Town of Portsmouth, RI Article XVII Appeals to Superior Court

Section A Appeals to a decision of the Zoning Board of Review.

1. An aggrieved party may appeal a decision of the Zoning Board of Review to the Superior Court for Newport County by filing a complaint setting forth the reasons of appeal within twenty (20) days after the decision has been recorded and posted in the office of the Town Clerk. The decision shall be posted in a location visible to the public in the Town Hall for a period of twenty (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 thirty (30) days after being served with a copy of the complaint. When the complaint is filed by someone other than the original applicant or appellant, the original applicant or appellant and the members of the Zoning Board shall be made parties to the 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. If, before the date set for hearing in the Superior Court, an application is made to the court for leave to present additional evidence before the Zoning Board of Review and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for the failure to present it at the hearing before the Zoning Board of Review, the court may order that the additional evidence be taken before the Zoning Board of Review upon conditions determined by the court. The Zoning Board of Review may modify its findings and decision by reason of the additional evidence and shall file that evidence and any new findings or decisions with the Superior Court.

3. The court shall consider the record of the hearing before the Zoning Board of Review and, if it shall appear to the court that additional evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal to present the evidence in open court.

4. The court will 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:

a) In violation of constitutional, statutory, or ordinance provisions;

b) In excess of the authority granted to the Zoning Board of Review by statute or ordinance;

c) Made upon unlawful procedure;

d) Affected by other error of law;

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

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

Section B Judicial aid in enforcement.

The Supreme Court and the Superior Court, within their respective jurisdictions, or any justice of either of those courts in vacation, shall, upon due proceedings in the name of the Town, instituted by its Town Solicitor, have power to issue any extraordinary writ or to proceed according to the course of law or equity or both:

1. To restrain the erection, alteration, or use of any building, structure, sign, or land erected, altered, or used in violation of the provisions of this zoning ordinance, and to order its removal or abatement as a nuisance;

2. To compel compliance with the provisions of this zoning ordinance;

3. To order the removal by the property owner of any building, structure, sign, or improvement existing in violation of this zoning ordinance, and to authorize some official of the Town, in the default of the removal by the owner, to remove it at the expense of the owner;

4. To order the reimbursement for any work or materials which shall have been done or furnished by or at the cost of the Town;

5. To order restoration by the owner, where practicable; and/or

6. To issue fines and other penalties.

Section C Appeal of enactment of or amendment to zoning ordinance.

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

2. 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.

3. The court shall first consider whether the enactment or amendment of the zoning ordinance 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 the enactment or amendment which are not in conformance with the comprehensive plan. The court shall not revise the ordinance to conform with the comprehensive plan, but may suggest appropriate language as part of the court decision.

4. In the case of an aggrieved party, where the court has found that the enactment or amendment of the zoning ordinance 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 legislative body of the Town, with its findings that a taking has occurred, and order the Town to either provide just compensation or rescind the enactment or amendment within thirty (30) days.

5. 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 and to award compensation. Furthermore, the Superior Court shall retain jurisdiction to determine the amount of an award of compensation for any temporary taking, if that taking shall exist.

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