Old zoning ordinance raises ire

Old zoning ordinance raises ire

New proposed passage of 2006 law brings out opposition

NORTH SMITHFIELD - A zoning ordinance that the Town Council intended to pass in 2006 affecting how the town handles the site plan review for commercial development was been brought back before the current council this month after Town Planner Robert Ericson discovered it was never properly ratified.

"It never went beyond subsidiary motions," Ericson explained. "This is a very unusual situation."

The ordinance, which Ericson says the town has been following since its last appearance before the board some seven years ago, nonetheless brought out heavy criticism last week during a public hearing.

"We don't need to add new layers of regulation," said Gary Ezovski, a town resident who is also chairman of Small Business Administration Economics Summit Regulations Subcommittee and a Rhode Island member of the SBA Regulatory Fairness Board. "I am intensely involved with the regulatory process in Rhode Island. I have grave concern for it."

The ordinance alters Section 17 of the town's zoning law in attempt to "assure safe, orderly and harmonious development of property" by creating a Development Plan Review in which the Planning Board looks for elements such as preservation of resources, open space and public health in building plans. According to the ordinance, the building inspector will not issue a building permit until the Development Review Process is complete when applicable.

With the exception of minor updates and corrections, Ericson said little has changed from the document the council intended to pass in 2006. After the planner discovered that the ordinance had not been properly codified, it was brought back before the Planning Board for review and a current approval.

"There's nothing that changes from what the council passed in 2006. It's the same document," said Council President John Flaherty.

At the second reading of the document on Sept. 16, Flaherty read a letter to the Council objecting to the ordinance from general counsel of the Rhode Island Builder's Association.

"One provision which has caused immediate and grave concern is found in section 17.8.1," the letter stated. "It mandates that all steep slopes above 15 percent as measured over a ten-foot interval shall be preserved as undeveloped open space."

The communication from SBA asserted that the provision violates state law.

"It raises an over-arching question of the constitutionality of automatically removing certain sloped land from an owner, enforcing it to remain undeveloped," the letter stated.

Planning Board Chairman Lucien Benoit also took issue with the document's language regarding slopes.

"We in Rhode Island do not have flat prairie land," said Benoit. "We have hills. To declare land with a slope of 15 percent or greater as unbuildable is not only absurd, but frankly unconstitutional; an equivalent to a taking without just compensation."

Benoit said he voted against the re-adoption of the document when it recently came before the Planning Board, but was overruled by a vote of 3-2.

"The National Marker site on Providence Pike could not be constructed under these regulations, nor could most of the businesses along Industrial Drive," Benoit said.

Ericson and Flaherty, however, questioned that assertion, pointing out that there has been new development along Industrial Drive in recent years.

"I am totally confused what he meant by that," Ericson said. "We had always assumed, even at that time, that this was in effect."

The planner noted that throughout the ordinance, usage of language such as "should" and "to the maximum extent practical" make the document more of a statement of preference than a requirement.

"That says if you can't do it, you don't have to do it," said Ericson. "When the word shall pops up, that's the only thing that's a legal requirement."

"This is a direct response to the comprehensive plan," Ericson said. "The bottom line is you're going to have to find a balance between what you want to encourage people to do and what you actually require."

Speaking as chairman of the Rhode Island Service Corp. of Retired Executives for the Small Business Association, School Committee member George Hemond spoke of multiple businesses that ended up locating outside of North Smithfield because of various regulations, limitations, and tax incentives making other towns in the state more desirable.

"The only thing I ask you to do is think if we're further encumbering business development in this town," said Hemond. "Whether this particular ordinance does that is for you to decide. Just keep small business in mind."

Ezovski pointed out that once the language is codified, Section 17 grows from 6 pages to 34 and even covers details such as landscaping.

"It is not for me, you or anyone else to be telling people where to be planting trees," said Ezovski. "This is wrong. Does the applicant get to say 'I can't afford that?' This is going off the deep end. You're are taking land."

The public hearing and second reading of the ordinance were continued to the council's Oct. 21 meeting.