RAPID/Roadmap/1-RI-b
Rhode Island Unified Land Development Variance-Special Use Permit (1-RI-b)
Unified Land Development Variance-Special Use Permit Process
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1-RI-b.1 – Unified Development Review Request for Variance/ Special Use Permit
Minor Land-Development Projects
Requests for a variance or special-use permit related to minor land-development projects must be submitted to the applicable local authority as part of the application materials during the preliminary plan stage of review. tit. 45 R.I. Gen Laws § 23-50.1(b)(1).
Major Land-Development Projects
Requests for variance and/or special-use permits related to major land-development projects must be submitted to the local planning board or commission as part of the application materials during the master plan stage of review. tit. 45 R.I. Gen Laws § 23-50.1(b)(2).
Following the master plan stage of review, a developer may request alteration of any new variance and/or special-use permit granted by the planning board or commission during the master plan stage of review. tit. 45 R.I. Gen Laws § 23-50.1(b)(3). A developer may also request any new variance and/or special-use permit based on necessity in crafting a more detailed preliminary plan. tit. 45 R.I. Gen Laws § 23-50.1(b)(3). If a developer submits new requests for variance and/or special use permit, the developer must submit those requests and all supporting documentation with the preliminary plan application materials. tit. 45 R.I. Gen Laws § 23-50.1(b)(3).
1-RI-b.2 to 1-RI-b.3 – Review Application Materials for Completeness
The local authority reviews the variance/special-use permit request for technical and administrative completeness.
1-RI-b.4 to 1-RI-b.6 – Provide Public Notice of Public Hearing
The local authority must hold a public hearing on all land-development applications that include requests for variance and/or special-use permit. tit. 45 R.I. Gen Laws § 23-50.1(c).
Prior to initiating a public hearing, the local authority must issue notice of the public hearing pursuant to tit. 45 R.I. Gen Laws § 23-42(b). The local authority must provide public notice of the hearing on land-development applications in a local newspaper of general circulation at least fourteen (14) days prior to the date of the hearing. tit. 45 R.I. Gen Laws § 23-42(b). The public notice must indicate the variance and/or special-use permits being considered in the land-development application. tit. 45 R.I. Gen Laws § 23-42(c)(3).
The local authority must also provide the developer, impacted real property owners, and impacted conservation rights-holders notice of the public hearing not less than ten (10) days prior to the hearing. tit. 45 R.I. Gen Laws § 23-42(b).
If a proposed land development project extends into an adjacent municipality, has the potential for significant negative impact on an adjacent municipality, or notice of the project extends into an adjacent municipality, the local authority must send notice to the impacted adjacent municipality. tit. 45 R.I. Gen Laws § 23-42(c).
If a proposed land development project impacts a watershed, notice of the project must be sent pursuant to tit. 45 R.I. Gen Laws § 23-53(b)-(c).
1-RI-b.7 to 1-RI-b.8 – Review Application for Approval
In determining whether to grant a variance and special-use permit, if the special-use could not exist without the requested variance, the applicable local authority must consider the special-use permit and the variance together to determine whether granting the special-use permit is appropriate. The applicable local authority must consider the requirements for establishing the need for a variance in determining whether to grant a special-use permit. tit. 45 R.I. Gen Laws § 24-42(c).
Request for Variance
In determining whether to grant or deny a variance, local authority requires the developer to establish that:
- The hardship from which the developer seeks relief is due to the unique characteristics of the land or structure and not the general characteristics of the surrounding area;
- The hardship is not a result of the developer’s prior action;
- The variance is not requested purely for financial gain;
- Granting the variance will not alter the general character of the surrounding area or impair the purpose of the zoning ordinance or comprehensive land use plan;
- The variance requested is narrowly tailored; and
- The subject land or structure of a request for a use variance conforms to local ordinances; and
- The request for a dimensional variance is based on more than mere inconvenience.
tit. 45 R.I. Gen Laws § 24-41(d)-(e).
The local authority must enter a decision on the variance and/or special-use permit by the end of the review period (master plan or preliminary plan) during which the request for variance and/or special-use permit was submitted. tit. 45 R.I. Gen Laws § 23-50.1(b)(4).
1-RI-b.9 – Approved Variance/ Special-Use Permit
In granting a variance and/or special-use permit, the applicable local authority may apply conditions to the permit necessary to promote the intent and purposes of the local zoning ordinance or comprehensive land use plan. tit. 45 R.I. Gen Laws § 24-43.
Conditions on variance or special-use permits may include, but are not limited to:
- Minimizing the adverse impact of the development upon other land;
- Controlling the sequence of development, including commencement and completion dates;
- Controlling the duration development;
- Designating the location and nature of development; and
- Establishing detailed records of submission.
tit. 45 R.I. Gen Laws § 24-43(1)-(6).
1-RI-b.10 to 1-RI-b.11 – Appeal Decision (If Applicable)
Local Board of Appeal
Any person aggrieved by a local authority decision may appeal that decision to the local board of appeal. tit. 45 R.I. Gen Laws § 23-66(a).
Upon reviewing the decision on appeal, the local board of appeal may consider those elements of the approval or disapproval omitted from the decision. tit. 45 R.I. Gen Laws § 23-66(a).
Any person aggrieved by a local board of appeal decision may appeal the decision to the superior court in which the municipality is located. tit. 45 R.I. Gen Laws § 23-66(b).
Zoning Board of Review
Under tit. 45 R.I. Gen Laws § 24-64, any party aggrieved by a determination by any other zoning authority (alternative zoning authority) may appeal that decision to the zoning board of review. To appeal a determination of an alternative zoning authority with the zoning board of review, the aggrieved party (developer) must file a notice of appeal, specifying grounds for the appeal, with the alternative zoning authority. The aggrieved party must also file a notice of appeal with the appropriate planning board or commission. Upon receipt of notice of the appeal, the alternative zoning authority must immediately transmit a copy of the record of decision that is the subject of the appeal to the zoning board of review. tit. 45 R.I. Gen Laws § 24-64.
If the aggrieved party (developer) appeals a decision to the zoning board of review, the zoning board of review must hold a public hearing on the appeal. The zoning board of review must give public notice of the hearing on appeal at least fourteen (14) days prior to the date of the hearing. tit. 45 R.I. Gen Laws § 24-66. The zoning board of review must send individual notice of the hearing to the appellant and any other impacted real property owner or conservation easement rights-holder. tit. 45 R.I. Gen Laws § 24-66. Any party may appear at the public hearing on appeal. tit. 45 R.I. Gen Laws § 24-66.
Upon considering a decision on appeal, the zoning board of review may reverse, affirm, or modify an order, requirement, or decision. tit. 45 R.I. Gen Laws § 24-68. The zoning board of review must post its decision in a location visible to the public for a period of twenty (20) days (period of appeal) following the recording of the decision. tit. 45 R.I. Gen Laws § 24-69(a).
1-RI-b.12 – Appeal Decision to Rhode Island Superior Court (If Applicable)
Under tit. 45 R.I. Gen Laws § 24-63(b), any party aggrieved by a zoning board of review decision make file an appeal with the superior court for the county in which the municipality is located. An aggrieved party (developer) may appeal a zoning board of review decision within twenty (20) days following the recording of that decision with the city or town clerk. tit. 45 R.I. Gen Laws § 24-69(a).
Upon appealing a decision of a zoning board of review, the aggrieved party must mail individual notice of the appeal to impacted real property owners and conservation easement rights-holders within ten (10) days of filing the appeal. tit. 45 R.I. Gen Laws § 24-69.1(b).
Proper notice of the appeal must include the following information:
- The caption and civil action number of the case;
- Date the case was filed in superior court;
- County in which the appeal was filed;
- Contact information of the attorney filing the appeal on behalf of the aggrieved party, or the contact information of the aggrieved party if unrepresented by counsel;
- Language clearly stating that the appeal has been filed in superior court;
- Language clearly stating that the aggrieved party will serve the named defendants;
- Language clearly stating that the persons receiving notice may participate in the appeal; and the
- Date of the notice. tit. 45 R.I. Gen Laws § 24-69.1(c).
Within twenty (20) days of sending notice, the aggrieved party must file an affidavit with the court certifying:
- A complete list of all the names and addresses of the intended recipients of the notice of the hearing;
- The date the notice was sent;
- That the notice was sent properly;
- A list of notices that were returned to the return address; and that all other notices have not been returned; and
- A copy of the notice form.
tit. 45 R.I. Gen Laws § 24-69.1(d).
The aggrieved party must serve the zoning board of review with a copy of the complaint. Within thirty (30) days of receiving of a copy of the complaint, the zoning board of review must file either the original, or certified copy, of the original record of the case appealed from. tit. 45 R.I. Gen Laws § 24-69(a). If the appeal is filed by an entity that was not a party to the original case, the zoning board of review and the original applicant (developer) or appellant are made parties to the appeal proceedings. tit. 45 R.I. Gen Laws § 24-69(a).
Upon considering the decision on appeal, the court may affirm, remand, reverse, or modify the decision upon determining that the decision was made:
- In violation of constitutional, statutory, or ordinance provisions;
- In excess of the zoning board of review’s authority;
- Upon unlawful procedure;
- In an error of law;
- In clear error based on the probative and substantial evidence of the record; or
- Arbitrarily, capriciously, or in an abuse of discretion. tit. 45 R.I. Gen Laws § 24-69(d).
1-RI-b.13 to 1-RI-b.14 – Appeal Decision to the Public Utilities Commission (If Applicable)
Under tit. 39 R.I. Gen. Laws § 1-30, any aggrieved party may appeal any municipal zoning determination regarding the placement, erection, and maintenance of any utility building, equipment, or structure to the Commission within ten (10) days of the municipal zoning authority’s notice of decision. Upon review, the Commission may affirm, revoke, or modify such municipal zoning authority determinations.
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