2022 -- H 6642

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LC003428

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO TOWNS AND CITIES -- SUBDIVISION OF LAND -- ZONING

ORDINANCES

     

     Introduced By: Representatives C Lima, McLaughlin, and McNamara

     Date Introduced: January 06, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 45-23-63 of the General Laws in Chapter 45-23 entitled "Subdivision

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of Land" is hereby amended to read as follows:

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     45-23-63. Procedure -- Meetings -- Votes -- Decisions and records.

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     (a) All records of the planning board proceedings and decisions shall be written and kept

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permanently available for public review. Completed applications for proposed land development

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and subdivisions projects under review by the planning board shall be available for public review.

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     (b) Participation in a planning board meeting or other proceedings by any party is not a

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cause for civil action or liability except for acts not in good faith, intentional misconduct, knowing

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violation of law, transactions where there is an improper personal benefit, or malicious, wanton, or

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willful misconduct.

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     (c) All final written comments to the planning board from the administrative officer,

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municipal departments, the technical review committee, state and federal agencies, and local

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commissions are part of the permanent record of the development application.

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     (d) Votes. All votes of the planning board shall be made part of the permanent record and

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show the members present and their votes. A decision by the planning board to approve any land

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development or subdivision application requires a vote for approval by a majority of the current

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planning board membership planning board members present at the time of the vote. A decision by

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the planning board to approve a variance or special-use permit pursuant to any adopted unified

 

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development review regulations requires a vote for approval by a majority of the planning board

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members that were present at the public hearing at which the request was heard.

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     (e) All written decisions of the planning board shall be recorded in the land evidence

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records within twenty (20) days after the planning board vote. A copy of the recorded decision shall

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be mailed within one business day of recording, by any method that provides confirmation of

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receipt, to the applicant and to any objector who has filed a written request for notice with the

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administrative officer.

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     SECTION 2. Sections 45-24-56 and 45-24-57 of the General Laws in Chapter 45-24

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entitled "Zoning Ordinances" are hereby amended to read as follows:

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     45-24-56. Administration -- Zoning board of review -- Establishment and procedures.

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     (a) A zoning ordinance adopted pursuant to this chapter shall provide for the creation of a

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zoning board of review and for the appointment of members, including alternate members, and for

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the organization of the board, as specified in the zoning ordinance, or, in cities and towns with

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home rule or legislative charters, as provided in the charter. A zoning ordinance may provide for

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remuneration to the zoning board of review members and for reimbursement for expenses incurred

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in the performance of official duties. A zoning board of review may engage legal, technical, or

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clerical assistance to aid in the discharge of its duties. The board shall establish written rules of

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procedure; a mailing address to which appeals and correspondence to the zoning board of review

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are sent; and an office where records and decisions are filed.

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     (b) The zoning board of review consists of five (5) members, each to hold office for the

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term of five (5) years; provided, that the original appointments are made for terms of one, two (2),

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three (3), four (4), and five (5) years, respectively. The zoning board of review also includes two

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(2) alternates to be designated as the first and second alternate members, their terms to be set by

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the ordinance, but not to exceed five (5) years. These alternate members shall sit and may actively

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participate in hearings. The first alternate shall vote if a member of the board is unable to serve at

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a hearing and the second shall vote if two (2) members of the board are unable to serve at a hearing.

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In the absence of the first alternate member, the second alternate member shall serve in the position

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of the first alternate. A minimum of four (4) members, which may include alternates, shall form a

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duly constituted quorum. No member or alternate may vote on any matter before the board unless

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they have attended all hearings concerning that matter. Where not provided for in the city or town

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charter, the zoning ordinance shall specify procedures for filling vacancies in unexpired terms of

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zoning board members, and for removal of members for due cause.

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     (c) Notwithstanding the provisions of subsection (b), the zoning board of review of the

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town of Jamestown consists of five (5) members, each to hold office for the term of five (5) years;

 

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provided, that the original appointments are made for terms of one, two (2), three (3), four (4) and

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five (5) years respectively. The zoning board of review of the town of Jamestown also includes

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three (3) alternates to be designated as the first, second, and third alternate members, their terms to

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be set by the ordinance, but not to exceed five (5) years. These alternate members shall sit and may

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actively participate in hearings. The first alternate shall vote if a member of the board is unable to

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serve at a hearing; the second shall vote if two (2) members of the board are unable to serve at a

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hearing; and the third shall vote if three (3) members of the board are unable to serve at a hearing.

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In the absence of the first alternate member, the second alternate member shall serve in the position

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of the first alternate. No member or alternate may vote on any matter before the board unless they

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have attended all hearings concerning that matter. Where not provided for in the town charter, the

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zoning ordinance shall specify procedures for filling vacancies in unexpired terms of zoning board

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members, and for removal of members for due cause.

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     (d) Members of zoning boards of review serving on the effective date of adoption of a

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zoning ordinance under this chapter are exempt from the provisions of this chapter respecting terms

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of originally appointed members until the expiration of their current terms.

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     (e) The chairperson, or in his or her absence, the acting chairperson, may administer oaths

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and compel the attendance of witnesses by the issuance of subpoenas.

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     (f) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review for the town of Little Compton shall consist of five (5) members, each to hold office for the

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term of five (5) years. The zoning board of review for the town of Little Compton shall also include

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three (3) alternates to be designated as the first, second and third alternate members, their terms to

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be set by the ordinance, but not to exceed five (5) years. These alternate members shall sit and may

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actively participate in the hearings. The first alternate shall vote if a member of the board is unable

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to serve at a hearing; the second shall vote if two (2) members of the board are unable to serve at a

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hearing; and the third shall vote if three (3) members of the board are unable to serve at a hearing.

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In the absence of the first alternate member, the second alternate member shall serve in the position

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of the first alternate. No member or alternate may vote on any matter before the board unless they

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have attended all hearings concerning that matter. Where not provided for in the town charter, the

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zoning ordinance shall specify procedures for filling vacancies in unexpired terms of zoning board

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members, and for removal of members for due cause.

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     (g) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review for the town of Charlestown shall consist of five (5) members, each to hold office for the

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term of five (5) years. The zoning board of review for the town of Charlestown shall also include

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three (3) alternates to be designated as the first, second, and third alternate members, their terms to

 

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be set by the ordinance, but not to exceed five (5) years. These alternate members shall sit and may

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actively participate in the hearings. The first alternate shall vote if a member of the board is unable

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to serve at a hearing; the second shall vote if two (2) members of the board are unable to serve at a

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hearing; and the third shall vote if three (3) members of the board are unable to serve at a hearing.

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In the absence of the first alternate member, the second alternate member shall serve in the position

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of the first alternate. No member or alternate may vote on any matter before the board unless they

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have attended all hearings concerning that matter. Where not provided for in the town charter, the

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zoning ordinance shall specify procedures for filling vacancies in unexpired terms of zoning board

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members, and for removal of members for due cause.

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     (h) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review for the town of Scituate shall consist of five (5) members, each to hold office for the term

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of five (5) years. The zoning board of review for the town of Scituate shall also include three (3)

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alternates to be designated as the first, second and third alternate members, their terms to be set by

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the ordinance, but not to exceed five (5) years. These alternate members shall sit and may actively

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participate in the hearings. The first alternate shall vote if a member of the board is unable to serve

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at a hearing; the second shall vote if two (2) members of the board are unable to serve at a hearing;

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and the third shall vote if three (3) members of the board are unable to serve at a hearing. In the

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absence of the first alternate member, the second alternate member shall serve in the position of

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the first alternate. No member or alternate may vote on any matter before the board unless they

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have attended all hearings concerning that matter. Where not provided for in the town charter, the

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zoning ordinance shall specify procedures for filling vacancies in unexpired terms of zoning board

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members, and for removal of members for due cause.

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     (i) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review of the town of Middletown shall consist of five (5) members, each to hold office for a term

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of five (5) years. The zoning board of review of the town of Middletown shall also include three

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(3) alternates to be designated as the first (1st), second (2nd) and third (3rd) alternate members,

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their terms to be set by ordinance but not to exceed (5) years. These alternate members shall sit and

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may actively participate in the hearing. The first alternate shall vote if a member of the board is

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unable to serve at the hearing; the second alternate shall vote if two (2) members of the board are

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unable to serve at the hearing; and the third alternate shall vote if three (3) members of the board

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are unable to serve at the hearing. In the absence of the first alternate member, the second alternate

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member shall serve in the position of the first alternate. No member or alternate may vote on any

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matter before the board unless they have attended all hearings concerning that matter. Where not

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provided for in the town charter the zoning ordinance shall specify procedures for filling vacancies

 

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in unexpired terms of zoning board members and for removal of members for due cause.

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     (j) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review of the city of Cranston shall consist of five (5) members, each to hold office for a term of

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five (5) years. The zoning board of review of the city of Cranston shall also include four (4)

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alternates to be designated as the first (1st), second (2nd), third (3rd), and fourth (4th), alternate

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members, to be appointed for a term of one year. These alternate members shall sit and may actively

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participate in all zoning hearings. The first alternate shall vote if a member of the board is unable

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to serve at the hearing; the second alternate shall vote if two (2) members of the board are unable

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to serve at the hearing; the third alternate shall vote if three (3) members of the board are unable to

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serve at the hearing; and the fourth alternate shall vote if four (4) members of the board are unable

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to serve at the hearing. In the absence of the first alternate member, the second alternate member

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shall serve in the position of the first alternate. No member or alternate may vote on any matter

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before the board unless they have attended all hearings concerning that matter. Where not provided

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for in the city charter, the zoning ordinance shall specify procedures for filling vacancies during

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the unexpired terms of zoning board members and for removal of members for due cause.

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     (k) Notwithstanding the provisions of subsection (b) of this section, the zoning board of

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review for the town of Barrington shall consist of five (5) members, each to hold office for a term

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of five (5) years. The zoning board of review for the town of Barrington shall also include three (3)

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alternates to be designated as the first, second, and third alternate members, their terms are to be

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set by ordinance but not to exceed five (5) years. These alternate members shall sit and may actively

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participate in the hearing. The first alternate member shall vote if a member of the board is unable

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to serve at the hearing; the second alternate shall vote if two (2) members of the board are unable

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to serve at the hearing; and the third alternate member shall vote if three (3) members of the board

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are unable to serve at the hearing. In the absence of the first alternate member, the second alternate

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member shall serve in the position of the first alternate. No member or alternate may vote on any

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matter before the board unless they have attended all the hearings concerning that matter. Where

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not provided for in the town charter, the zoning ordinance shall specify procedures for filling

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vacancies in unexpired terms of zoning board members, and for removal of members for due cause.

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     45-24-57. Administration -- Powers and duties of zoning board of review.

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     A zoning ordinance adopted pursuant to this chapter shall provide that the zoning board of

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review shall:

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     (1) Have the following powers and duties:

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     (i) To hear and decide appeals within sixty-five (65) days of the date of the filing of the

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appeal where it is alleged there is an error in any order, requirement, decision, or determination

 

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made by an administrative officer or agency in the enforcement or interpretation of this chapter, or

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of any ordinance adopted pursuant hereto;

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     (ii) To hear and decide appeals from a party aggrieved by a decision of an historic district

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commission, pursuant to §§ 45-24.1-7.1 and 45-24.1-7.2;

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     (iii) To hear and decide appeals where the zoning board of review is appointed as the board

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of appeals for airport zoning regulations, pursuant to § 1-3-19;

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     (iv) To authorize, upon application, in specific cases of hardship, variances in the

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application of the terms of the zoning ordinance, pursuant to § 45-24-41;

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     (v) To authorize, upon application, in specific cases, special-use permits, pursuant to § 45-

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24-42, where the zoning board of review is designated as a permit authority for special-use permits;

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     (vi) To refer matters to the planning board or commission, or to other boards or agencies

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of the city or town as the zoning board of review may deem appropriate, for findings and

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recommendations;

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     (vii) To provide for the issuance of conditional zoning approvals where a proposed

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application would otherwise be approved except that one or more state or federal agency approvals

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that are necessary are pending. A conditional zoning approval shall be revoked in the instance

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where any necessary state or federal agency approvals are not received within a specified time

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period; and

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     (viii) To determine, upon application, whether a claimed nonconforming use exists; and

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     (ix) To hear and decide other matters, according to the terms of the ordinance or other

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statutes, and upon which the board may be authorized to pass under the ordinance or other statutes;

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and

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     (2) Be required to vote as follows:

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     (i) Five (5) Four (4) active members, which may include alternates, are necessary to

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conduct a hearing. As soon as a conflict occurs for a member, that member shall recuse himself or

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herself, shall not sit as an active member, and shall take no part in the conduct of the hearing. Only

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A maximum of five (5) active members, which may include alternates, are entitled to vote on any

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issue;

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     (ii) The concurring vote of three (3) of the five (5) a majority of members of the zoning

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board of review sitting at a hearing are necessary to reverse any order, requirement, decision, or

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determination of any zoning administrative officer from whom an appeal was taken; and

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     (iii) The concurring vote of four (4) of the five (5) a majority of members of the zoning

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board of review sitting at a hearing is required to decide in favor of an applicant on any matter

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within the discretion of the board upon which it is required to pass under the ordinance, including

 

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variances and special-use permits.

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     SECTION 3. Section 45-53-5 of the General Laws in Chapter 45-53 entitled "Low and

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Moderate Income Housing" is hereby amended to read as follows:

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     45-53-5. Appeals to state housing appeals board -- Judicial review.

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     (a) Whenever an application filed under the provisions of § 45-53-4 is denied, or is granted

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with conditions and requirements that make the building or operation of the housing infeasible, the

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applicant has the right to appeal to the state housing appeals board established by § 45-53-7, for a

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review of the application. The appeal shall be taken within twenty (20) days after the date of the

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notice of the decision by the local review board by filing with the appeals board a statement of the

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prior proceedings and the reasons upon which the appeal is based.

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     (b) The appeals board shall immediately notify the local review board of the filing of the

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petition for review and the latter shall, within ten (10) days of the receipt of the notice, transmit a

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copy of its decision and the reasons for that decision to the appeals board.

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     (c) The appeal shall be heard by the appeals board within twenty (20) days after the receipt

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of the applicant's statement. Four (4) active members, which may include an alternate, are necessary

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to conduct a hearing on an appeal. A stenographic record of the proceedings shall be kept and the

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appeals board shall render a written decision and order, based upon a majority vote of members

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present and voting, stating its findings of fact, and its conclusions and the reasons for those

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conclusions, within thirty (30) days after the termination of the hearing, unless the time has been

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extended by mutual agreement between the appeals board and the applicant. The decision and order

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may be appealed in the superior court within twenty (20) days of the issuance of the decision. The

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review shall be conducted by the superior court without a jury. The court shall consider the record

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of the hearing before the state housing appeals board and, if it appears to the court that additional

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evidence is necessary for the proper disposition of the matter, it may allow any party to the appeal

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to present that evidence in open court, which evidence, along with the report, constitutes the record

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upon which the determination of the court is made.

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     (d) The court shall not substitute its judgment for that of the state housing appeals board as

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to the weight of the evidence on questions of fact. The court may affirm the decision of the state

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housing appeals board or remand the case for further proceedings, or may reverse or modify the

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decision if substantial rights of the appellant have been prejudiced because of findings, inferences,

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conclusions, or decisions which are:

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     (1) In violation of constitutional, statutory, or ordinance provisions;

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     (2) In excess of the authority granted to the state housing appeal board by statute or

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ordinance;

 

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     (3) Made upon unlawful procedure;

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     (4) Affected by other error of law;

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     (5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the

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whole record; or

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     (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

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exercise of discretion.

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     (e) Any appeal from the superior court to the supreme court pursuant to this section shall

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be by writ of certiorari.

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     SECTION 4. This act shall take effect on January 1, 2023, and shall be prospective only

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and not applicable to any current zoning or planning hearing or appeal.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES -- SUBDIVISION OF LAND -- ZONING

ORDINANCES

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     This act would provide that:

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     (1) Planning board votes for approval require a majority vote of the members present at the

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time of the vote; and

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     (2) A quorum of the zoning board of review would be four (4) members authorized to vote

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which may include alternate members.

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     This act would take effect on January 1, 2023, and would be prospective only and not

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applicable to any current zoning or planning hearing or appeal.

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