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Saturday, June 16, 2012

Smith Blasts Platner Putsch

Evelyn Smith files objections with the Town Council
Evelyn Smith
[Editor’s note: the following comments were handed in by Evelyn Smith as an individual, not in her role as Affordable Housing Commission chair, when the public hearing on Ordinance #349 – click here to read more – was suspended on June 11. That hearing is slated to resume on June 25]

Tonight I speak in opposition to the adoption of Ordinance No. 349 in its present form, in that it appears that it:
·        Exceeds authority granted by the state in RIGL 45-24-49 (Zoning) to conduct development plan review of applications for uses requiring a special-use permit, a variance, a zoning ordinance amendment and/or a zoning map change, in that state law requires that in these instances, development plan review by the planning commission “shall be advisory to the Zoning Board of Review.”  The proposed ordinance would confer upon the Planning Commission permitting authority which is currently vested by state law in the Zoning Board of Review.

·        Exceeds authority granted by the state in RIGL 45-24-49 (Zoning) to conduct development plan review of applications for uses permitted by right, in that state law requires that such review “shall only be based on specific and objective guidelines which must be stated in the zoning ordinance.”  The proposed ordinance includes standards for review of some applications by the Town Planner, but does not apply those standards to development plan reviews conducted by the Planning Commission.  The proposed ordinance instead directs that Planning Commission reviews be guided by standards contained in the Subdivision Regulations, and further directs that uses reviewed by the Town Planner shall also be required to meet the standards contained in the Subdivision Regulations.   The proposed ordinance would confer upon the Planning Commission legislative authority to enact development plan review guidelines, which is currently vested by state law in the Town Council through the adoption of the local zoning ordinance. 
·        Exceeds authority granted by the state in RIGL 45-23-27 to make local subdivision regulations applicable in all cases of development plan review  “as provided for in (RIGL) 45-24-49 of the Zoning Enabling Act of 1991, where a municipality has established, within their zoning ordinance, the procedures for planning board review of applications,” in that the proposed ordinance does not comply with RIGL 45-24-49 as previously discussed, and that the proposed ordinance does not establish within the zoning ordinance the procedures for planning board development plan review, including the fees for same. 
·        Is in conflict with its own definition of Land Development Project  (which is, as required by state law, consistent with the definition of same in RIGL 45-24), in that it sends to the Planning Commission, for their review as Major Land Development Projects, projects that do not meet the definition:  “a project in which one or more lots, tracts, or parcels of land are to be developed or redeveloped as a coordinated site for a complex of uses, units, or structures, including, but not limited to, planned development and cluster development for residential, commercial, institutional, industrial, recreational, open space, and/or mixed uses as is permitted by this Ordinance.” (218-5) 
·        Exceeds authority granted by the state in RIGL 45-24-49 (Zoning) by attempting to exercise the authority granted by the state in RIGL 45-24.1 (Historic Area Zoning) in a manner inconsistent with the statutory requirements of 45-24.1, which vests in an appointed Historic District Commission the authority to review the appropriateness of “the general design, arrangement, texture, materials, and siting” of  applications to construct, alter, repair, move or demolish structures within the historic district.  The proposed ordinance would confer upon the Planning Commission historic district review authority currently vested by state law in an Historic District Commission, which the Town has yet to appoint in order to be able to exercise the authority it sought by the creation of Historic Village Overlay Districts.
I also am opposed to the adoption of Ordinance No. 349 in its present form because:

·        It fails to list items which are currently exempted from development plan review, namely, the “construction of one or two family dwellings, ordinary accessory structures and related activities;” and “alterations or additions to an existing residential structure which do not change its nature or use;” These activities should remain clearly exempt from development plan review and not be subject to the possible interpretation by officials or complainants that permitted accessory uses or accessory structures constitute a “non-residential activity.”

·        It also fails to continue to exempt “interior alterations that do not change the nature of use in a commercial or industrial structure.”  This change would prohibit the issuance of a building permit for innocuous modifications to existing business establishments until they have received development plan approvals.  Such an intrusionary position puts our business community and our nonresidential institutions at risk of needless delay and expense, when a quick response to perceived needs may be the difference between survival and extinction.

·        New language, including numerous references to standards contained in the Subdivision Regulations is not identified as a change to the existing ordinance.  An entire section, 218-71E, has been included with no specific notice of its addition.  This section subjects development review by the Planner, remaining in the Zoning Ordinance, to all requirements contained in the Subdivision Regulations.

·        The published ordinance fails to give adequate notice of the nature of the changes to the existing zoning ordinance, and of the impact of removing Planning Commission review to the jurisdiction of the Subdivision Regulations, not the least of which is the difference in fees that would be charged.

For these reasons, I urge the Council not to adopt Ordinance No. 349 as it is presently constituted. 

Respectfully submitted,
Evelyn J. Smith