolition, change of use, and extension or alterations.

3. Single substandard lots of record.

a) A lot or parcel of land having a frontage or lot area that is less than required by Article IV. may be considered buildable for single family residential purposes regardless of the lot frontage or lot area.

Nothing in this section shall be construed as exempting single family substandard lots of record from complying with the maximum percentage of lot coverage of principal and accessory buildings, maximum height or building setback requirements of Article IV. Any lot meeting those requirements shall be considered as a conforming lot of record for single family residential purposes.

b) If a non residential structure can be extended or enlarged in any lawful manner without increasing the extent of its nonconformity, then any extension or enlargement thereof shall only be permitted in such lawful manner upon the granting of a special use permit by the Zoning Board of Review.

4. Dimensional variances on substandard lots of record. In appealing for dimensional variances to build a new or enlarge an existing structure on a substandard lot, in addition to the requirements for variances in Article VI. Section D., the Zoning Board of Review shall consider whether such variance:

a) Would allow adequate space for fire protection;

b) Provide adequate light and air between buildings;

c) Would alter the character of the neighborhood, or adversely affect neighboring property;

d) Would create lot coverage and setbacks less than the average lot coverage and setbacks of adjacent properties;

e) Would impose a substantial detriment to the public or to immediate neighbors.

Section B Nonconforming development.

1. A non-conforming use of land lawfully existing at the time of the passage of this Ordinance may be continued provided that such non-conforming use of land shall not in any way be expanded or enlarged, except as provided in this Section.

2. A building or structure which is devoted to a non-conforming use existing at the time of the passage of this Ordinance that is lawfully destroyed or involuntarily destroyed, such as by fire or natural catastrophe, shall be completely repaired or completely reconstructed within two (2) years, provided it is devoted to the same use as was made of it before such partial or total destruction, in order to maintain legal non-conforming status.

3. When a non-conforming use has been abandoned for more than one (1) year, the building or structure or land that was devoted to such non-conforming use shall not thereafter be returned to such non-conforming use. Abandonment of a nonconforming use shall consist of some overt act, or failure to act, which would lead one to believe that the owner of the nonconforming use neither claims nor retains any interest in continuing the nonconforming use unless the owner can demonstrate an intent not to abandon the use. An involuntary interruption of nonconforming use, such as by fire and natural catastrophe, does not establish the intent to abandon the nonconforming use. However, if any nonconforming use is halted for a period of one (1) year, the owner of the nonconforming use will be presumed to have abandoned the nonconforming use, unless that presumption is rebutted by the presentation of sufficient evidence of intent not to abandon the use.

4. A building or structure that exists as a non-conforming use at the time of passage of this Ordinance, may continue to function as a non-conforming use of the same type or any other use that is permitted by this Ordinance, or other such use may be added to the existing use within the confines of the existing building, with the approval of the Zoning Board of Review.

Section C Alteration of nonconforming development.

1. With Board of Review approval as a special use permit, a building or structure which is devoted to a non-conforming use lawfully existing at the time of the passage of this Ordinance may be added to or enlarged provided that the front, side and rear yards, lot coverage, height of such enlarged building or structure and parking requirements meet the zoning requirements of the district in which is located.

2. No lot area shall be so reduced or diminished that the yards or other open spaces or total lot area shall be smaller than prescribed by this Ordinance, unless the reduction in area is due to the taking of a portion of the lot for public use.

3. A legally non-conforming use shall not be changed to a use other than a conforming use. The Zoning Board of Review may permit a change in use as a special use permit. Any change in use shall be more in keeping with the characteristics of the neighborhood.

4. Any alteration or change in use permitted herein shall adhere more closely to the intents and purposes of this Ordinance.

Section D Variances.

1. An application for relief from the literal requirements of this zoning ordinance because of hardship may be made by an applicant by filing with the Zoning Enforcement Officer 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 ordinance. The Zoning Enforcement Officer shall immediately transmit each application received to the Zoning Board of Review and shall transmit a copy of each application to the Planning Board.

a) All appeals including appeals involving applications for variances shall be made on forms as provided by the rules of the Zoning Board of Review, and the written ruling or decision of the enforcement official together with all other papers, plans and data constituting the record of the case shall be transmitted to the Zoning Board of Review.

2. The Zoning Board of Review, immediately upon receipt of an application for a variance in the application of the literal terms of the zoning ordinance, 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 of the Town, in writing to the Zoning Board of Review within thirty (30) days of receipt of the application from that board.

3. The Zoning Board of Review shall hold a public hearing on any application for variance in an expeditious manner, after receipt, in proper form, of an application, and shall give public notice pursuant to the provisions of Article XIII.

4. A variance shall be defined as: Permission to depart from the literal requirements of a zoning ordinance. An authorization for the construction or maintenance of a building or structure, or for the establishment or maintenance of a use of land, which is prohibited by a zoning ordinance. There shall be only two (2) categories of variance, a use variance or a dimensional variance.

a) Use variance. Permission to depart from the use requirements of a zoning ordinance where the applicant for the requested variance has shown by evidence upon the record that the subject land or structure cannot yield any beneficial use if it is to conform to the provisions of the zoning ordinance.

b) Dimensional variance. Permission to depart from the dimensional requirements of a zoning ordinance, where the applicant for the requested relief has shown, by evidence upon the record, that there is no other reasonable alternative way to enjoy a legally permitted beneficial use of the subject property unless granted the requested relief from the dimensional regulations. However, 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.

5. 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:

a) 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, excepting those physical disabilities addressed in Section 45-24-30(a)(16) General Laws of Rhode Island (amended 2003-04-28);

b) 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;

c) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based; and

d) That the relief to be granted is the least relief necessary.

e) That any relief granted is in accordance with the definition of variance provided in this ordinance.

6. The Zoning Board of Review shall, in addition to the above standards, require that evidence be entered into the record of the proceedings showing that:

a) 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 the zoning ordinance. 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

b) In granting a dimensional variance, that the hardship suffered by the owner of the subject property if the dimensional variance is not granted amounts to more than a mere inconvenience, (amended 2003-04-28) 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.

7. Expiration. Any variance which is not utilized within a period of one (1) year from the date of the signing of the decision granting said variance shall be void unless, upon written request of the applicant and good cause shown, the Zoning Board of Review, following a public hearing thereon, grants an extension of not more than one (1) year. Not more than a single, one (1) year extension may be granted following any one (1) public hearing. The Board of Review shall not grant successive extensions which total more than two (2) years on any project, (excluding any extensions granted prior to enactment of this amendment).

[Amended 7-12-2002; 8-10-2004]

a) If written proof from the Portsmouth Water and Fire District is provided showing that the applicant is unable to secure a tie-in to the Portsmouth Water and Fire District's water supply, then the Zoning Board of Review shall grant an extension for a period of one (1) year, provided that the applicant demonstrates reasonable diligence in attempting to secure such tie-in.

b) In the event an application for extension is filed prior to the passage of one (1) year from date of authorization, or the end of any subsequent extension term thereof, the variance shall remain in force and effect until the Board of Review has acted on said application for extension.