Variances

[Amended 5-15-2000 by Ch. No. 1300; 2-10-2003 by Ch. No. 1432; 9-21-2020 by Ch. No. 1995; 10-26-2020 by Ch. No. 1997]

• A. Application.
  • (1) An application for relief from the literal requirements of a Zoning Ordinance because of hardship may be made by any person, group, agency or corporation with a legal interest in the land to which it applies by filing in the office of the Zoning Official an application describing the request, together with the pertinent application fee.
  • (2) The form and such data and/or evidence which comprise such an application shall be as set forth in forms provided by the Zoning Official.
    • (a) The Zoning Official shall have the authority to waive submission of any portion of the application. The Zoning Official's decision to waive submission of any portion of the application, or to deny a request to waive any required submission, may be appealed in accord with Article VIII, Appeals, of the Zoning Ordinance.
    • (b) Each application for a variance shall, at a minimum, require the following items be submitted:
      • [1] The original application and 10 copies of a site plan prepared by and signed and stamped by a land use design professional, such as a professional engineer, land surveyor or architect licensed in the State of Rhode Island and to the extent allowed by their professional license, at a scale of not less than one inch equals 40 feet, clearly showing the following:
        • [a] Name and address of property owner(s);
        • [b] Date, North arrow, graphic scale, lot dimensions and area in square feet or acres;
        • [c] Plat and lot, zoning district(s) and front, side and rear yard setbacks;
        • [d] Existing and proposed structures, and their relationship and distances from lot boundary lines;
        • [e] FEMA flood hazard zone, wetlands and coastal features boundaries, if present;
        • [f] Existing and proposed topography at two-foot intervals;
        • [g] Existing and proposed driveways, parking areas and walkways;
        • [h] Existing and proposed landscaping, as it relates to the request;
        • [i] Existing streets, 911 address, wells, septic system; and
        • [j] Any peculiar site conditions or features.
      • [2] List of names and addresses of all property owners within 200 feet of the subject property, and 10 copies of a separate map showing all property owners within 200 feet of the subject property and/or all those property owners and entities that require notice under R.I.G.L. § 45-24-53, also depicting any zone district boundary and uses of all neighboring properties;
      • [3] Letter from a biologist indicating that there are no coastal or freshwater wetlands on or in proximity to the site. In cases where the application is regulated by the Rhode Island Freshwater Wetlands Act or the Rhode Island Coastal Resources Management Council ("CRMC"), a physical alteration permit issued by the Rhode Island Department of Environmental Management ("RIDEM") and, where applicable, the United States Army Corps of Engineers shall be required;
      • [4] Where construction requires approval by RIDEM Office of Water Resources for an OWTS (on-site wastewater treatment system) or change of use permit for the proposed activity, attach a copy of the required application;
      • [5] Soil erosion and stormwater control plan with supporting calculation based on standards approved by the USDA Natural Resources Conservation Service and in conformity with the Rhode Island Erosion and Sediment Control Handbook;
      • [6] Traffic study prepared by a professional engineer addressing the potential impacts of the proposed activity; and
      • [7] Evidence that there is sufficient water supply to support the proposed activity and that this supply is of drinking water quality.
    • (c) Each application form for a variance shall, at a minimum, require the following:
      • [1] Name and address of applicant, property owner, and lessee;
      • [2] Location of the lot given as the street address, tax assessor's plat and lot number, and 911 address;
      • [3] Zoning district the lot is located in;
      • [4] Dimensions of the lot, in feet, to include frontage, depth, and area;
      • [5] Present and proposed use of the lot;
      • [6] Identification of all structures on the lot, including their size in feet;
      • [7] How long the current owner has owned the lot;
      • [8] The year that the lot was platted and recorded;
      • [9] Whether the owner or applicant has received a Notice of Violation for this or any property in the Town of Westerly and the status of that alleged violation. If a Notice of Violation was issued, a copy is to be attached to the application;
      • [10] Whether you have submitted plans related to this request to the Zoning Official;
      • [11] Whether you have requested a permit related to this request and if so whether the permit has been refused. If the permit request was refused, a copy of the written denial is to be attached;
      • [12] The number of families to reside on the lot;
      • [13] A description of the proposed alterations;
      • [14] Identification of the section of the Zoning Ordinance under which this application is filed;
      • [15] A specific identification of the relief sought;
      • [16] A specific statement of the grounds for which the relief is sought;
      • [17] Identification of, and explanation for, the application submission(s) that the applicant seeks to have waived;
      • [18] The application is to be signed by the applicant or owner.
  • (3) Upon receipt of a completed application and all required submissions, the Zoning Official shall:
    • (a) Transmit a copy to the Zoning Board and Town Planner;
    • (b) Order the matter for advertisement in accord with the Rhode Island General Laws and Zoning Ordinance for the next practicable meeting of the Zoning Board; and
    • (c) Notify the applicant that the application has been determined complete and the date it is scheduled to be heard by the Zoning Board.
  • (4) The Zoning Board shall have the authority to require additional materials reasonably related to its analysis of the application.
• B. Planning Board recommendations. The Zoning Board and/or Zoning Official may request that the Planning Board and/or Town Planner report its findings and recommendations, including a statement on the general consistency of the application with the goals and policies of the Comprehensive Plan of the Town of Westerly. The Planning Board or Town Planner's recommendation shall be in writing and submitted within 30 days of receipt of the request.
• C. Notice and hearing. The Zoning Board shall hold a public hearing on any application for variance in an expeditious manner after receipt in proper form of a complete application, and shall give public notice thereof of at least 14 days prior to the date of the hearing in a newspaper of general circulation in the Town. Notice of hearing shall be sent by the applicant by first-class mail, postage prepaid, to all owners of real property or other entities which would require notice under R.I.G.L. 45-24-53 at least 14 days prior to the date of the hearing. Notice shall be sent to the last known mailing address as shown on the current real estate tax assessment records, and if such address is different from the property address, also to said property address by first-class mail, postage prepaid. Said notice shall include the street address of the property for which the variance is sought. Prior to the hearing, the applicant or its legal representative shall file with the Board a notarized affidavit that the notice provisions have been satisfied. The cost of notification shall be borne by the applicant.
• D. In granting a variance, the Zoning Board shall require that evidence satisfying 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 to the general characteristics of the surrounding area; and is not due to a physical or economic disability of the applicant;
  • (2) That the hardship is not the result of any prior action of the applicant and does not result primarily from the desire of the applicant to realize greater financial gain;
  • (3) That the granting of the requested variance will not alter the general character of the surrounding area or impair the intent or purpose of the Zoning Ordinance or the Comprehensive Plan upon which this chapter is based; and
  • (4) That the relief to be granted is the least relief necessary.
• E. The Zoning Board shall, in addition to the above standards, require that evidence be entered into the record of the proceedings 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 lands or structures in an adjacent district shall not be considered in 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. The fact that a use may be more profitable or that a structure may be more valuable after the relief is granted shall not be grounds for relief.
• F. Expiration of variance approval. Any variance granted under the provisions of this chapter shall become void unless the work authorized by said variance shall have commenced nine months after the granting of the variance by the Zoning Board of Review and shall be substantially complete within two years of the commencement of the date of construction; provided, further, that such variance shall be void if the work authorized by said variance is suspended or abandoned for a period of six months after the time such work was commenced. Said nine-month period shall not include time taken for the issuance of required state permits or approvals when evidence exists demonstrating that applications for such permits and/or approvals have been timely made and are pending.
• G. Unless otherwise stated in this chapter, the Zoning Board of Review may issue a dimensional variance in conjunction with a special use permit. If the special use could not exist without the dimensional variance, the Zoning Board shall consider the special use permit and the dimensional variance together to determine if granting the special use is appropriate based on both the special use criteria and the dimensional variance evidentiary standards.