The Zoning Board of Review shall have the following powers and duties:
A.
The Board shall hear and decide appeals where it is alleged there is an error in any order, requirement, decision, or determination made by the Building/Zoning Official in the enforcement of this chapter. In exercising the above-mentioned powers the Board may, so long as such action is in conformity with the terms of this chapter, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made and to that end shall have the powers of the Building/Zoning Official from whom the appeal is taken. The concurring vote of three members shall be necessary to reverse any order, requirement, decision, or determination of the Building/Zoning Official.
B.
The Board shall hear and decide such appeal within 65 days of the date of the filing of the appeal. It shall publish notice of the hearing at least once prior to the date of such hearing in a newspaper of general circulation in the Town. The date of the first notice shall be at a minimum 14 days prior to the date of the hearing, shall give due notice to the applicant, abutting owners, and other parties in interest and shall hear and decide the appeal within a reasonable time. Any party may appear at the hearing in person, by agent, or by attorney.
A.
To hear and decide only such special use permits as the Board is specifically authorized to pass on by the terms of this chapter; to decide such questions as are involved in determining whether special use permits should be granted; to grant special use permits with such conditions and safeguards as are appropriate under this chapter; or to deny special use permits when not in harmony with the purpose and intent of this chapter. The Board, immediately upon receipt of an application for special use permit, may request that the Planning Board and/or staff report its findings and recommendations, including the statement on the general consistency of the application with the goals and purposes of the Comprehensive Plan for the Town. The findings and recommendations, in writing, shall be forwarded to the Zoning Board of Review within 30 days of receipt of the application from said Board.
B.
The Board shall fix a reasonable time for the hearing of a special use permit. It shall publish notice of the hearing at least once in a newspaper of local circulation in the Town a minimum of 14 days prior to the date of the hearing. Notice of hearing shall be sent by first-class mail to the applicant, and to all those who would require notice under R.I.G.L. § 45-24-53. Said notice shall also include the street address of the subject property. The cost of such notification shall be borne by the applicant. The same notice shall be posted in the town or 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. For any notice sent by first-class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing. The cost of the newspaper and mailing notification shall be borne by the applicant. The Board shall hear and decide on the application within a reasonable time. Any party may appear at the hearing in person, by agent, or by attorney.
C.
The quorum is four of five total members. The concurring vote of the majority of the quorum, which would be three members, shall be required to decide in favor of an applicant on any matter concerning a special use permit upon which it is required to pass under this chapter. In granting a special use permit, the Board may impose such additional safeguards and conditions on the proposed use as are deemed necessary in order to conform to these requirements. The Board shall make a written decision including findings of fact certifying compliance with the rules governing that special use permit. All zone and area regulations of the district in which the special use permit is sought shall apply to such uses except where specifically exempted or amended by the conditions under which the Board grants the special use permit. The disregarding of any such condition or safeguard shall be considered as a violation.
D.
All decisions and stipulations imposed by the Board in granting a special use permit shall be recorded in Town land evidence records. A copy of such shall be filed in the Building/Zoning Official's office.
E.
Any use which has been permitted by special use permit under the terms of this ordinance shall be considered a use by special use permit and shall require further action of the Board for any change in use. (See § 340-2.8.)
F.
To the extent a proposed land use is not specifically listed in § 340 Attachment 2, the property owner may submit a written request to the Zoning Board of Review 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 Board of Review will have 15 days to provide a written evaluation to the property owner. Upon such determination, the proposed use may be considered to be a use requiring a special use permit.
A.
An application for relief from the literal requirements of this zoning ordinance because of hardship may be made by any person, group, agency or corporation by filing with the Building/Zoning Official an application describing the request and supported by such data and evidence as may be required by the Zoning Board of Review or by the terms of this ordinance. There shall be only two categories of variance, a use variance or a dimensional variance.
B.
The Building/Zoning Official shall immediately transmit each such application received to the Zoning Board of Review and a copy of each application to the Planning Board and/or Planning Department.
C.
The Zoning Board of Review, immediately upon receipt of an application for a variance in the application of the literal terms of this chapter, may request that the Planning Board and/or staff report its findings and recommendations, including a statement on the general consistency of the application with the goals and purposes of the Comprehensive Plan for the Town in writing to said Zoning Board of Review within 30 days of receipt of the application from said Board. The Zoning Board shall hold a public hearing on any application for variance in an expeditious manner, after receipt, in proper form, of an application. The Zoning Board of Review shall publish notice of the hearing at least once prior to the date of such hearing in a newspaper of local circulation in the Town. The date of the first notice shall be at a minimum 14 days prior to the date of the hearing. Notice of hearing shall be sent by first-class mail to the applicant and to at least all those who would require notice under R.I.G.L. § 45-24-53. Said notice shall also include the street address of the subject property. The same notice shall be posted in the town or 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. For any notice sent by first-class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing. The cost of newspaper and mailing notification shall be borne by the applicant.
D.
Requests for dimensional and use variances and special use permits submitted under a unified development review provision of this zoning ordinance shall be submitted as part of the subdivision or land development application to the administrative officer of the Planning Board pursuant to R.I.G.L. § 45-24-46.4(a). All subdivision or land development applications submitted under the unified development review provisions of this zoning ordinance shall have a public hearing which shall meet the requirements of Article 9.8 of North Smithfield's Land Development and Subdivision Regulations and R.I.G.L. § 45-23-50.1(d).
E.
In granting a variance, the Zoning Board of Review or the Planning Board under unified development review, as appropriate, shall require that evidence to the satisfaction of the following standards is entered into the record of the proceedings:
(1)
That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area, and is not due to a physical or economic disability of the applicant, excepting those physical disabilities addressed in R.I.G.L. § 45-24-30(a)(16);
(2)
That the hardship is not the result of any prior action of the applicant; and
(3)
That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the zoning ordinance or the comprehensive plan upon which the ordinance is based.
F.
The Zoning Board of Review, or where unified development review is enabled, the Planning Board, shall in addition to the above standards, require that evidence is entered into the record of the proceedings 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 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
(2)
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, 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 are not grounds for relief. The Zoning Board of Review or the Planning Board in unified development review has the power to grant dimensional variances where the use is permitted by special use permit.
G.
All stipulations imposed by the Board in granting a variance permit shall be recorded in Town land evidence records. A copy of such shall be filed in the Building/Zoning Official's office.
A.
Modifications to dimensional requirements. The Zoning Officer is authorized to grant modification permits of up to and including 15% of any dimensional requirements of this chapter as follows:
(1)
Within 10 days of the receipt of a request for a modification the Zoning Enforcement Officer shall make a decision as to the suitability of the requested modification based on the following determinations:
(a)
The modification is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted;
(b)
If the modification is granted, neighboring property will neither be substantially injured nor its appropriate use substantially impaired;
(c)
The modification requested does not require a variance of a flood hazard requirement, unless the building is built in accordance with applicable regulations;
(d)
The modification requested does not violate any rules or regulations with respect to freshwater or coastal wetlands;
(e)
The modification does not include movement of lot lines.
(2)
Upon an affirmative determination, in the case of a modification of 5% or less, the Zoning Enforcement 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 5%, the Zoning Enforcement 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 or town that the modification will be granted unless written objection by anyone who is entitled to notice under this section is received within 14 days of the public notice. If written objection is received within 14 days, the request for modification shall be scheduled for the next available hearing before the Zoning Board of Review on application for a dimensional variance following the standard procedures for such variances including notice requirements provided for under § 340-5.2 of this chapter. If no written objections are received within 14 days the Zoning Enforcement Officer shall grant the modification.
(3)
Neighborhood character-based modifications ("NCBM"). The Zoning Enforcement Officer is authorized to grant NCBM on any parcel with a public water and sewer connection and for purposes of residential use from the literal dimensional requirements of the zoning ordinance in the instance of the construction, alteration, creation, or structural modification of a dwelling unit provided that:
(a)
Such modifications shall only be granted for dimensional relief from frontage, lot width, and lot depth, up to the average dimensions of the comparable existing built environment.
(b)
The average dimensions of the comparable existing built environment shall be calculated as follows:
(c)
Within 10 days of the receipt of a request for NCBM, the Zoning Enforcement Officer shall make a decision as to the suitability of the requested modification based on the following determinations:
[1]
The modification requested does not require a variance of a flood hazard requirement, unless the building is built in accordance with applicable regulations; and
[2]
The modification requested does not violate any rules or regulations with respect to freshwater or coastal wetlands; and
[3]
The NCBM does not violate any provisions regarding separation included in the state building or fire code.
Upon an affirmative determination in the case of an NCBM modification of equal to or less than 30% of the requirements of the zoning district, the Zoning Enforcement Officer shall have the authority to issue a permit approving the modification without any public notice requirements. In the case of an NCBM modification of greater than 30%, the Zoning Enforcement Officer shall notify, by first class mail, all property owners abutting the property which is the subject of the NCBM 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 Town that the modification will be granted unless written objection is received within 14 days of the public notice. If written objection is received from any party entitled to notice under this section 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 the standard procedures for such variances, including notice requirements provided for under this chapter. If no written objections are received within 14 days the Zoning Enforcement Officer shall grant the modification.
(4)
The Zoning Enforcement Officer may apply any special conditions to the permit as may, in the opinion of the Officer, be requested to conform to the intent and purposes of the zoning ordinance.
(5)
The Zoning Enforcement Officer shall keep public records of all requests for modifications, and of findings, determinations, special conditions, and any objections received.
(6)
Costs of any notice required under this subsection shall be borne by the applicant requesting the modification.
A special use permit or a variance from the provisions of this chapter shall expire 12 months from the date granted by the Zoning Board of Review unless the applicant exercises the permission granted or receives a building permit to do so and commences construction and diligently prosecutes the construction until completed.
Where the Zoning Board of Review denies a request for a special use permit, variance or otherwise rules against the applicant on other than procedural grounds, the Zoning Board of Review may not consider another application requesting any or all the same changes, except: