Article VII Procedures

A petition requesting a change in the zoning designation of one or more parcels or the alteration of a zoning district boundary, shall at a minimum, require submission of the original petition and 20 copies of the following items:

A site plan prepared by, and signed and stamped by, a land use design professional, such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license, at a scale of not less than one inch equals 40 feet, clearly showing the following:

Name and address of property owner(s) and applicant(s);

Date, North arrow, graphic scale, affected lot(s) and area (square feet or acres);

Plat(s), lot(s) and 911 address(es);

Current zoning district boundaries and existing uses of all neighboring properties;

Proposed zoning district and boundaries of said district;

Existing and proposed structures, and their relationship and distances from lot lines and zoning district boundary lines;

FEMA flood hazard zone, wetlands and coastal features boundaries, if present;

Existing and proposed streets, driveways, parking areas and walkways;

Existing and proposed landscaping, as it relates to the request;

[10]

Existing and proposed wells, septic systems and public utilities;

[11]

Any peculiar site conditions or features; and

[12]

Topography as may be taken from United States Geological Survey 7.5 minute series maps.

List of names and addresses of all current property owners within 200 feet of subject property(ies) and/or all those property owners and entities which require notice under R.I.G.L. § 45-24-53, and in compliance with § 260-28D of the Zoning Ordinance;

Soil erosion and stormwater control plan with supporting calculations based on standards approved by the USDA Natural Resources Conservation Service and in conformity with the Rhode Island Erosion and Sediment Control Handbook;

Letter from a biologist indicating that there are no coastal or freshwater wetlands on or in proximity to the site. In cases where the application is regulated by the Rhode Island Freshwater Wetlands Act or the Rhode Island Coastal Resources Management Council ("CRMC"), a physical alteration permit issued by the Rhode Island Department of Environmental Management ("RIDEM") and, where applicable, the United States Army Corps of Engineers shall be required;

Where construction requires approval by RIDEM Office of Water Resources for an OWTS (on-site wastewater treatment system) or change of use permit for the proposed activity, attach a copy of the required application;

Traffic study prepared by a professional engineer addressing the potential impacts of the proposed activity; and

Evidence that there is sufficient water supply to support the proposed activity and that this supply is of drinking water quality.

A petition for amendment of the provisions of the Zoning Ordinance shall, at a minimum, require:

Name and address of applicant(s) and property owner(s);

Location of the lot(s) given as the street address, tax assessor's plat and lot number, and 911 address;

Zoning district the lot(s) is located in;

Proposed zoning district;

Affected area (square feet or acres);

The year that the lot was platted and recorded;

Present use of premises;

Description of existing structure(s) on premises (square feet);

Proposed use of premises;

(j)

Proposed structure(s) (height and square feet);

(k)

Whether preliminary development plans have been submitted to the Planning Board and Zoning Official;

(l)

Whether the owner or applicant has received a Notice of Violation for this or any property in the Town of Westerly and the status of that alleged violation. If a Notice of Violation was issued, a copy is to be attached to the application;

(m)

Identification of the section of the Zoning Ordinance under which this application is filed;

(n)

Written statement as to proposed use of the rezoned property (refer to §§ 260-17 and 260-18 of Westerly Zoning Ordinance);

(o)

Written statement as to the purpose of and need for the amendment, supported by relevant sections of Westerly's Comprehensive Plan; and

(p)

Written statement as to the consistency of the text amendment with the purposes of zoning as expressed in § 260-5 of the Westerly Zoning Ordinance.

Planning Board review and recommendation. The Planning Board shall give its advisory opinion to the Town Council within 45 days after receipt of the petition and at least five days prior to the Town Council's public hearing on the petition, giving its findings and recommendations. When a petition for ordinance adoption, amendment, or repeal is initiated by the Planning Board, the Planning Board's petition shall include the Board's findings and recommendations. The Planning Board's findings and recommendations shall include:

A statement regarding the consistency of the proposal with the Comprehensive Plan, including the goals and policy statements and the implementation program contained in the Comprehensive Plan; and

A statement regarding the conformance of the proposal to the general zoning purposes set forth in § 260-5.

Public hearing required. No part of this Zoning Ordinance (including the Zoning Map) shall be amended or repealed, and no new ordinance shall be adopted until after a public hearing has been held upon the petition before the Town Council. The Town Council shall hold a public hearing within 65 days of receipt of a petition, with notice as prescribed in Subsection D of this section. At the public hearing, all interested persons shall be given opportunity to be heard upon the matter of the proposed amendment or ordinance. All changes or additions to the proposals as advertised must be presented for comment in the course of the public hearing.

Notice. Notice of public hearing before the Town Council on a petition for amendment or repeal of this chapter or for adoption of a new ordinance shall be given. Notice shall be given as follows:

Notice for general amendment. Where a proposed general amendment to this Zoning Ordinance includes changes in the Zoning Map, public notice shall be given as set forth in Subsection D(7) below.

Notice for specific amendment. Where a proposed amendment to this chapter includes a specific change in the Zoning Map, but does not affect districts generally, public notice shall be given as set forth in Subsection D(7) below, with the following additional requirements:

Notice shall include a map showing the existing and proposed zoning district boundary lines, existing streets and roads and their names, and Town boundary lines within the zoning district as existing and as proposed; and

Written notice of the date, time and place of the public hearing and the nature and purpose thereof shall be sent by the applicant to all owners of real property whose property is located in or within 200 feet of the perimeter of the area proposed for change, whether within the Town or in or within an adjacent 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 either first-class mail, postage prepaid, or by certified mail return receipt requested at least 21 days prior to the date of hearing. Notice shall be sent to the last known address of such owners as shown on the Town's current real estate tax assessment records. Prior to the hearing, the applicant or its legal representative shall file with the Town Clerk a notarized affidavit that the notice provisions have been satisfied. 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.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

Notice to nearby towns. Written notice of public hearing shall be sent at least two weeks prior to hearing to the Town Council of any town to which one or more of the following pertain:

The town is located in or within 200 feet of the boundary of the area proposed for change; or

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 boundary lines.

Notice to water departments, agencies, companies. Written notice of public hearing shall be sent at least two weeks prior to hearing 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 Inspector 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.

(5)

Notification to farmers. Notification of matters subject to notification shall be given to farmers as required by Chapter 23.1 of Title 2 of the Rhode Island General Laws, as amended from time to time. The following officials are hereby designated to provide the notification required by Section 2-23.1-4 of the Rhode Island General Laws and to receive requests for work sessions in accordance with Section 2-23.1-6 of the Rhode Island General Laws:

[Added 5-14-2007 by Ch. No. 1602[1]]

Subject Matter	Responsible Town Official
Changes of the zoning and/or permitted uses of land used for farming	Town Planner
Designation or amendment of the designation of land used for farming in the Comprehensive Plan or land use ordinances	Town Planner
Changes in the manner of taxation of real and personal property used for farming	Town Assessor
Regulation of water use for farming purposes	Superintendent of Utilities
Control of noise and hours of operation of machinery and equipment used in farming	Town Clerk

Editor's Note: This chapter also renumbered former Subsections D(5) through D(8) and D(6) through D(9), respectively.

(6)

Written notice by mail shall be sent to the Associate Director of the Division of Planning of the Rhode Island Department of Administration at least two weeks prior to hearing.

(7)

Public notice procedure. Public notice shall be given by publication of notice in a newspaper of general circulation within Westerly at least once each week for three successive weeks prior to the date of the hearing, which may include the week in which the hearing is to be held. Such 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:

Specify the place of the hearing before the Town Council and the date and time of its commencement;

Indicate that amendment or repeal of this Zoning Ordinance (including the Zoning Map), or adoption of a new Zoning Ordinance is under consideration;

(c) Contain a statement of the proposed amendments to this chapter by printing them in their entirety, or by summarizing and describing them, as long as the intent and effect of the proposed regulation is expressly written in that notice;

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

State where and when a copy of the matter under consideration may be obtained or examined and copied;

State that the proposals shown thereon may be altered or amended prior to the close of public hearing without further notice; and

Include the map required by Subsection (D)(2)(a), when applicable.

Notwithstanding any of the requirements set forth in Subsection D(7)(a) through (f) above, each municipality shall establish and maintain a public notice registry allowing any person or entity to register for electronic notice of any changes to the Zoning Ordinance. The Town shall provide public notice annually of the existence of the electronic registry by publication of notice in a newspaper of general circulation within the Town. In addition, each municipality is hereby encouraged to provide public notice of the existence of the public notice registry in all of its current and future communications with the public, including, but not limited to, governmental websites, electronic newsletters, public bulletins, press releases and all other means the municipality may use to impart information to the local community. Provided, however, notice pursuant to a public notice registry as per this subsection does not alone qualify a person or entity on the public notice registry as an "aggrieved party" under RIGL 45-24-31(4).

[Added at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

(8)

Defects in notice. No defect in the form of any notice under this section shall render any ordinance or amendment invalid, unless the defect is found to be intentional or misleading.

(9)

Costs. Costs of any notice required under this section shall be borne by the applicant.

Disposition. The Town Council shall render a decision on any proposal within 45 days after the date of completion of the public hearing. The provisions of this section pertaining to deadlines shall not be construed to apply to any extension consented to by an applicant.

Conditions.

In granting a Zoning Ordinance amendment, the Town Council may limit the change to one of the uses permitted in the zone to which the subject land is rezoned, and may impose conditions and restrictions including, without limitation:

Conditions that the petitioner obtain a permit or approval from any and all state or local governmental agencies or instrumentality having jurisdiction over the land and use which are the subject of the zone change;

Conditions and restrictions relating to the effectiveness or continued effectiveness of the zoning change; and/or

Conditions and restrictions relating to the use of the land.

The Town Clerk shall cause the conditions and restrictions so imposed to be clearly noted on the Zoning Map and recorded in the land evidence records; provided, however, that in the case of a conditional zone change, the conditions and restrictions shall not be noted on the Zoning Map until the zone change has become effective.

Reversion. 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 public hearing, order that the land revert to its zone classification preceding the most recent zone change.

Standards for increase in zoning density. Notwithstanding the procedures set forth in this chapter, the Town Council shall not approve any Zoning Map amendments that would result in the reduction of required lot size in residential zones, except in the following circumstances:

[Added 7-19-2010 by Ch. No. 1719]

Land within the Urban Services Area (as identified in the 2010 Community Comprehensive Plan) which is already served by public water and public sewer; or

Land which is outside of both the Urban Services Area and also the Rhode Island Coastal Resources Management Council Salt Ponds Special Area Management Plan areas (identified in this Code as the Salt Pond Overlay District boundaries), which is currently zoned RR-60, which may be rezoned to LDR-40 provided that public water service is extended to that area.

Prohibition of expansion to the Highway Commercial Zone. Notwithstanding the procedures set forth in this chapter, the Town Council shall not approve any Zoning Map amendments providing for expansion of the land areas designated as the Highway Commercial Zoning District.

[Added 7-19-2010 by Ch. No. 1719]

§ 260-29 Zoning certificates.

Application. Application for a zoning certificate shall be submitted to the Zoning Official by a person or entity with an ownership interest in the property (or an agent thereof) on forms provided by the Zoning Official, together with the pertinent application fee.

Submittal requirements. The application shall be accompanied by the following:

A plot plan of the existing parcel showing the lot boundaries, minimum setback lines, the nature of the work to be performed, including off-street parking and buffers, if required, the location of new and existing construction, the distance of same from lot lines. Other than single-family and two-family residential uses and uses accessory thereto, said plot plan shall be prepared, signed and stamped by a professional engineer or professional land surveyor.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

All approvals or variances granted by the Planning Board or the Zoning Board of Review as required by this chapter, including any site development plans, architectural plans, and/or engineering plans pertinent to such approvals.

Review and disposition. Within 15 days of receiving a complete application, the Zoning Official shall determine whether the existing and/or proposed development has received all approvals and/or otherwise conforms to this chapter, and shall approve or deny the application accordingly in writing. If the application is denied, the writing shall state the reasons for the denial and shall inform the applicant that the disposition may be appealed to the Zoning Board of Review. A zoning certificate which is issued upon erroneous information provided by an applicant shall not bind the Town or any official thereof.

§ 260-30 Modifications.

(Reserved)[1]

Editor's Note: Former Subsection A, Dimensional modifications, was superseded 10-26-2020 by Ch. No. 1997. For current provisions see Subsection B of this section.

Dimensional modifications. Modifications of up to 25% of the dimensional requirements of this Zoning Ordinance pertaining only to structures, yard setbacks, or parking requirements may be authorized by the Zoning Official. A modification shall not permit moving of lot lines, the modification of height, minimum lot size, minimum lot frontage or maximum amount of impervious surface.

[Amended 10-26-2020 by Ch. No. 1997]

Application. Application for a dimensional modification shall be submitted to the Zoning Official by the owner of the property or the owner's agent on forms provided by the Zoning Official, together with the pertinent application fee.

[Amended 10-26-2020 by Ch. No. 1997]

The Zoning Official shall have the authority to waive submission of any portion of the application. The Zoning Official's decision to waive submission of any portion of the application, or to deny a request to waive any required submission, may be appealed in accord with Article VIII, Appeals, of the Zoning Ordinance.

Each application for a dimensional modification shall, at a minimum, require the following items be submitted:

The original application and two copies of a site plan prepared by, and signed and stamped by, a land use design professional, such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license, at a scale of not less than one inch equals 40 feet, clearly showing the following:

Name and address of property owner(s);

Date, North arrow, graphic scale, lot dimensions and area in square feet or acres;

Plat and lot, zoning district(s) and front, side and rear yard setbacks;

Existing and proposed structures, and their relationship and distances from lot boundary lines;

FEMA flood hazard zone, wetlands and coastal features boundaries, if present;

Existing and proposed driveways, parking areas and walkways;

Existing and proposed landscaping, as it relates to the request;

Existing streets, 911 address, wells, septic system; and

Any peculiar site conditions or features.

Three copies of a current list (show date) of all property owners directly abutting the subject property;

Each application form for a dimensional modification shall, at a minimum, require the following:

Name and address of applicant, property owner, and lessee;

Location of the lot given as the street address, tax assessor's plat and lot number, and 911 address;

Zoning district the lot is located in;

Dimensions of the lot, in feet, to include frontage, depth, and area;

Present and proposed use of the lot;

Identification of all structures on the lot, including their size in feet;

How long the current owner has owned the lot;

The year that the lot was platted and recorded;

(j)

Whether you have submitted plans related to this request to the Zoning Official;

(k)

Whether you have requested a permit related to this request and if so whether the permit has been refused. If the permit request was refused, a copy of the written denial is to be attached;

(l)

The number of families to reside on the lot;

(m)

A description of the proposed alterations;

(n)

Identification of the section of the Zoning Ordinance under which this application is filed;

(o)

A specific identification of the relief sought;

(p)

A specific statement of the grounds for which the relief is sought;

(q)

Identification of, and explanation for, the application submission(s) that the applicant seeks to have waived; and

(r)

The application is to be signed by the applicant or owner.

Review and disposition. Within 10 days of receipt of a request for dimensional modification, the Zoning Official shall make a decision as to the suitability of the requested modification based on the following determinations:

The modification requested is reasonably necessary for the full enjoyment of the permitted use;

If the modification is granted, neighboring property will neither be substantially injured nor its appropriate use substantially impaired;

The modification requested is in harmony with the purposes and intent of the Comprehensive Plan and this Zoning Ordinance;

The modification requested does not require variance of a flood hazard requirement; and

(5)

The modification requested does not result in a violation of the Building Code.

Notice. Upon determining that the modification is appropriate, the Zoning Official shall notify the applicant who shall thereafter send by both first-class mail, postage prepaid and by certified mail, return receipt requested, a notice to all property owners abutting the property which is subject of the modification request, and such notice shall indicate the street address of the subject property in such notice which shall also be published in a newspaper of general circulation within Westerly that such a modification will be granted unless written objection is received within 30 days of such public notice or written notice by mail, whichever is later in time. Such notice shall be sent to the last known mailing address as shown on the current real estate tax assessment records and if such address is different from the property address, also to said property address by first-class mail, postage prepaid. Applicant or its legal representative shall file with the Zoning Official a notarized affidavit that the notice provisions have been complied with. If written objection is received within the 30 days, the request for a modification shall be denied. In that case, the modification requested will be considered a request for variance which must be submitted to the Zoning Board of Review and reviewed in accordance with § 260-33. If no written objection is received within the 30 days, the Zoning Official shall grant the modification. Costs of any notice required under this subsection shall be borne by the applicant requesting the modification.

Conditions. The Zoning Official may apply such conditions to the modification as may, in the opinion of the Official, be required to conform to the intent and purposes of this Zoning Ordinance.

[Amended at time of adoption of Code (see Ch. 1, General Provisions, Art. I)]

Records/recording. The Zoning Official shall keep public records of all requests for modification, and of findings, determinations, special conditions, and any objections received and shall also record the decision evidencing the granting of any modification with the land records of the Town.

§ 260-31 Vested rights.

Vested rights. An applicant shall have a vested right to have a development application reviewed and approved in accordance with the provisions of the Zoning Ordinance in effect at the time that the application for development was submitted if the application meets all of the submittal requirements of the Zoning Ordinance under which it was submitted or was accepted as substantially complete by the Board to which it was submitted.

Time limits for development. The vested rights created by this section shall terminate unless construction of the project shall begin within nine months of the date of final approval and shall be substantially completed within two years of the commencement date of construction; provided, however, that these time periods shall not include time taken for the issuance of required state permits or approvals when evidence exists demonstrating that applications for such permits and/or approvals have been timely made and are pending.

§ 260-32 Nonconformance.

Continuance of nonconformance. Any structure or the use of any structure or land which structure or use was lawful at the date of enactment of this Zoning Ordinance and which is nonconforming under the provisions of this Zoning Ordinance, or which will be made nonconforming by any subsequent amendment, may be continued subject to the following provisions.

[Amended 10-26-2020 by Ch. No. 1997]

Nonconforming uses. Nonconforming uses of land, a building or a structure, are governed by the following:

[Amended 10-26-2020 by Ch. No. 1997]

Repairs and alterations. A building or structure devoted to a nonconforming use may be repaired, maintained or improved, provided that the number of square feet of floor area devoted to the nonconforming use is not increased.

Change in use. A nonconforming use may be changed only by special use permit, provided that such change shall more closely adhere to the intent and purposes of the Zoning Ordinance as provided in R.I.G.L. 45-24-40 entitled, "General Provisions - Alteration of Nonconforming Development". A nonconforming use may not be changed to a more intensive nonconforming use.

Abandonment.

If a nonconforming use is abandoned, all subsequent uses of a building or property shall conform to the provisions of this Zoning Ordinance. Abandonment of a nonconforming use shall consist of some overt act, or failure to act, which evidences the owner's lack of intent to continue the nonconforming use and is not refuted by any demonstration on the part of the owner of an intent not to abandon the use. An involuntary interruption of nonconforming use, as by fire, flood or natural catastrophe, does not establish the intent to abandon the nonconforming use, if the use of land, a building, or a structure is reestablished within one year of the event. If any nonconforming use ceases for a period of one year or more, the owner will be presumed to have abandoned the nonconforming use unless such presumption is rebutted by substantial evidence of intent not to abandon the use.

In discussing if a preexisting nonconforming use has been abandoned, the Zoning Official, and Zoning Board when necessary, may consider the following:

Voluntary demolition of the building or structure;

Removal from the site, building or structure of fixtures, equipment, machinery or inventory necessary for the continuation of the use;

Failure to maintain the land, building, structure or sign in habitable, usable or safe condition;

A change in the use of the building, structure, or land to another use;

The voluntary interruption of a nonconforming use of any parcel of land, or portion thereof;

Failure to apply for or lapse of any permits, licenses or certifications required for continuation of the use, or failure to appeal any denial of any such permit, license or certification within 12 months of any such lapse or denial.

Dimensional nonconformance of structures. All buildings or other structures which are nonconforming by dimension are governed by the following:

[Amended 5-9-2005 by Ch. No. 1538; 10-26-2020 by Ch. No. 1997]

Expansion. A structure which does not conform to the dimensional standards of this Zoning Ordinance may not be expanded, enlarged, or increased, including vertically, in any way that would increase the nonconformance of the structure without first obtaining a variance, except where the building footprint and the building envelope of such addition or enlargement itself conforms to all of the dimensional regulations of the zone in which the building or structure is located, in which case an owner/applicant does not need to apply for a variance.

Destruction or demolition. A nonconforming structure which is destroyed or damaged by any means which is beyond the control of the owner shall be rebuilt or restored within one year, or thereafter conform to the dimensional provisions of this Zoning Ordinance. If a nonconforming building or structure is demolished or removed by or for its owner, it shall not be rebuilt or replaced except in conformity with the dimensional requirements of this Zoning Ordinance.

Use of nonconforming structure. Notwithstanding any dimensional requirements of this Zoning Ordinance, a nonconforming structure may be used for any use allowed in the zoning district where it is located unless the regulations regarding the use contain specific dimensional requirements peculiar to the use which cannot be met in the existing structure or on the existing lot.

Vertical addition.

A structure which does not conform to the dimensional standards of this Zoning Ordinance may be expanded vertically in accord with the procedure and standards for a dimensional modification under § 260-30, without regard to any limitations in § 260-30, if it also meets the following criteria:

The structure's dimensional nonconformity is not expanded, enlarged or increased by the addition.

The addition is vertical only.

The expansion is for a permissible use within the zone.

The addition conforms to the height restrictions within the zone.

The application shall include a site plan and survey showing the structures on the subject lot as well as each abutting lot, which site plan and survey shall be stamped and dated by a land use design professional, such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license.

Extension or addition to a nonconforming use. A legal nonconforming use shall be extended or added to only by special use permit; such expansion shall not exceed 25% of the floor space or area use of the use at the time the passage of this subsection or any predecessor ordinance first made the use nonconforming. A nonconforming use shall not be expanded onto land other than the zoning lot on which it exists at the time of passage of this subsection. Expansion of a nonconforming structure shall conform to the dimensional regulations of the zoning district in which it exists. Where a use already in existence at the time of passage of this subsection is, under the chapter, only permitted by special use permit, the use shall be considered nonconforming and a special use permit shall be required for any extension or addition to the same.

[Added 5-9-2005 by Ch. No. 1538[1]]

Editor's Note: This chapter also redesignated existing Subsections D through F as E through G, respectively.

Nonconforming lots of record. Nonconforming lots of record shall be governed by the following:

Protection. A nonconforming lot of record, lawfully created in accordance with the Zoning Ordinance in effect at the time of the deed or plat creating the lot, or lawfully created by deed or plat prior to the enactment of any Zoning Ordinance, and not made more nonconforming since by any voluntary conveyance, may be built upon so long as dimensional requirements other than minimum lot size and minimum frontage requirements are met.

Merger. If two or more undeveloped contiguous lots of record are in single ownership at the time of adoption or amendment of this Zoning Ordinance, or at any time thereafter, and if all or part of the lots do not meet the minimum lot size or frontage requirement of this Zoning Ordinance, the lands involved shall be considered to be a single parcel for the purposes of this Zoning Ordinance, and no portion of said parcel shall be built upon which does not meet the minimum lot size and frontage requirements of this Zoning Ordinance; nor shall any division of the parcel be made which creates any dimension or area less than the requirements of this Zoning Ordinance. Notwithstanding the foregoing, this provision shall not apply to lots within an approved subdivision which meet the minimum dimensional and area requirements of the least restrictive zoning district under this chapter.

Variances and special permit uses not deemed nonconformances. The provisions of this section regarding nonconformances shall not be applicable to uses established by variance or special use permit.

Nuisances not deemed nonconformances. No use which constitutes a nuisance as defined in this chapter shall be treated as a nonconformance, and no use shall be deemed to be exempt from the standards and requirements set forth in § 260-93.

§ 260-33 Variances.

[Amended 5-15-2000 by Ch. No. 1300; 2-10-2003 by Ch. No. 1432; 9-21-2020 by Ch. No. 1995; 10-26-2020 by Ch. No. 1997]

Application.

An application for relief from the literal requirements of a Zoning Ordinance because of hardship may be made by any person, group, agency or corporation with a legal interest in the land to which it applies by filing in the office of the Zoning Official an application describing the request, together with the pertinent application fee.

The form and such data and/or evidence which comprise such an application shall be as set forth in forms provided by the Zoning Official.

Each application for a variance shall, at a minimum, require the following items be submitted:

The original application and 10 copies of a site plan prepared by and signed and stamped by a land use design professional, such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license, at a scale of not less than one inch equals 40 feet, clearly showing the following:

[a]

Name and address of property owner(s);

[b]

Date, North arrow, graphic scale, lot dimensions and area in square feet or acres;

[c]

Plat and lot, zoning district(s) and front, side and rear yard setbacks;

[d]

Existing and proposed structures, and their relationship and distances from lot boundary lines;

[e]

FEMA flood hazard zone, wetlands and coastal features boundaries, if present;

[f]

Existing and proposed topography at two-foot intervals;

[g]

Existing and proposed driveways, parking areas and walkways;

[h]

Existing and proposed landscaping, as it relates to the request;

[i]

Existing streets, 911 address, wells, septic system; and

[j]

Any peculiar site conditions or features.

List of names and addresses of all property owners within 200 feet of the subject property, and 10 copies of a separate map showing all property owners within 200 feet of the subject property and/or all those property owners and entities that require notice under R.I.G.L. § 45-24-53, also depicting any zone district boundary and uses of all neighboring properties;

Soil erosion and stormwater control plan with supporting calculation based on standards approved by the USDA Natural Resources Conservation Service and in conformity with the Rhode Island Erosion and Sediment Control Handbook;

Traffic study prepared by a professional engineer addressing the potential impacts of the proposed activity; and

Evidence that there is sufficient water supply to support the proposed activity and that this supply is of drinking water quality.

Each application form for a variance shall, at a minimum, require the following:

Name and address of applicant, property owner, and lessee;

Location of the lot given as the street address, tax assessor's plat and lot number, and 911 address;

Zoning district the lot is located in;

Dimensions of the lot, in feet, to include frontage, depth, and area;

Present and proposed use of the lot;

Identification of all structures on the lot, including their size in feet;

How long the current owner has owned the lot;

The year that the lot was platted and recorded;

[10]

Whether you have submitted plans related to this request to the Zoning Official;

[11]

Whether you have requested a permit related to this request and if so whether the permit has been refused. If the permit request was refused, a copy of the written denial is to be attached;

[12]

The number of families to reside on the lot;

[13]

A description of the proposed alterations;

[14]

Identification of the section of the Zoning Ordinance under which this application is filed;

[15]

A specific identification of the relief sought;

[16]

A specific statement of the grounds for which the relief is sought;

[17]

Identification of, and explanation for, the application submission(s) that the applicant seeks to have waived;

[18]

The application is to be signed by the applicant or owner.

Upon receipt of a completed application and all required submissions, the Zoning Official shall:

Transmit a copy to the Zoning Board and Town Planner;

Order the matter for advertisement in accord with the Rhode Island General Laws and Zoning Ordinance for the next practicable meeting of the Zoning Board; and

Notify the applicant that the application has been determined complete and the date it is scheduled to be heard by the Zoning Board.

The Zoning Board shall have the authority to require additional materials reasonably related to its analysis of the application.

Planning Board recommendations. The Zoning Board and/or Zoning Official may request that the Planning Board and/or Town Planner report its findings and recommendations, including a statement on the general consistency of the application with the goals and policies of the Comprehensive Plan of the Town of Westerly. The Planning Board or Town Planner's recommendation shall be in writing and submitted within 30 days of receipt of the request.

Notice and hearing. The Zoning Board shall hold a public hearing on any application for variance in an expeditious manner after receipt in proper form of a complete application, and shall give public notice thereof of at least 14 days prior to the date of the hearing in a newspaper of general circulation in the Town. Notice of hearing shall be sent by the applicant by first-class mail, postage prepaid, to all owners of real property or other entities which would require notice under R.I.G.L. 45-24-53 at least 14 days prior to the date of the hearing. Notice shall be sent to the last known mailing address as shown on the current real estate tax assessment records, and if such address is different from the property address, also to said property address by first-class mail, postage prepaid. Said notice shall include the street address of the property for which the variance is sought. Prior to the hearing, the applicant or its legal representative shall file with the Board a notarized affidavit that the notice provisions have been satisfied. The cost of notification shall be borne by the applicant.

In granting a variance, the Zoning Board shall require that evidence satisfying the following standards be entered into the record of the proceedings:

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;

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;

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 this chapter is based; and

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

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

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

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 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.

Expiration of variance approval. Any variance granted under the provisions of this chapter shall become void unless the work authorized by said variance shall have commenced nine months after the granting of the variance by the Zoning Board of Review and shall be substantially complete within two years of the commencement of the date of construction; provided, further, that such variance shall be void if the work authorized by said variance is suspended or abandoned for a period of six months after the time such work was commenced. Said nine-month period shall not include time taken for the issuance of required state permits or approvals when evidence exists demonstrating that applications for such permits and/or approvals have been timely made and are pending.

Unless otherwise stated in this chapter, the Zoning Board of Review may issue a dimensional variance in conjunction with a special use permit. If the special use could not exist without the dimensional variance, the Zoning Board 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 standards.

§ 260-34 Special use permits.

[Amended 5-15-2000 by Ch. No. 1300; 10-26-2020 by Ch. No. 1997]

Application.

An application for a special use permit may be made by any person, group, agency or corporation with a legal interest in the land to which it applies by filing in the office of the Zoning Official an application describing the request, together with the pertinent application fee.

The form and such data and/or evidence which comprise such an application shall be as set forth in forms provided by the Zoning Official.

Each application for a special use permit shall, at a minimum, require the following items be submitted:

The original application and 10 copies of a site plan prepared by, and signed and stamped by, a land use design professional such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license, at a scale of not less than one inch equals 40 feet, clearly showing the following:

[a]

Name and address of property owner(s);

[b]

Date, North arrow, graphic scale, lot dimensions and area in square feet or acres;

[c]

Plat and lot, zoning district(s) and front, side and rear yard setbacks;

[d]

Existing and proposed structures, and their relationship and distances from lot boundary lines;

[e]

FEMA flood hazard zone, wetlands and coastal features boundaries, if present;

[f]

Existing and proposed topography at two-foot intervals;

[g]

Existing and proposed driveways, parking areas and walkways;

[h]

Existing and proposed landscaping, as it relates to the request;

[i]

Existing streets, 911 address, wells, septic system; and

[j]

Any peculiar site conditions or features.

Traffic study prepared by a professional engineer addressing the potential impacts of the proposed activity; and

Evidence that there is sufficient water supply to support the proposed activity and that this supply is of drinking water quality.

Each application form for a special use permit shall, at a minimum, require the following:

Name and address of applicant, property owner, and lessee;

Location of the lot given as the street address, tax assessor's plat and lot number, and 911 address;

Zoning district the lot is located in;

Dimensions of the lot, in feet, to include frontage, depth, and area;

Present and proposed use of the lot;

Identification of all structures on the lot including their size in feet;

How long the current owner has owned the lot;

The year that the lot was platted and recorded;

[10]

Whether you have submitted plans related to this request to the Zoning Official;

[11]

Whether you have requested a permit related to this request and if so whether the permit has been refused. If the permit request was refused, a copy of the written denial is to be attached;

[12]

The number of families to reside on the lot;

[13]

Identification of the section of the Zoning Ordinance under which this application is filed;

[14]

A specific identification of the relief sought;

[15]

A specific statement of the grounds for which the relief is sought;

[16]

Identification of, and explanation for, the application submission(s) that the applicant seeks to have waived;

[17]

The application is to be signed by the applicant or owner.

Upon receipt of a completed application and all required submissions, the Zoning Official shall:

Transmit a copy to the Zoning Board and Town Planner;

Order the matter for advertisement in accord with the Rhode Island General Laws and Zoning Ordinance for the next practicable meeting of the Zoning Board; and

Notify the applicant that the application has been determined complete and the date it is scheduled to be heard by the Zoning Board.

The Zoning Board shall have the authority to require additional materials reasonably related to its analysis of the application.

Planning Board recommendations. The Zoning Board and/or Zoning Official may request that the Planning Board and/or Town Planner report its findings and recommendations on the special use permit, including a statement on the general consistency of the application with the goals and policies of the Comprehensive Plan of the Town. The Planning Board or Town Planner's recommendation shall be in writing and submitted within 30 days of receipt of the request.

Notice and hearing. The Zoning Board shall hold a public hearing on any application for a special use permit in an expeditious manner after receipt in proper form of a complete application, and shall give public notice thereof of at least 14 days prior to the date of the hearing in a newspaper of general circulation in the Town. Notice of hearing shall be sent by the applicant by first-class mail, postage prepaid, to all owners of real property and to all who would require notice under R.I.G.L. 45-24-53, at least 14 days prior to the date of the hearing. Notice shall be sent to the last known mailing address as shown on the current real estate tax assessment records, and if such address is different from the property address, also to said property address by first-class mail, postage prepaid. Said notice shall include the street address of the property for which the special use permit is sought. Prior to the hearing, the applicant or its legal representative shall file with the Board a notarized affidavit that the notice provisions have been satisfied. The cost of notification shall be borne by the applicant.

In granting a special use permit, the Zoning Board shall be satisfied by legally competent evidence that the proposed use and/or structure:

Will be compatible with the neighboring uses and will not adversely affect the surrounding neighbors' use and enjoyment of their property.

That the special use meets all of the criteria set forth in the applicable subsection of this chapter authorizing such special use;

That the granting of the special use permit will not alter the general character of the surrounding area or impair the intent or purpose of this chapter or the Comprehensive Plan of the Town. In so doing, the Board shall consider, whether satisfactory provisions and arrangements have been or will be made concerning, but not limited to, the following matters, where applicable:

Ingress and egress to the lot and to existing or proposed structures thereon, traffic flow and control, and access in case of fire, emergency or catastrophe;

Off-street parking and loading areas, pedestrian and bicycle circulation and convenience;

The noise, glare or odor effects of the special use on adjoining lots;

Location and maintenance of trash, storage and delivery areas;

Utilities, with reference to locations, availability and compatibility;

Screening and buffering with reference to type, dimensions and character;

Signs, if any, and exterior lighting with reference to glare, traffic safety, and compatibility and harmony with lots in the zoning district;

Required yards, landscape and other open space;

Soil erosion, water supply protection, and wetland and wildlife protection have been addressed;

(j)

General compatibility with lots in the same or abutting zoning districts; and

(k)

Protection of property values.

That all best practices and procedures to minimize the possibility of any adverse effects on neighboring property, the Town, and the environment have been considered and will be employed.

§ 260-35 Special conditions.

Special conditions authorized. In making any determination upon which it is required to pass after public hearing under this chapter, the Planning Board and the Zoning Board of Review may apply such special conditions that may, in the opinion of the pertinent Board, be required to promote the intent and purposes of the Comprehensive Plan and this chapter. Failure to abide by any special conditions attached to a variance, special permit, or development plan approval shall constitute a zoning violation. Special conditions shall be based on competent credible evidence on the record and be incorporated into the written decision.

Special conditions may include but are not limited to provisions for:

Minimizing adverse impact of the development upon other land, including the type, intensity, design, and performance of activities;

Controlling the sequence of development, including deadlines for commencement and completion;

Controlling the duration of use or development and the time within which any temporary structure must be removed;

Assuring satisfactory installation and maintenance of required public improvements, which shall be constructed in accordance with the accepted standards and specifications of the Town and may include the following:

Right-of-way improvements to include pavement widening, curb, gutter, sidewalks and street lights;

Adequate sewage collection and disposal facilities including the provision of manholes or the construction or upgrading of pump stations;

An adequate water supply and distribution system for both fire protection (including hydrants) and potable purposes;

Improvements to traffic flow and circulation, to include turn and bypass lanes, signalization, pavement markings, and other traffic control measures;

Drainage improvements for the disposition of storm or natural waters to avoid a detrimental impact on the property of others or the public right-of-way;

Screening, fences, walls or berms where required by other sections of this chapter;

Driveways and entrances to streets for both pedestrian and vehicular access;

Temporary or permanent erosion and sediment control measures; and

§ 260-36 Notice of decision to applicant; recording in land records.

Easements for the purpose of adequate ingress/egress or the provision of public utilities such as water and sewer.

(5)

Designating the exact location and nature of development; and

(6)

Establishing detailed records by submission of drawings, maps, plats, or specifications.

Any decision by the Zoning Board including any special conditions attached thereto shall be mailed to the applicant and in addition any decision evidencing the granting of a variance or special use permit shall be recorded with the land records of the Town.

§ 260-37 Preapplication conference.

Preapplication conferences authorized. The applicant or their agent is encouraged to conduct a preapplication conference with the Planning Board, the Zoning Board of Review and/or Town Council (individually or collectively) for purposes of previewing development proposals prior to submission of applications for development plan review and /or special use permit and/or Zoning Ordinance amendments. A preapplication conference is intended to allow the following:

Acquaint the applicant with the Comprehensive Plan, this chapter and any other regulation or ordinance that may be applicable to the proposed project;

Suggest improvements to the proposed design on the basis of review of sketch plans;

Advise the applicant to consult appropriate authorities regarding the character and placement of public utility services; and