VARIANCE

1902 VARIANCE

• A. Authority The Zoning Board of Review, or the City Plan Commission, as part of unified development review, will take formal action on variance applications.

• B. Procedure

  1. Upon receipt of a complete application for a variance, the Zoning Board of Review, or the City Plan Commission, as part of unified development review, will request that the Department of Planning and Development staff prepare a written report of the staff’s findings and recommendations, which will be submitted to the applicable review body. The findings and recommendations shall include a statement on the general consistency of the application with the goals and purpose of the Comprehensive Plan.

• 2. The Zoning Board of Review, or the City Plan Commission, as part of unified development review, will hold a public hearing on the variance application in an expeditious manner, after receipt, in proper form, of an application, and shall give notice as required by Section 1801.

• 3. In granting a variance, the Zoning Board of Review, or the City Plan Commission, as part of unified development review, shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings: a. That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant, excepting those physical disabilities addressed in Rhode Island General Laws §45-24-30(16).

• • b. That the hardship is not the result of any prior action of the applicant. This standard shall not apply to dimensional variance applications for subdivisions under unified development review.

• • c. That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of this Ordinance or the Comprehensive Plan.

• 4. In addition, the Zoning Board of Review, or the City Plan Commission, as part of unified development review, requires that evidence be entered into the record of the proceedings showing that: a. In granting a use variance, the subject land or structure cannot yield any beneficial use if it is required to conform to the provisions of this Ordinance. Nonconforming use of neighboring land or structures in the same district and permitted use of lands or structures in an adjacent district are not considered in granting a use variance.

• • b. In granting a dimensional variance, the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted will amount to more than a mere inconvenience, meaning that the relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted is not grounds for relief.

• 5. In addition to the above, the Zoning Board of Review, or the City Plan Commission, as part of unified development review, will consider the written opinion of the Department of Planning and Development prior to making a decision on a variance petition.

• • C. Conditions The Zoning Board of Review, or the City Plan Commission, as part of unified development review, may impose such conditions regarding the proposed variance as it deems appropriate. Special conditions may be required, in the opinion of the Zoning Board of Review, or the City Plan Commission, as part of unified development review, to promote the intent and purposes of the Comprehensive Plan and the Zoning Ordinance. Failure to abide by any special conditions attached to approval constitutes a zoning violation. Those special conditions shall be based on competent credible evidence on the record, be incorporated into the decision, and may include, but are not limited to, provisions for:

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

• 2. Controlling the sequence of development, including when it shall be commenced and completed.

• 3. Controlling the duration of use or development and the time within which any temporary structure shall be removed.

• 4. Assuring satisfactory installation and maintenance of required public improvements.

• 5. Designating the exact location and nature of development.

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

• • D. Expiration Any variance granted by the City Plan Commission, in conjunction with a land development project or subdivision as part of unified development review, shall expire when the approval for the associated land development project or subdivision expires. Any variance granted by the Zoning Board of Review shall expire six months after the date of the filing of the resolution in the Office of the Board unless the applicant, within the six months:

• 1. Obtains a legal, complete building permit for the project and proceeds with construction of the proposed improvements. For purposes of this section, demolition permits and foundation permits are not construed to be building permits.

• 2. Obtains a legal building permit or a certificate of occupancy when no construction is required.

• • E. Extension of Time

    1. The Zoning Board of Review may, upon written request and for cause shown prior to the expiration of the initial six month period, renew the variance for a second six month period. The request for an extension need not be advertised.

• 2. If an applicant fails to obtain a legal building permit within the second six month period, the Zoning Board of Review may upon written request prior to the end of the second six month period, renew the variance for a third six month period provided that the applicant can demonstrate due diligence in proceeding and substantial financial commitment in promoting the subject of the variance since the date of the filing of the resolution. The request for the third six month period shall be advertised and notice given in accordance with Section 1801. A hearing will be held on the request.

• 3. No extension may be granted during an appeal to Superior Court.

• • F. Appeals Any aggrieved party may appeal the decision of the Zoning Board of Review to the Rhode Island Superior Court within 20 days after a decision is recorded and posted in the office of the City Clerk. The process for appeals of decisions by the City Plan Commission is outlined in the City Plan Commission’s Development Review Regulations.