2022 -- S 2623

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LC004360

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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 -- ZONING ORDINANCES -- ACCESSORY

APARTMENTS

     Introduced By: Senators Kallman, Lombardo, Quezada, Mack, and Burke

     Date Introduced: March 10, 2022

     Referred To: Senate Housing & Municipal Government

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 45-24-31 and 45-24-37 of the General Laws in Chapter 45-24

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

     45-24-31. Definitions.

     Where words or terms used in this chapter are defined in § 45-22.2-4 or 45-23-32, they

have the meanings stated in that section. In addition, the following words have the following

meanings. Additional words and phrases may be used in developing local ordinances under this

chapter; however, the words and phrases defined in this section are controlling in all local

ordinances created under this chapter:

     (1) Abutter. One whose property abuts, that is, adjoins at a border, boundary, or point with

no intervening land.

     (2) Accessory dwelling unit Accessory apartment. A dwelling unit: (i) Rented to and

occupied either by one or more members of the family of the occupant or occupants of the principal

residence persons; or (ii) Reserved for rental occupancy by a person or a family where the principal

residence is owner occupied and that meets the following provisions:

     (A) In zoning districts that allow residential uses, no more than one accessory dwelling unit

apartment may be an accessory to a single-family dwelling.

     (B) An accessory dwelling unit apartment shall include separate cooking and sanitary

facilities, with its own legal means of ingress and egress, and is a complete, separate dwelling unit

apartment. The accessory dwelling unit shall be within, or attached to, the principal dwelling-unit

structure or within an existing structure, such as a garage or barn, and designed so that the

appearance of the principal structure remains that of a one-family residence.

     (3) Accessory use. A use of land or of a building, or portion thereof, customarily incidental

and subordinate to the principal use of the land or building. An accessory use may be restricted to

the same lot as the principal use. An accessory use shall not be permitted without the principal use

to which it is related.

     (4) Affordable accessory apartment. Affordable accessory apartment means an accessory

apartment that is subject to binding recorded deeds which contain covenants or restrictions that

require such accessory apartment be sold or rented at, or below, prices that will preserve the unit

as housing for which, for a period of not less than ten (10) years, persons and families pay thirty

percent (30%) or less of income, where such income is less than or equal to eighty percent (80%)

of the median income for municipal residents;

     (5) As of right. As of right means the act, conduct or activity is approved or authorized in

accordance with the terms of a zoning regulation or regulations and without requiring that a public

hearing be held, a variance, special permit or special exception be granted or some other

discretionary zoning action be taken, other than a determination that a site plan is in conformance

with applicable zoning regulations;

     (4)(6) Aggrieved party. An aggrieved party, for purposes of this chapter, shall be:

     (i) Any person, or persons, or entity, or entities, who or that can demonstrate that his, her,

or its property will be injured by a decision of any officer or agency responsible for administering

the zoning ordinance of a city or town; or

     (ii) Anyone requiring notice pursuant to this chapter.

     (5)(7) Agricultural land. "Agricultural land," as defined in § 45-22.2-4.

     (6)(8) Airport hazard area. "Airport hazard area," as defined in § 1-3-2.

     (7)(9) Applicant. An owner, or authorized agent of the owner, submitting an application or

appealing an action of any official, board, or agency.

     (8)(10) Application. The completed form, or forms, and all accompanying documents,

exhibits, and fees required of an applicant by an approving authority for development review,

approval, or permitting purposes.

     (9)(11) Buffer. Land that is maintained in either a natural or landscaped state, and is used

to screen or mitigate the impacts of development on surrounding areas, properties, or rights-of-

way.

     (10)(12) Building. Any structure used or intended for supporting or sheltering any use or

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occupancy.

     (11)(13) Building envelope. The three-dimensional space within which a structure is

permitted to be built on a lot and that is defined by regulations governing building setbacks,

maximum height, and bulk; by other regulations; or by any combination thereof.

     (12)(14) Building height. For a vacant parcel of land, building height shall be measured

from the average, existing-grade elevation where the foundation of the structure is proposed. For

an existing structure, building height shall be measured from average grade taken from the

outermost four (4) corners of the existing foundation. In all cases, building height shall be measured

to the top of the highest point of the existing or proposed roof or structure. This distance shall

exclude spires, chimneys, flag poles, and the like. For any property or structure located in a special

flood hazard area, as shown on the official FEMA Flood Insurance Rate Maps (FIRMs), or depicted

on the Rhode Island coastal resources management council (CRMC) suggested design elevation

three foot (3') sea level rise (CRMC SDE 3 SLR) map as being inundated during a one-hundred-

year (100) storm, the greater of the following amounts, expressed in feet, shall be excluded from

the building height calculation:

     (i) The base flood elevation on the FEMA FIRM plus up to five feet (5') of any utilized or

proposed freeboard, less the average existing grade elevation; or

     (ii) The suggested design elevation as depicted on the CRMC SDE 3 SLR map during a

one-hundred-year (100) storm, less the average existing grade elevation. CRMC shall reevaluate

the appropriate suggested design elevation map for the exclusion every ten (10) years, or as

otherwise necessary.

     (13)(15) Cluster. A site-planning technique that concentrates buildings in specific areas on

the site to allow the remaining land to be used for recreation, common open space, and/or

preservation of environmentally, historically, culturally, or other sensitive features and/or

structures. The techniques used to concentrate buildings shall be specified in the ordinance and may

include, but are not limited to, reduction in lot areas, setback requirements, and/or bulk

requirements, with the resultant open land being devoted by deed restrictions for one or more uses.

Under cluster development, there is no increase in the number of lots that would be permitted under

conventional development except where ordinance provisions include incentive bonuses for certain

types or conditions of development.

     (14)(16) Common ownership. Either:

     (i) Ownership by one or more individuals or entities in any form of ownership of two (2)

or more contiguous lots; or

     (ii) Ownership by any association (ownership may also include a municipality) of one or

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more lots under specific development techniques.

     (15)(17) Community residence. A home or residential facility where children and/or adults

reside in a family setting and may or may not receive supervised care. This does not include halfway

houses or substance-use-disorder-treatment facilities. This does include, but is not limited to, the

following:

     (i) Whenever six (6) or fewer children or adults with intellectual and/or developmental

disability reside in any type of residence in the community, as licensed by the state pursuant to

chapter 24 of title 40.1. All requirements pertaining to local zoning are waived for these community

residences;

     (ii) A group home providing care or supervision, or both, to not more than eight (8) persons

with disabilities, and licensed by the state pursuant to chapter 24 of title 40.1;

     (iii) A residence for children providing care or supervision, or both, to not more than eight

(8) children, including those of the caregiver, and licensed by the state pursuant to chapter 72.1 of

title 42;

     (iv) A community transitional residence providing care or assistance, or both, to no more

than six (6) unrelated persons or no more than three (3) families, not to exceed a total of eight (8)

persons, requiring temporary financial assistance, and/or to persons who are victims of crimes,

abuse, or neglect, and who are expected to reside in that residence not less than sixty (60) days nor

more than two (2) years. Residents will have access to, and use of, all common areas, including

eating areas and living rooms, and will receive appropriate social services for the purpose of

fostering independence, self-sufficiency, and eventual transition to a permanent living situation.

     (16)(18) Comprehensive plan. The comprehensive plan adopted and approved pursuant to

chapter 22.2 of this title and to which any zoning adopted pursuant to this chapter shall be in

compliance.

     (17)(19) Day care -- Daycare center. Any other daycare center that is not a family daycare

home.

     (18)(20) Day care -- Family daycare home. Any home, other than the individual's home,

in which day care in lieu of parental care or supervision is offered at the same time to six (6) or less

individuals who are not relatives of the caregiver, but may not contain more than a total of eight

(8) individuals receiving day care.

     (19)(21) Density, residential. The number of dwelling units per unit of land.

     (20)(22) Development. The construction, reconstruction, conversion, structural alteration,

relocation, or enlargement of any structure; any mining, excavation, landfill, or land disturbance;

or any change in use, or alteration or extension of the use, of land.

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     (21)(23) Development plan review. The process whereby authorized, local officials review

the site plans, maps, and other documentation of a development to determine the compliance with

the stated purposes and standards of the ordinance.

     (22)(24) District. See "zoning-use district."

     (23)(25) Drainage system. A system for the removal of water from land by drains, grading,

or other appropriate means. These techniques may include runoff controls to minimize erosion and

sedimentation during and after construction or development; the means for preserving surface and

groundwaters; and the prevention and/or alleviation of flooding.

     (24)(26) Dwelling unit. A structure, or portion of a structure, providing complete,

independent living facilities for one or more persons, including permanent provisions for living,

sleeping, eating, cooking, and sanitation, and containing a separate means of ingress and egress.

     (25)(27) Extractive industry. The extraction of minerals, including: solids, such as coal and

ores; liquids, such as crude petroleum; and gases, such as natural gases. The term also includes

quarrying; well operation; milling, such as crushing, screening, washing, and flotation; and other

preparation customarily done at the extraction site or as a part of the extractive activity.

     (26)(28)Family member. A person, or persons, related by blood, marriage, or other legal

means, including, but not limited to, a child, parent, spouse, mother-in-law, father-in-law,

grandparents, grandchildren, domestic partner, sibling, care recipient, or member of the household.

     (27)(29)Floating zone. An unmapped zoning district adopted within the ordinance that is

established on the zoning map only when an application for development, meeting the zone

requirements, is approved.

     (28)(30) Floodplains, or Flood hazard area. As defined in § 45-22.2-4.

     (29)(31) Freeboard. A factor of safety expressed in feet above the base flood elevation of

a flood hazard area for purposes of floodplain management. Freeboard compensates for the many

unknown factors that could contribute to flood heights, such as wave action, bridge openings, and

the hydrological effect of urbanization of the watershed.

     (30)(32) Groundwater. "Groundwater" and associated terms, as defined in § 46-13.1-3.

     (31)(33) Halfway house. A residential facility for adults or children who have been

institutionalized for criminal conduct and who require a group setting to facilitate the transition to

a functional member of society.

     (32)(34) Hardship. See § 45-24-41.

     (33)(35) Historic district or historic site. As defined in § 45-22.2-4.

     (34)(36) Home occupation. Any activity customarily carried out for gain by a resident,

conducted as an accessory use in the resident's dwelling unit.

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     (35)(37) Household. One or more persons living together in a single-dwelling unit, with

common access to, and common use of, all living and eating areas and all areas and facilities for

the preparation and storage of food within the dwelling unit. The term "household unit" is

synonymous with the term "dwelling unit" for determining the number of units allowed within any

structure on any lot in a zoning district. An individual household shall consist of any one of the

following:

     (i) A family, which may also include servants and employees living with the family; or

     (ii) A person or group of unrelated persons living together. The maximum number may be

set by local ordinance, but this maximum shall not be less than three (3).

     (36)(38) Incentive zoning. The process whereby the local authority may grant additional

development capacity in exchange for the developer's provision of a public benefit or amenity as

specified in local ordinances.

     (37)(39) Infrastructure. Facilities and services needed to sustain residential, commercial,

industrial, institutional, and other activities.

     (38)(40) Land-development project. A project in which one or more lots, tracts, or parcels

of land are developed or redeveloped as a coordinated site for one or more uses, units, or structures,

including, but not limited to, planned development or cluster development for residential,

commercial, institutional, recreational, open space, or mixed uses as provided in the zoning

ordinance.

     (39)(41) Lot. Either:

     (i) The basic development unit for determination of lot area, depth, and other dimensional

regulations; or

     (ii) A parcel of land whose boundaries have been established by some legal instrument,

such as a recorded deed or recorded map, and that is recognized as a separate legal entity for

purposes of transfer of title.

     (40)(42) Lot area. The total area within the boundaries of a lot, excluding any street right-

of-way, usually reported in acres or square feet.

     (41)(43) Lot area, minimum. The smallest land area established by the local zoning

ordinance upon which a use, building, or structure may be located in a particular zoning district.

     (42)(44) Lot building coverage. That portion of the lot that is, or may be, covered by

buildings and accessory buildings.

     (43)(45) Lot depth. The distance measured from the front lot line to the rear lot line. For

lots where the front and rear lot lines are not parallel, the lot depth is an average of the depth.

     (44)(46) Lot frontage. That portion of a lot abutting a street. A zoning ordinance shall

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specify how noncontiguous frontage will be considered with regard to minimum frontage

requirements.

     (45)(47) Lot line. A line of record, bounding a lot, that divides one lot from another lot or

from a public or private street or any other public or private space and shall include:

     (i) Front: the lot line separating a lot from a street right-of-way. A zoning ordinance shall

specify the method to be used to determine the front lot line on lots fronting on more than one

street, for example, corner and through lots;

     (ii) Rear: the lot line opposite and most distant from the front lot line, or in the case of

triangular or otherwise irregularly shaped lots, an assumed line at least ten feet (10') in length

entirely within the lot, parallel to and at a maximum distance from, the front lot line; and

     (iii) Side: any lot line other than a front or rear lot line. On a corner lot, a side lot line may

be a street lot line, depending on requirements of the local zoning ordinance.

     (46)(48) Lot size, minimum. Shall have the same meaning as "minimum lot area" defined

herein.

     (47)(49) Lot, through. A lot that fronts upon two (2) parallel streets, or that fronts upon two

(2) streets that do not intersect at the boundaries of the lot.

     (48)(50) Lot width. The horizontal distance between the side lines of a lot measured at right

angles to its depth along a straight line parallel to the front lot line at the minimum front setback

line.

     (49)(51)Mere inconvenience. See § 45-24-41.

     (50)(52) Mixed use. A mixture of land uses within a single development, building, or tract.

     (51)(53) Modification. Permission granted and administered by the zoning enforcement

officer of the city or town, and pursuant to the provisions of this chapter to grant a dimensional

variance other than lot area requirements from the zoning ordinance to a limited degree as

determined by the zoning ordinance of the city or town, but not to exceed twenty-five percent (25%)

of each of the applicable dimensional requirements.

     (52)(54) Nonconformance. A building, structure, or parcel of land, or use thereof, lawfully

existing at the time of the adoption or amendment of a zoning ordinance and not in conformity with

the provisions of that ordinance or amendment. Nonconformance is of only two (2) types:

     (i) Nonconforming by use: a lawfully established use of land, building, or structure that is

not a permitted use in that zoning district. A building or structure containing more dwelling units

than are permitted by the use regulations of a zoning ordinance is nonconformity by use; or

     (ii) Nonconforming by dimension: a building, structure, or parcel of land not in compliance

with the dimensional regulations of the zoning ordinance. Dimensional regulations include all

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regulations of the zoning ordinance, other than those pertaining to the permitted uses. A building

or structure containing more dwelling units than are permitted by the use regulations of a zoning

ordinance is nonconforming by use; a building or structure containing a permitted number of

dwelling units by the use regulations of the zoning ordinance, but not meeting the lot area per

dwelling unit regulations, is nonconforming by dimension.

     (53)(55) Overlay district. A district established in a zoning ordinance that is superimposed

on one or more districts or parts of districts. The standards and requirements associated with an

overlay district may be more or less restrictive than those in the underlying districts consistent with

other applicable state and federal laws.

     (54)(56) Performance standards. A set of criteria or limits relating to elements that a

particular use or process must either meet or may not exceed.

     (55)(57) Permitted use. A use by right that is specifically authorized in a particular zoning

district.

     (56)(58) Planned development. A "land-development project," as defined in subsection

(38), and developed according to plan as a single entity and containing one or more structures or

uses with appurtenant common areas.

     (57)(59) Plant agriculture. The growing of plants for food or fiber, to sell or consume.

     (58)(60) Preapplication conference. A review meeting of a proposed development held

between applicants and reviewing agencies as permitted by law and municipal ordinance, before

formal submission of an application for a permit or for development approval.

     (59)(61) Setback line or lines. A line, or lines, parallel to a lot line at the minimum distance

of the required setback for the zoning district in which the lot is located that establishes the area

within which the principal structure must be erected or placed.

     (60)(62) Site plan. The development plan for one or more lots on which is shown the

existing and/or the proposed conditions of the lot.

     (61)(63) Slope of land. The grade, pitch, rise, or incline of the topographic landform or

surface of the ground.

     (62)(64) Special use. A regulated use that is permitted pursuant to the special-use permit

issued by the authorized governmental entity, pursuant to § 45-24-42. Formerly referred to as a

special exception.

     (63)(65) Structure. A combination of materials to form a construction for use, occupancy,

or ornamentation, whether installed on, above, or below the surface of land or water.

     (64)(66) Substandard lot of record. Any lot lawfully existing at the time of adoption or

amendment of a zoning ordinance and not in conformance with the dimensional or area provisions

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of that ordinance.

     (65)(67) Use. The purpose or activity for which land or buildings are designed, arranged,

or intended, or for which land or buildings are occupied or maintained.

     (66)(68) Variance. Permission to depart from the literal requirements of a zoning

ordinance. An authorization for the construction or maintenance of a building or structure, or for

the establishment or maintenance of a use of land, that is prohibited by a zoning ordinance. There

are only two (2) categories of variance, a use variance or a dimensional variance.

     (i) Use variance. Permission to depart from the use requirements of a zoning ordinance

where the applicant for the requested variance has shown by evidence upon the record that the

subject land or structure cannot yield any beneficial use if it is to conform to the provisions of the

zoning ordinance.

     (ii) Dimensional variance. Permission to depart from the dimensional requirements of a

zoning ordinance, where the applicant for the requested relief has shown, by evidence upon the

record, that there is no other reasonable alternative way to enjoy a legally permitted beneficial use

of the subject property unless granted the requested relief from the dimensional regulations.

However, the fact that a use may be more profitable or that a structure may be more valuable after

the relief is granted are not grounds for relief.

     (67)(69) Waters. As defined in § 46-12-1(23).

     (68)(70) Wetland, coastal. As defined in § 45-22.2-4.

     (69)(71) Wetland, freshwater. As defined in § 2-1-20.

     (70)(72) Zoning certificate. A document signed by the zoning-enforcement officer, as

required in the zoning ordinance, that acknowledges that a use, structure, building, or lot either

complies with, or is legally nonconforming to, the provisions of the municipal zoning ordinance or

is an authorized variance or modification therefrom.

     (71)(73) Zoning map. The map, or maps, that are a part of the zoning ordinance and that

delineate the boundaries of all mapped zoning districts within the physical boundary of the city or

town.

     (72)(74) Zoning ordinance. An ordinance enacted by the legislative body of the city or

town pursuant to this chapter and in the manner providing for the adoption of ordinances in the city

or town's legislative or home rule charter, if any, that establish regulations and standards relating

to the nature and extent of uses of land and structures; that is consistent with the comprehensive

plan of the city or town as defined in chapter 22.2 of this title; that includes a zoning map; and that

complies with the provisions of this chapter.

     (73)(75) Zoning-use district. The basic unit in zoning, either mapped or unmapped, to

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which a uniform set of regulations applies, or a uniform set of regulations for a specified use.

Zoning-use districts include, but are not limited to: agricultural, commercial, industrial,

institutional, open space, and residential. Each district may include sub-districts. Districts may be

combined.

     45-24-37. General provisions -- Permitted uses.

     (a) The zoning ordinance shall provide a listing of all land uses and/or performance

standards for uses that are permitted within the zoning use districts of the municipality.

     (b) Notwithstanding any other provision of this chapter, the following uses are permitted

uses within all residential zoning use districts of a municipality and all industrial and commercial

zoning use districts except where residential use is prohibited for public health or safety reasons:

     (1) Households;

     (2) Community residences; and

     (3) Family daycare homes.

     (c) Any time a building or other structure used for residential purposes, or a portion of a

building containing residential units, is rendered uninhabitable by virtue of a casualty such as fire

or flood, the owner of the property is allowed to park, temporarily, mobile and manufactured home,

or homes, as the need may be, elsewhere upon the land, for use and occupancy of the former

occupants for a period of up to twelve (12) months, or until the building or structure is rehabilitated

and otherwise made fit for occupancy. The property owner, or a properly designated agent of the

owner, is only allowed to cause the mobile and manufactured home, or homes, to remain

temporarily upon the land by making timely application to the local building official for the

purposes of obtaining the necessary permits to repair or rebuild the structure.

     (d) Notwithstanding any other provision of this chapter, appropriate access for people with

disabilities to residential structures is allowed as a reasonable accommodation for any person(s)

residing, or intending to reside, in the residential structure.

     (e) Notwithstanding any other provision of this chapter, an accessory family dwelling unit

apartment or an affordable accessory apartment in an owner-occupied, single-family residence shall

be permitted as a reasonable accommodation for family members with disabilities or who are sixty-

two (62) years of age or older, or to accommodate other family members of right. The appearance

of the structure shall remain that of a single-family residence and there shall be an internal means

of egress between the principal unit and the accessory family dwelling unit. If possible, no

additional exterior entrances should be added. Where additional entrance is required, placement

should generally be in the rear or side of the structure. When the structure is serviced by an

individual sewage disposal system, the applicant shall have the existing or any new system

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approved by the department of environmental management. The zoning enforcement officer shall

require that a declaration of the accessory family dwelling unit for the family member, or members,

and its restrictions be recorded in the land evidence records and filed with the zoning enforcement

officer and the building official. Once the family members with disabilities or who are sixty-two

(62) years of age or older, or any other family member, no longer reside(s) in the premises on a

permanent basis, or the title is transferred, the property owner shall notify the zoning official in

writing, and the accessory family dwelling unit shall no longer be permitted, unless there is a

subsequent, valid application.

     (f) When used in this section the terms "people with disabilities" or "member, or members,

with disabilities" means a person(s) who has a physical or mental impairment that substantially

limits one or more major life activities, as defined in § 42-87-1(7).

     (g) Notwithstanding any other provisions of this chapter, plant agriculture is a permitted

use within all zoning districts of a municipality, including all industrial and commercial zoning

districts, except where prohibited for public health or safety reasons or the protection of wildlife

habitat.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES -- ZONING ORDINANCES -- ACCESSORY

APARTMENTS

***

     This act would eliminate the restrictions on accessory dwelling units and allow for

accessory apartments and affordable accessory apartments as a matter of right.

     This act would take effect upon passage.

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