Chapter 315

2005 -- S 1090 AS AMENDED

Enacted 07/15/05

A N A C T

RELATING TO SEPARATION OF POWERS

Introduced By: Senators Sheehan, Cote, Issa, Doyle, and Lanzi

Date Introduced: May 11, 2005

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 24-15-2 and 24-15-10 of the General Laws in Chapter 24-15

entitled "Scenic Highways" are hereby amended to read as follows:

24-15-2. Definitions. -- As used in this chapter:

        (1) "Board" means the scenic roadways board in the department of transportation.

(2) "Commission" means the scenic highway commission as established in this chapter.

        (3) "Director" means the director of the department of transportation.

        (4) "Municipality" means a city or town.

24-15-10. Creation of board. -- There is hereby authorized, created and established

within the executive department of transportation a scenic roadways board consisting of eleven

(11) members as follows: one member shall be the director of the department of transportation or

his or her designee who shall be a subordinate within the department of transportation; one

member shall be the director of the department of environmental management or his or her

designee who shall be a subordinate within the department of environmental management; one

member shall be the chairperson chair of the historic preservation commission; one member to

shall be designated appointed by the governor with the advice and consent of the senate giving

due consideration to the recommendation of by the audubon society of Rhode Island Grow Smart

Rhode Island; one member to be appointed by the president of the senate; one member to be

appointed by the senate minority leader; one member to be appointed by the speaker of the house

of representatives; one member to be appointed by minority leader of the house of representatives

and one member to shall be designated appointed by the governor with the advice and consent of

the senate giving due consideration to the recommendation of by the Rhode Island builders

association. The governor shall appoint two (2) members of the public to serve on the board as

follows: one member to serve until the first day of June, 1986, and one member to serve until the

first day of June, 1987, and all members shall serve until their successors are appointed and

qualified. In the month of May, 1986, and in the month of May in each year thereafter, the

governor shall appoint successors to the public members of the board whose terms shall expire in

such year, to hold office commencing on the first day of June in the year of appointment and until

the first day of June in the third year of their respective appointments; six (6) members shall be

appointed by the governor from the general public with the advice and consent of the senate, in

making these appointments, the governor shall take into consideration the impact on the local

communities. The governor shall give due consideration to members of local land trusts, chamber

of commerce recommendations and shall also consider the need for individuals with expertise in

landscape architecture, community planning, and/or transportation engineers with experience

with traffic calming and flexible design policies. The members shall be chosen as far as is

reasonably practicable to represent geographical diversity and communities where designated

scenic roadways exist. During the month of January, in each year the governor shall appoint a

member to succeed the departing member. The newly appointed member shall serve for a term of

three (3) years or until their respective successors are appointed and qualified. The members of

the board shall be eligible to succeed themselves. Any vacancy of a public member which may

occur in the board shall be filled by appointment by the governor for the remainder of the

unexpired term. in the same manner as the members predecessor as prescribed in this section.

Each ex-officio member of the board may designate a subordinate within his or her department or

agency to represent him or her at all meetings of the board. Beginning June 28, 1985, the

members of the board shall meet at the call of the director of the department of transportation and

organize and shall select among themselves a chairperson. Immediately upon passage of this bill,

and every two (2) years thereafter, the members of the board shall meet at the call of the director

of transportation and elect among themselves a chairperson and vice chairperson who shall hold

office for two (2) years. The membership of the board shall receive no compensation for their

services, and shall not be reimbursed for any expenses. Those members of the board as of the

effective date of this act who were appointed to the board by members of the general assembly

shall cease to be members of the board on the effective date of this act, and the governor shall

thereupon appoint the four (4) new members as prescribed in this section. Those members of the

board as of the effective date of this act who were appointed to the board by the governor shall

continue to serve the balance of their current terms. Upon the expiration of the term of the

member representing the Audubon Society of Rhode Island, the governor shall appoint a new

member, and shall give due consideration to the recommendation of Grow Smart Rhode Island.

Thereafter, the appointments shall be made by the governor as prescribed in this section. No one

shall be eligible for appointment unless he or she is a resident of this state. The director of the

department of transportation shall direct staff to support the board within the constraints of

available resources.

     SECTION 2. Chapter 24-15 of the General Laws entitled “Scenic Highways” is hereby

amended by adding thereto the following sections:

24-15-10.1. Chair, quorum and removal for cause. -- (a) Upon the passage

of this act and the appointment and qualification of the four (4) new members prescribed

in section 24-15-10, the board shall meet at the call of the director of transportation

and shall elect from among the members a chair and a vice-chair. Thereafter, the

board shall annually elect in February a chair and a vice-chair from among the members. The

board may elect from among its members such other officers as it deems necessary.

(b) Six (6) members of the board shall constitute a quorum, and a majority vote of those

present and voting shall be required for action.

(c) Members of the board shall be removable by the governor pursuant to section 36-1-7

of the general laws and for cause only, and removal solely for partisan or personal reasons

unrelated to capacity or fitness for the office shall be unlawful.

24-15-10.2. Powers and duties -- In addition to the duties and powers conferred upon the

board by this chapter, it has the following additional duties and powers:

(1) To conduct a training course for newly appointed and qualified members and new

designees of ex-officio members within six (6) months of their qualification or designation. The

course shall be developed by the chair of the board, approved by the board, and conducted by the

chair of the board. The board may approve the use of any board or staff members or other

individuals to assist with training. It shall include instruction in the following areas: the

provisions of chapters 25-15, 42-46, 36-14 and 38-2; and the board’s rules and regulations. The

director of the department of administration shall, within ninety (90) days of the effective date of

this act, prepare and disseminate training materials relating to the provisions of chapters 42-46,

36-14 and 38-2.

(2) To approve and submit, an annual report within ninety (90) days after the end of each

fiscal year to the governor, the speaker of the house of representatives, the president of the senate,

and the secretary of state of its activities during that fiscal year. The report shall provide: an

operating statement summarizing meetings or hearings held, including meeting minutes, subjects

addressed, decisions rendered, applications considered and their disposition, rules or regulations

promulgated, studies conducted, policies and plans developed, approved, or modified, and

programs administered or initiated; a consolidated financial statement of all funds received and

expended including the source of the funds, a listing of any staff supported by these funds, and a

summary of any clerical, administrative or technical support received; a summary of performance

during the previous fiscal year including accomplishments, shortcomings and remedies; a

synopsis of any legal matters related to the authority of the board; a summary of any training

courses held pursuant to this section; a briefing on anticipated activities in the upcoming fiscal

year; and findings and recommendations for improvements. The report shall be posted

electronically as prescribed in section 42-20-8.2. The director of the department of

administration shall be responsible for the enforcement of this provision.

     SECTION 3. Sections 42-45-2, 42-45-3 and 42-45-5 of the General Laws in Chapter 42-

45 entitled "Rhode Island Historical Preservation and Heritage Commission" are hereby amended

to read as follows:

42-45-2. Creation of commission -- Members. -- (a) There is hereby created within the

executive department an historical preservation and heritage commission consisting of eighteen

(18) fifteen (15) members as follows: ten (10) shall represent the public and shall be appointed by

the governor as herein provided. Of the ten (10) public members, at least one shall possess

background and qualifications of an historian, one an archaeologist, one an architect, or an

architectural historian, one a museologist, and one an anthropologist, one a landscape historian or

landscape architect, and one a representative of a private nonprofit historic preservation

organization. Seven (7) Five (5) members shall consist of: the director of the Rhode Island

Economic Development Corporation; the director of the department of environmental

management; the associate director of administration for planning; the state building

commissioner, and the state historic preservation officer, each of whom shall serve as nonvoting

ex officio ex-officio members. ; the chairperson of the house finance committee or a member of the house

finance committee designated by the chairperson; and the chairperson of the senate finance

committee or a member of the senate finance committee designated by the chairperson. One

member shall be selected by the heritage subcommittee from among its members. The governor

shall appoint the public members of the commission as follows: two (2) members to serve until the

first day of June, 1970, three (3) members to serve until the first day of June, 1971, and four (4)

members to serve until the first day of June, 1972, and all members shall serve until their successors

are appointed and qualified. In the month of May, 1970, and in the month of May in each year

thereafter, the governor shall appoint successors to the public members of the commission whose

terms shall expire in that year, to hold office commencing on the first day of June in the year of

appointment and until the first day of June in the third year after their respective appointments or

until their respective successors are appointed and qualified. Any vacancy of a public member

which may occur in the commission shall be filled by appointment by the governor for the remainder

of the unexpired term. All gubernatorial appointments made pursuant to this subsection after the

effective date of this act shall be subject to the advice and consent of the senate. No person shall

be eligible for appointment to the commission unless he or she is a resident of the state. Each

ex officio member of the commission may designate a subordinate within his or her department or

agency to represent him or her at all meetings of the commission. Members of the commission shall

be eligible to succeed themselves.

(b) There shall be a Heritage subcommittee of the commission consisting of twenty-five

(25) members appointed by the governor broadly representing various ethnic, religious, historic,

educational, cultural, social, military, and maritime heritages for the state. Five (5) commissioners

will be appointed for a term of one year, ten (10) commissioners will be appointed for a term of

three (3) years, ten (10) commissioners will be appointed for a term of five (5) years, all

subsequent appointments of commissioners shall be for three (3) year terms.

(c) Members of the commission and members of the subcommittee holding office upon

passage of this article shall continue in office until their successors are appointed and qualified.

(b) Members of the commission shall be removable by the governor pursuant to section

36-1-7 of the general laws and for cause only, and any removal solely for partisan or personal

reasons unrelated to capacity or fitness for the office shall be unlawful.

42-45-3. Officers of the historical preservation and heritage commission. -- The

commission shall annually elect from its members a chairperson and secretary. Five (5) Six (6)

voting members of the commission shall constitute a quorum, and no vacancy in the membership

of the commission shall impair the right of a quorum to exercise all the rights and perform all of

the duties of the commission. Meetings of the commission shall be held upon the call of the

chairperson, or a majority of the commission, upon due written notice mailed or delivered at least

forty-eight (48) hours in advance of the meeting.

42-45-5. Powers and duties. -- (1) The commission shall:

      (a) Establish criteria for evaluating historical, architectural, or cultural sites, buildings,

places, landmarks, or areas so as to determine their value in terms of national, state, or local

importance and to adjudge their worthiness for inclusion in the state register;

      (b) Compile, maintain, and publish a state register of historical, architectural, and

cultural sites, buildings, places, landmarks, and areas which shall be revised every two (2) years.

The state, a city or town, or any subdivision or instrumentality thereof shall not undertake, fund,

or license any activity which will encroach upon, damage, or destroy, physically, visually, or

environmentally, any site, building, place, landmark, or area included in the state register without

first obtaining the advice of the historical preservation and heritage commission. The commission

shall advise the party proposing an activity affecting any item in the state register of its opinion in

writing, together with any maps, drawings, photographs, or material necessary to explain or

support its advisory. If a written advisory is not given within sixty (60) days of receipt of notice

of a proposed activity, the commission shall be deemed to approve the proposal. If more than

sixty (60) days are needed to evaluate a proposed activity and render an advisory, arrangements

for a reasonable extension shall be made by the commission and the party proposing the activity.

Advisories rendered by the commission on any proposed activity affecting an item on the state

register shall be followed unless there are compelling reasons for not doing so. In these cases, a

statement of the reasons, together with a copy of the commission's advisory, shall be submitted to

the governor for final determination;

      (c) (i) Assist and advise the department of administration and other appropriate agencies

designated by the governor in preparing that element or elements of the state guide plan dealing

with plans and programs for the preservation of historic sites and structures.

      (ii) There shall also be included in such state guide plan a program for preservation of

historic landscapes, and state land-use planning which shall consider the impact of land-use on

historic landscapes. To assist in preparation of those elements of the state guide plan dealing with

the preservation of historic landscapes, the commission shall prepare and maintain a statewide

inventory of historic landscapes.

      (d) Prepare statewide plans or programs for the preservation of sites or structures

included in the state register which shall list the methods, practices, and procedures to be used in

preserving or according recognition to sites or buildings. The plans or programs shall be a part of

the state guide plan;

      (e) Cause to be prepared plaques or markers made of some suitable material to be erected

on, or affixed to with the permission of the owner, in a conspicuous place, those sites or buildings

determined worthy of inclusion in the state register;

      (f) Acquire or receive, by purchase, gift, or otherwise, with the approval of the governor

in the case of a gift and in accordance with chapter 6 of title 37 in other cases, land or any interest

in land and/or buildings which have been designated in the state register for the purpose of

preserving the land and/or buildings; hold and maintain them, and give custody of the

acquisitions for the purpose of preserving, maintaining, or exhibiting them to qualified nonprofit

organizations with due regard for the interest of the state and the public in the property;

      (g) Grant or loan funds to towns or cities or private groups of funds made available

therefor by the state or federal government, for the purpose of acquiring, restoring, relocating, or

otherwise preserving land or buildings designated in the state register;

      (h) Receive on behalf of the state such grants or loans as may be made by the federal

government or by private persons or groups for the purposes of this chapter, and it shall be the

designated agency of the state in applying for these grants;

      (i) Inventory and catalog all buildings, sites, objects, and artifacts of historical,

architectural, or archaeological interest which are within the custody or jurisdiction of the

departments and agencies of state government. This inventory and catalog shall include buildings,

ruins, and other structures, monuments, paintings, photographs, flags, furniture, clothing, military

equipment and uniforms, archaeological materials, and all other articles of historic, architectural,

or archaeological interest. All departments and agencies will assist the commission in making this

inventory and catalog. The commission shall inform each department and agency of those items

contained in the inventory which are within its custody or jurisdiction by furnishing copies of the

catalog or an extract thereof to each department and agency concerned. Copies of all amendments

to the catalog, or extracts thereof, shall also be furnished to each department and agency

concerned;

      (j) Advise the department and agencies of state government of the appropriateness,

suitability, proper procedures, and other safeguards which should be observed in preserving,

displaying, or using items contained in the catalog of articles of historic, architectural, or

archaeological interest. When notified of any proposal to physically alter, change the location or

method of storage, or change the manner of utilization or public accessibility, or to otherwise

significantly affect any item listed in the catalog, the commission shall advise the responsible

agency in writing, accompanied by any maps, drawings, photographs, or other explanatory

material necessary. If a written advisory is not given within sixty (60) days of receipt of a notice

of proposed action, the commission shall be deemed to approve the proposal. If more than sixty

(60) days are needed to evaluate a proposal and render an advisory, arrangements for a reasonable

extension shall be made by the commission and the department or agency concerned. Advisories

given by the commission in accordance with this section shall be followed by the department or

agency concerned unless there are compelling reasons for not doing so. In these cases, a

statement of the reasons, together with a copy of the commission's advisory, shall be submitted to

the governor for determination;

      (k) Survey the use or occupancy of all state-owned buildings or sites which are of

historic, architectural, or archaeological interest. The commission shall make recommendations to

the director of administration concerning the appropriate use and availability of public access of

each building and site, so that these may be utilized and displayed in a manner in keeping with

their historic, architectural, or archaeological value;

      (l) Appoint a state review board from among its own members and such other persons as

it may desire, one of whom shall possess the background and qualifications of an historian, one of

whom shall be an architect or architectural historian, and one of whom shall be an archaeologist

as required by the office of archaeology and historic preservation in the national park service. The

state review board shall approve nominations to the state and national registers of historic places,

approve the removal of properties from either register, and otherwise act in an advisory capacity

to the historical preservation and heritage commission. ;

      (m) To implement a state-owned historic properties program, to provide technical

assistance to agencies with jurisdiction over historic properties, and review proposed alterations

to state-owned historic properties; the commission shall develop in conjunction herewith the

educational materials to implement these programs; and

      (n) To reorganize the operation of and assume the supervisory responsibility for the

following structures: the old State House, Benefit Street arsenal, Stephen Hopkins house

(Providence), Bristol court house (Bristol), Kent County court house (East Greenwich). For

purposes of this subdivision, the commission shall appoint from its own members a historic sites

division which shall implement the duties of this subdivision. ;

(o) To promote heritage by sponsoring and or coordinating heritage festivals; conducting

and/or sponsoring heritage seminars, conferences, and symposiums; publishing scholarly and

popular works relating to the social, political, and cultural development of the state; coordinating

programs with other private or public groups or agencies which will meet the cultural needs of

Rhode Island's citizens; observing important events in the state's history with suitable

celebrations; and funding projects and programs of public or private groups or agencies which

relate to the heritage of Rhode Island and its people;

(p) To conduct a training course for newly appointed and qualified members and new

designees of ex-officio members within six (6) months of their qualification or designation. The

course shall be developed by the chair of the commission, approved by the commission, and

conducted by the chair of the commission. The commission may approve the use of any

commission or staff members or other individuals to assist with training. It shall include

instruction in the following areas: the provisions of chapters 25-15, 42-46, 36-14 and 38-2; and

the commission’s rules and regulations. The director of the department of administration shall,

within ninety (90) days of the effective date of this act, prepare and disseminate training materials

relating to the provisions of chapters 42-46, 36-14 and 38-2; and

(q) To submit within (90) days after the end of the fiscal year an annual report to the

governor, the speaker of the house of representatives, the president of the senate, and the

secretary of state of its activities during that fiscal year. The report shall provide: an operating

statement summarizing meetings or hearings held, including meeting minutes, subjects addressed,

advisories rendered under subsection 42-45-5(1)(b), advisories rendered for activities to be

undertaken by departments and agencies of the state under subsection 42-45-5(1)(j), studies

conducted, policies and plans developed in order to assist other state agencies in preparing

elements of the state guide plan, plans or programs developed for the preservation of sites or

structures included in the state register, and any other programs administered or initiated

including any assistance or training provided agencies with jurisdiction over historic places; a

consolidated financial statement of all funds received and expended including the source of the

funds, grants or loans to towns, cities or private groups, a listing of any staff supported by these

funds, and a summary of any clerical, administrative or technical support received, and a

summary of any land or interest in land and/or buildings received during the fiscal year; a review

of the inventories complied as required in subsections 42-45-5(1)(b), 42-45-5(1)(c)(ii), and 42-

45-5(1)(h)(i); a summary of performance during the previous fiscal year including

accomplishments, shortcomings and remedies; a synopsis of any legal matters related to the

authority of the commission; a summary of any training courses held pursuant to subsection 42-

45-5(1)(p); a briefing on anticipated activities in the upcoming fiscal year; and findings and

recommendations for improvements. The report shall be posted electronically as prescribed in

section 42-20-8.2. The director of the department of administration shall be responsible for the

enforcement of this provision.

      (2) Whenever a public hearing on any project involving state or local governmental

funds or a federal grant or loan is held, notice of it shall be sent to any historic district

commission in the city or town and to the Rhode Island historical preservation and heritage

commission, together with a map indicating the area and the type of project to be discussed at the

hearing. Whenever an urban project plan is prepared through the use of, or contemplating the use

of, state or local governmental funds, a copy shall be transmitted to the Rhode Island historical

preservation and heritage commission.

     SECTION 4. Sections 42-45-3.1 and 42-45-6 of the General Laws in Chapter 42-45

entitled "Rhode Island Historical Preservation and Heritage Commission" are hereby repealed.

42-45-3.1. Officers of the heritage subcommittee. -- The governor shall appoint from

the heritage subcommittee members a chairperson to serve at the pleasure of the governor. A vice

chairperson and a secretary will be elected from and by the subcommittee body for a term of one

year.

42-45-6. Purpose of heritage subcommittee. -- The purposes of the heritage

subcommittee shall include but not be limited to:

(1) Sponsoring and/or coordinating heritage festivals;

(2) Conducting and/or sponsoring heritage seminars, conferences, and symposiums;

(3) Publishing scholarly and popular works relating to the social, political, and cultural

development of the state;

(4) Coordinating programs with other private or public groups or agencies which will

meet the cultural needs of Rhode Island's citizens;

(5) Observing important events in the state's history with suitable celebrations; and

(6) Funding projects and programs of public or private groups or agencies which relate

to the heritage of Rhode Island and its people.

     SECTION 5. Section 45-24.1-3 of the General Laws in Chapter 45-24.1 entitled

"Historical Area Zoning" is hereby amended to read as follows:

45-24.1-3. Creation of commission authorized – Membership appointment – Term of

office. -- (a) In order to carry out the purposes of this chapter any city or town council has have

the authority to create a commission called the historic district commission. The membership of a

commission in a city shall consist of seven (7) qualified members, and in a town shall consist of

not less than three (3) nor more than seven (7) qualified members, whose residence is located in

the city or town; provided, that the historic district commission of the city of Newport shall

consist of nine (9) qualified members, and provided, that the historic district commission of the

city of Providence shall consist of thirteen (13) eleven (11) qualified members, two (2) of whom

shall be members of the city council elected by the city council from its councilmanic members to

serve for a term of four (4) years, and two (2) of whom shall be members of the general assembly

elected from the city of Providence, one to be appointed from the senate by the president of the

senate and one to be appointed from the house by the speaker. In a city the members shall be

appointed by the mayor, except as provided in the case of the historic district commission of the

city of Providence, and in a town, by the president of the town council. Members of an historic

district commission shall be residents of the city or town.

        (b) The appointed members of the commission shall be appointed for three (3) year

terms, except the initial appointments of some of the members shall be for less than three (3)

years so that the initial appointments are staggered and so that subsequent appointments do not

reoccur at the same time.

        (c) Any city or town has the right to name an auxiliary member of the commission

appointed in addition to the regular members of the commission. The auxiliary member shall sit

as an active member, upon the request of the chairperson chair, when and if a regular member of

the commission is unable to serve at any meeting of the commission.

        (d) Appointed members of the commission are eligible for reappointment, and, upon

the expiration of their term, shall continue to serve until replaced unless otherwise provided for in

local law.

        (e) In the event of a vacancy on the commission, interim appointments of appointed

members may be made by the appointing authority to complete the unexpired term of the

position.

        (f) Organized and existing preservation societies may present to the appointing

authority of a city or town a list of qualified citizens, from which list the appointing authority may

select members of the commission for his or her respective city or town.

(g) Members of a commission shall serve without compensation.

     SECTION 6. Severability. If any provision of this act or application thereof to any person

or circumstances is held invalid, such invalidity shall not affect other provisions of applications of

this act, which can be given effect without the invalid provision or application, and to this end the

provisions of this act are declared to be severable.

     SECTION. 7 This act shall take effect upon passage.

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LC03154

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