Variances, special use permits, and appeals
906.1. Application. An application for relief from the literal requirements of a zoning ordinance because of hardship or an application for a special use permit may be made by any person, group, agency or corporation, provided that the owner or owners of the subject property must join in any application, by filing with the building official an application as described in section 903.2, above. An application from a corporation must be signed by its attorney or duly authorized officer of the corporation. The building official shall immediately transmit such application received to the board and shall transmit a copy of each application to the director of the department of city plan (hereafter known as the director).
906.2. Hearing and notice.
(A) The zoning board shall, immediately upon receipt of an application, request that the director shall report his findings and recommendations, including a statement on the general consistency of the application with the goals and purposes of the comprehensive plan of the city, in writing to the board within 30 days. Prior to rendering a decision, the zoning board of review shall consider, but not necessarily be bound by an advisory opinion of the director, provided that such advisory opinion is delivered in writing no later than the date of the required public hearing for the petition in question.
(B) The board shall hold a public hearing on any application for variance or special use permit in an expeditious manner, after receipt, in proper form, of an application, and shall give public notice thereof at least 14 days prior to the date of the hearing, which notice shall include the precise location of the subject property, including the street address, and a description of the relief sought, as follows:
(1) In a newspaper of local circulation in the city; and
(2) By first class mail to:
(i) All owners of the subject property in question; and
(ii) All property owners of record of land within 200 feet of the property, which is the subject of the application, whether within the city or within an adjacent city or town, provided however, if the subject property is zoned Residential A-40 or if more than 50 percent of the number of parcels which are residentially zoned land within the 200 foot radius of the subject property are zoned Residential A-40, then notice shall be sent to all property owners of record within 400 feet of the property; provided further however, if the only relief sought in the application is a dimensional variance for a single-family house lot, then notice shall only be sent to property owners of record within 200 feet of the property, without regard to the percent of A-40 parcels within the 200 foot radius; and
(iii) The member of the Warwick City Council in such ward as the subject property is located; and
(iv) The city or town council of any city or town to which one or more of the following pertain:
(a) Which is located in or within not less than 200 feet of the boundary of the subject property; and
(b) Where there is a public or quasi public water source, or private water source that is used or is suitable for use as a public water source, within 2,000 feet of the subject property, regardless of municipal boundaries; and
(v) The governing body of any state or municipal water department or agency, special water district, or private water company that has riparian rights to a surface water resource and/or surface watershed that is used or is suitable for use as a public water source and that is within 2,000 feet of the subject property, provided, however, that the governing body of any state or municipal water department or agency, special water district, or private water company has filed with the building official a map survey, which shall be kept as public record, showing areas of surface water resources and/or watersheds and parcels of land within 2,000 feet thereof.
(3) The same notice shall be posted in the city's clerk's office and one other municipal building in the municipality and the municipality must make the notice accessible on their municipal home page of its website at least 14 days prior to the hearing. For any notice sent by first-class mail, the sender of the notice shall submit a notarized affidavit to attest to such mailing. The cost of newspaper and mailing notification shall be borne by the applicant.
906.3. Standards for relief.
(A) All variances. In granting a variance, the board shall require that evidence to the satisfaction of the following standards be entered into the record of the proceedings:
(1) That the hardship from which the applicant seeks relief is due to the unique characteristics of the subject land or structure and not the general characteristics of the surrounding area, and is not due to the physical or economic disability of the applicant (For handicapped access. See section 304.10)
(2) That said hardship is not the result of any prior action of the applicant.
(3) That the granting of the requested variance will not alter the general characteristic of the surrounding area or impair the intent or purpose of this zoning ordinance or the comprehensive plan of the city
(B) Different standards for use and dimensional variances. The board shall, in addition to the above standards, require that evidence be entered into the record of the proceedings showing that:
(1) In granting a use variance, the subject land or structure cannot yield any beneficial use if it is required to conform to the provisions of the zoning ordinance. Nonconforming use of neighboring land or structures in the same district and permitted use of land or structures in an adjacent district shall not be considered grounds for granting a use variance; and
(2) In granting a dimensional variance, that the hardship that will be suffered by the owner of the subject property if the dimensional variance is not granted shall amount to more than a mere inconvenience, meaning that relief sought is minimal to a reasonable enjoyment of the permitted use to which the property is proposed to be devoted. In accordance with unified development review, the Planning Board has the power to grant dimensional variances where the use is permitted by special-use permit.
(C) Special use permit. In granting a special use permit, the board shall require that evidence to [of] the satisfaction of the following standards be entered into the record of the proceedings. The specific and objective criteria below shall apply to all uses listed as "S" in the use table. The Planning Board shall determine which standards apply on a case by case basis:
(1) That the special use is specifically authorized by this ordinance, and setting forth the exact subsection of this ordinance containing the jurisdictional authorization;
(2) That the special use meets all the criteria set forth in the subsection of this ordinance authorizing such special use, and the board shall issue a special use in conjunction with a dimensional variance provided the property:
i. Does not abut or share a common boundary with open space and residentially zoned property; or
ii. Directly abuts the Amtrak Northeast Rail Corridor (NEC), irrespective of the zoning classification of the rail corridor;
iii. That the granting of the special use permit will not alter the general character of the surrounding area;
iv. The intended use does not create a degradation in level of service with respect to traffic circulation;
v. The intended use respects and enhances the architectural character of the surrounding area;
vi. The intended use minimizes light pollution using dark sky techniques;
vii. The intended use minimizes stormwater impacts through utilization of vegetative swales and/or similar bio-retention methods.
viii. The intended use will not exceed local noise regulations.
(D) Special conditions. In granting a variance or special use permit, or in making any determination upon which it is required to pass after public hearing under this ordinance, the board may apply such special conditions that may, in the opinion of the board, be required to promote the intent and purposes of the comprehensive plan of the city and this ordinance. Failure to abide by any special conditions attached to an approval shall constitute a zoning violation. Such 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 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 must be commenced and completed;
(3) Controlling the duration of use or development and the time within which any temporary structure must be removed;
(4) Assuring satisfactory installation and maintenance of required public improvements;
(5) Designating the exact location and nature of development; and
(6) Establishing detailed records by submission of drawings, maps, plats, or specifications.
(E) Waiver of architectural and site design requirements in the village district. In order to avoid undue hardship, waivers of architectural and site design requirements included in section 508.1 may be granted by the zoning board of review after the proposal is reviewed by the administrative officer to the planning board and/or the planning board as development plan review (DPR) and a recommendation is forwarded to the zoning board.
In considering the proposed deviation to the architectural design and development standards as contained in section 508.1 the zoning board shall comply with the standards of relief contained in section 906, and shall also address the following findings.
1. Strict compliance will result in undue hardship and practical difficulties in developing or redeveloping the property.
2. The proposed structure, improvement or development is consistent with the intent of the village district zoning and the deviation will not result in unnecessary adverse impacts and is in harmony with the general area.
3. The proposed use will be consistent with the character of the neighboring land uses within the village district zone.
4. The petitioner explored all reasonable alternatives and the deviation requested represents the least deviation required to remove the hardship.
5. The requested deviation will not be injurious to neighboring properties or to the general welfare of the surrounding community.
6. There is a peculiar characteristics of the property which makes conforming to certain development standards impracticable.
7. The deviation will not result in access driveways or sidewalks that do not provide for safe vehicle or pedestrian circulation.
8. The deviation will not adversely impact off street parking or loading areas.
906.4. Appeals to the zoning board.
(A) Procedure. An appeal to the board from a decision of any other zoning enforcement agency or officer, or of the HDC, may be taken by an aggrieved party. Such appeal shall be taken within 30 days of the date of the recording of the decision of the officer or agency, or within 30 days of the time when the aggrieved party knew or should have known of the action or decision of such officer or agency. The appeal shall be commenced by filing an application with the board, with a copy to the officer or agency from whom the appeal is taken, specifying the ground thereof. The officer or agency from whom the appeal is taken shall forthwith transmit to the board all papers, including any transcript or audiotapes, constituting the record upon which the action appealed from was taken. Notice of the appeal shall also be transmitted to the planning board.
(B) Stay of proceedings. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken certifies to the board, after the appeal shall have been duly filed, that by reason of facts stated in the certificate, a stay would in the officer's opinion cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by a restraining order which may be granted by a court of competent jurisdiction on application thereof and upon notice to the officer from whom the appeal is taken on due cause shown.
(C) Public hearing. The board shall fix a reasonable time for the hearing of the appeal, give public notice thereof, as well as due notice to the parties of interest, as required in G.L. 45-23-69 and decide the same within 20 days of the hearing. The hearing of any appeals shall be at a separate meeting from the hearing of any variance or special use permit applications, although such hearings may be held on the same day or night. At the hearing, any party may appear in person or by agent or by attorney. The officer or a designated individual of the agency, commission, or board from whom the appeal is taken shall appear before the zoning board at the hearing to represent such agency, commission or board. Other members of the agency, commission or board may appear and be heard, but shall not represent the agency, commission or board. The cost of any notice required for the hearing shall be borne by the appellant.
(D) Decisions and records of the board. In exercising its powers in ruling, the board may, in conformity with the provisions of this ordinance, reverse or affirm wholly or partly and may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have the powers of the officer or agency from whom the appeal was taken. All decisions and records of the board respecting appeals shall conform to the provisions of section 903.5 of this ordinance.
(E) [Findings of fact.] The zoning board of review in its decisions on any matter coming before it under this ordinance shall record in its minutes the pertinent and material facts and the reason upon which its decisions are based.
(F) Appeals of decisions of historic district commission. Notwithstanding subsection (D) above, when hearing appeals from the commission decisions, the zoning board of review shall not substitute its own judgment for that of the commission, but must consider the issue upon the finding and the record of the commission. The zoning board of review shall not reverse a commission decision except on a finding of prejudicial procedural error, clear error or lack of support by the weight of the evidence in the record. The zoning board of review shall put all decisions on appeal in writing. The zoning board of review shall articulate and explain the reasons and basis of each decision on the record, and the zoning board of review shall send a copy of the decision to the applicant and to the historic district commission.
(Ord. No. 0-95-42, § I, 12-11-95; Ord. No. O-98-13, § I, 5-18-98; Ord. No. O-00-3, § I, 1-24-00; Ord. No. O-02-15, § I, 7-23-02; Ord. No. O-10-6, § I, 5-18-10; Ord. No. O-11-11, § I, 7-12-11; Ord. No. O-11-18, § I(Exh. A), 10-20-11; Ord. No. O-23-24, § I, 12-20-23)