2022 -- H 7941

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LC005357

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO TOWNS AND CITIES – LOW AND MODERATE INCOME HOUSING

     

     Introduced By: Representatives Shekarchi, Speakman, Potter, Fogarty, Hull, Casimiro,
and Alzate

     Date Introduced: March 07, 2022

     Referred To: House Municipal Government & Housing

     It is enacted by the General Assembly as follows:

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     SECTION 1. Sections 45-53-3 and 45-53-4 of the General Laws in Chapter 45-53 entitled

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"Low and Moderate Income Housing" are hereby amended to read as follows:

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     45-53-3. Definitions.

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     The following words, wherever used in this chapter, unless a different meaning clearly

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appears from the context, have the following meanings:

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     (1) "Affordable housing plan" means a component of a housing element, as defined in §

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45-22.2-4(1), to meet housing needs in a city or town that is prepared in accordance with guidelines

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adopted by the state planning council, and/or to meet the provisions of § 45-53-4(b)(1) and (c).

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     (2) "Approved affordable housing plan" means an affordable housing plan that has been

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approved by the director of administration as meeting the guidelines for the local comprehensive

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plan as promulgated by the state planning council; provided, however, that state review and

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approval, for plans submitted by December 31, 2004, shall not be contingent on the city or town

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having completed, adopted, or amended its comprehensive plan as provided for in § 45-22.2–8, §

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45-22.2–9, or § 45-22.2–12.

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     (3) "Comprehensive plan" means a comprehensive plan adopted and approved by a city or

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town pursuant to chapters 22.2 and 22.3 of this title.

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     (4) "Consistent with local needs" means reasonable in view of the state need for low and

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moderate income housing, considered with the number of low income persons in the city or town

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affected and the need to protect the health and safety of the occupants of the proposed housing or

 

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of the residence of the city or town, to promote better site and building design in relation to the

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surroundings, or to preserve open spaces, and if the local zoning or land use ordinances,

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requirements, and regulations are applied as equally as possible to both subsidized and

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unsubsidized housing. Local zoning and land use ordinances, requirements, or regulations are

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consistent with local needs when imposed by a city or town council after a comprehensive hearing

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in a city or town where:

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     (i) Low or moderate income housing exists which is: (A) in the case of an urban city or

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town which has at least 5,000 occupied year-round rental units and the units, as reported in the

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latest decennial census of the city or town, comprise twenty-five percent (25%) or more of the year-

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round housing units, and is in excess of fifteen percent (15%) of the total occupied year-round

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rental units; or (B) in the case of all other cities or towns, is in excess of ten percent (10%) of the

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year-round housing units reported in the census.

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     (ii) The city or town has promulgated zoning or land use ordinances, requirements, and

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regulations to implement a comprehensive plan which has been adopted and approved pursuant to

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chapters 22.2 and 22.3 of this title, and the housing element of the comprehensive plan provides

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for low and moderate income housing in excess of either ten percent (10%) of the year-round

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housing units or fifteen percent (15%) of the occupied year-round rental housing units as provided

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in subdivision (4)(i).

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     (iii) Multi-family rental apartment units built under a comprehensive permit may be

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calculated towards meeting the requirements of a municipality’s low or moderate income housing

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inventory, as long as the units meet and are in compliance with the provisions of § 45-53-3.1

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     (5) "Infeasible" means any condition brought about by any single factor or combination of

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factors, as a result of limitations imposed on the development by conditions attached to the approval

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of the comprehensive permit, to the extent that it makes it impossible for a public agency, nonprofit

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organization, or limited equity housing cooperative to proceed in building or operating low or

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moderate income housing without financial loss, within the limitations set by the subsidizing

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agency of government, on the size or character of the development, on the amount or nature of the

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subsidy, or on the tenants, rentals, and income permissible, and without substantially changing the

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rent levels and unit sizes proposed by the public agency, nonprofit organization, or limited equity

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housing cooperative.

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     (6) "Letter of eligibility" means a letter issued by the Rhode Island housing and mortgage

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finance corporation in accordance with § 42-55-5.3(a).

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     (7) "Local board" means any town or city official, zoning board of review, planning board

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or commission, board of appeal or zoning enforcement officer, local conservation commission,

 

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historic district commission, or other municipal board having supervision of the construction of

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buildings or the power of enforcing land use regulations, such as subdivision, or zoning laws.

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     (8) "Local review board" means the planning board as defined by § 45-22.2-4(20), or if

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designated by ordinance as the board to act on comprehensive permits for the town, the zoning

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board of review established pursuant to § 45-24-56.

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     (9) "Low or moderate income housing" means any housing whether built or operated by

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any public agency or any nonprofit organization or by any limited equity housing cooperative or

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any private developer, that is subsidized by a federal, state, or municipal government subsidy under

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any program to assist the construction or rehabilitation of housing affordable to low or moderate

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income households, as defined in the applicable federal or state statute, or local ordinance and that

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will remain affordable through a land lease and/or deed restriction for ninety-nine (99) years or

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such other period that is either agreed to by the applicant and town or prescribed by the federal,

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state, or municipal government subsidy program but that is not less than thirty (30) years from

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initial occupancy.

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     (10) "Meeting housing needs" means adoption of the implementation program of an

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approved affordable housing plan and the absence of unreasonable denial of applications that are

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made pursuant to an approved affordable housing plan in order to accomplish the purposes and

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expectations of the approved affordable housing plan.

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     (11) "Municipal government subsidy" means assistance that is made available through a

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city or town program sufficient to make housing affordable, as affordable housing is defined in §

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42-128-8.1(d)(1); such assistance may include, but is not limited to, direct financial support,

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abatement of taxes, waiver of fees and charges, and approval of density bonuses and/or internal

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subsidies, and any combination of forms of assistance.

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     45-53-4. Procedure for approval of construction of low or moderate income housing.

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     (a) Any applicant proposing to build low or moderate income housing may submit to the

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local review board a single application for a comprehensive permit to build that housing in lieu of

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separate applications to the applicable local boards. This procedure is only available for proposals

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in which at least twenty-five percent (25%) of the housing is low or moderate income housing. The

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application and review process for a comprehensive permit shall be as follows:

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     (1) Submission requirements. Applications for a comprehensive permit shall include:

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     (i) A letter of eligibility issued by the Rhode Island housing mortgage finance corporation,

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or in the case of projects primarily funded by the U.S. Department of Housing and Urban

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Development or other state or federal agencies, an award letter indicating the subsidy, or

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application in such form as may be prescribed for a municipal government subsidy; and

 

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     (ii) A written request to the local review board to submit a single application to build or

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rehabilitate low or moderate income housing in lieu of separate applications to the applicable local

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boards. The written request shall identify the specific sections and provisions of applicable local

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ordinances and regulations from which the applicant is seeking relief; and

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     (iii) A proposed timetable for the commencement of construction and completion of the

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project; and

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     (iv) A sample land lease or deed restriction with affordability liens that will restrict use as

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low and moderate income housing in conformance with the guidelines of the agency providing the

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subsidy for the low and moderate income housing, but for a period of not less than thirty (30) years;

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and

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     (v) Identification of an approved entity that will monitor the long-term affordability of the

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low and moderate income units; and

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     (vi) A financial pro-forma for the proposed development; and

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     (vii) For comprehensive permit applications: (A) not involving major land developments

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or major subdivisions including, but not limited to, applications seeking relief from specific

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provisions of a local zoning ordinance, or involving administrative subdivisions, minor land

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developments or minor subdivisions, or other local ordinances and regulations: those items required

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by local regulations promulgated pursuant to applicable state law, with the exception of evidence

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of state or federal permits; and for comprehensive permit applications; and (B) involving major

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land developments and major subdivisions, unless otherwise agreed to by the applicant and the

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town; those items included in the checklist for the master plan in the local regulations promulgated

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pursuant to § 45-23-40. Subsequent to master plan approval, the applicant must submit those items

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included in the checklist for a preliminary plan for a major land development or major subdivision

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project in the local regulations promulgated pursuant to § 45-23-41, with the exception of evidence

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of state or federal permits. All required state and federal permits must be obtained prior to the final

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plan approval or the issuance of a building permit; and

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     (viii) Municipalities may impose fees on comprehensive permit applications that are

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consistent with but do not exceed fees that would otherwise be assessed for a project of the same

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scope and type but not proceeding under this chapter, provided, however, that the imposition of

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such fees shall not preclude a showing by a non-profit applicant that the fees make the project

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financially infeasible; and

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     (xi) Notwithstanding the submission requirements set forth above, the local review board

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may request additional, reasonable documentation throughout the public hearing, including, but not

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limited to, opinions of experts, credible evidence of application for necessary federal and/or state

 

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permits, statements and advice from other local boards and officials.

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     (2) Certification of completeness. The application must be certified complete or incomplete

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by the administrative officer according to the provisions of § 45-23-36; provided, however, that for

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a major land development or major subdivision, the certificate for a master plan shall be granted

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within thirty (30) days and for a preliminary plan shall be granted within forty-five (45) days. The

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running of the time period set forth herein will be deemed stopped upon the issuance of a certificate

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of incompleteness of the application by the administrative officer and will recommence upon the

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resubmission of a corrected application by the applicant. However, in no event will the

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administrative officer be required to certify a corrected submission as complete or incomplete less

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than fourteen (14) days after its resubmission. If the administrative officer certifies the application

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as incomplete, the officer shall set forth in writing with specificity the missing or incomplete items.

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     (3) Pre-application conference. Where the comprehensive permit application proposal is a

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major land development project or a major subdivision pursuant to chapter 23 of this title a

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municipality may require an applicant proposing a project under this chapter to first schedule a pre-

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application conference with the local review board, the technical review committee established

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pursuant to § 45-23-56, or with the administrative officer for the local review board and other local

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officials, as appropriate. To request a pre-application conference, the applicant shall submit a short

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description of the project in writing including the number of units, type of housing, as well as a

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location map. The purpose of the pre-application conference shall be to review a concept plan of

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the proposed development. Upon receipt of a request by an applicant for a pre-application

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conference, the municipality has thirty (30) days to schedule and hold the pre-application

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conference. If thirty (30) days has elapsed from the filing of the pre-application submission and no

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pre-application conference has taken place, nothing shall be deemed to preclude an applicant from

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thereafter filing and proceeding with an application for a comprehensive permit.

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     (4) Review of applications. An application filed in accordance with this chapter shall be

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reviewed by the local review board at a public hearing in accordance with the following provisions:

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     (i) Notification. Upon issuance of a certificate of completeness for a comprehensive permit,

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the local review board shall immediately notify each local board, as applicable, of the filing of the

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application, by sending a copy to the local boards and to other parties entitled to notice of hearings

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on applications under the zoning ordinance and/or land development and subdivision regulations

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as applicable.

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     (ii) Public Notice. Public notice for all public hearings will be the same notice required

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under local regulations for a public hearing for a preliminary plan promulgated in accordance with

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§ 45-23-42. The cost of notice shall be paid by the applicant.

 

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     (iii) Review of minor projects. The review of a comprehensive permit application involving

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only minor land developments or minor subdivisions or requesting zoning ordinance relief or relief

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from other local regulations or ordinances not otherwise addressed in this subsection, shall be

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conducted following the procedures in the applicable local regulations, with the exception that all

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minor land developments or minor subdivisions under this section are required to hold a public

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hearing on the application, and within ninety-five (95) days of issuance of the certificate of

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completeness, or within such further time as is agreed to by the applicant and the local review

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board, render a decision.

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     (iv) Review of major projects. In the review of a comprehensive permit application

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involving a major land development and/or major subdivision, the local review board shall hold a

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public hearing on the master plan and shall, within one hundred and twenty (120) days of issuance

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of the certification of completeness, or within such further amount of time as may be agreed to by

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the local review board and the applicant, render a decision. Preliminary and final plan review shall

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be conducted according to local regulations promulgated pursuant to chapter 23 of this title except

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as otherwise specified in this section.

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     (v) Required findings. In approving on an application, the local review board shall make

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positive findings, supported by legally competent evidence on the record which discloses the nature

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and character of the observations upon which the fact finders acted, on each of the following

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standard provisions, where applicable:

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     (A) The proposed development is consistent with local needs as identified in the local

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comprehensive community plan with particular emphasis on the community's affordable housing

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plan and/or has satisfactorily addressed the issues where there may be inconsistencies.

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     (B) The proposed development is in compliance with the standards and provisions of the

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municipality's zoning ordinance and subdivision regulations, and/or where expressly varied or

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waived local concerns that have been affected by the relief granted do not outweigh the state and

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local need for low and moderate income housing.

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     (C) All low and moderate income housing units proposed are integrated throughout the

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development; are compatible in scale and architectural style to the market rate units within the

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project; and will be built and occupied prior to, or simultaneous with the construction and

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occupancy of any market rate units.

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     (D) There will be no significant negative environmental impacts from the proposed

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development as shown on the final plan, with all required conditions for approval.

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     (E) There will be no significant negative impacts on the health and safety of current or

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future residents of the community, in areas including, but not limited to, safe circulation of

 

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pedestrian and vehicular traffic, provision of emergency services, sewerage disposal, availability

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of potable water, adequate surface water run-off, and the preservation of natural, historical or

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cultural features that contribute to the attractiveness of the community.

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     (F) All proposed land developments and all subdivisions lots will have adequate and

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permanent physical access to a public street in accordance with the requirements of § 45-23-60(5).

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     (G) The proposed development will not result in the creation of individual lots with any

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physical constraints to development that building on those lots according to pertinent regulations

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and building standards would be impracticable, unless created only as permanent open space or

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permanently reserved for a public purpose on the approved, recorded plans.

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     (vi) The local review board has the same power to issue permits or approvals that any local

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board or official who would otherwise act with respect to the application, including, but not limited

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to, the power to attach to the permit or approval, conditions, and requirements with respect to

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height, site plan, size, or shape, or building materials, as are consistent with the terms of this section.

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     (vii) In reviewing the comprehensive permit request, the local review board may deny the

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request for any of the following reasons: (A) if city or town has an approved affordable housing

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plan and is meeting housing needs, and the proposal is inconsistent with the affordable housing

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plan; (B) the proposal is not consistent with local needs, including, but not limited to, the needs

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identified in an approved comprehensive plan, and/or local zoning ordinances and procedures

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promulgated in conformance with the comprehensive plan; (C) the proposal is not in conformance

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with the comprehensive plan; (D) the community has met or has plans to meet the goal of ten

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percent (10%) of the year-round units or, in the case of an urban town or city, fifteen percent (15%)

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of the occupied rental housing units as defined in § 45-53-3(2)(i) being low and moderate income

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housing; or (E) concerns for the environment and the health and safety of current residents have

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not been adequately addressed.

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     (viii) All local review board decisions on comprehensive permits shall be by majority vote

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of the membership of the board and may be appealed by the applicant to the state housing appeals

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board.

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     (ix) If the public hearing is not convened or a decision is not rendered within the time

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allowed in subsection (a)(4)(iii) and (iv), the application is deemed to have been allowed and the

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relevant approval shall issue immediately; provided, however, that this provision shall not apply to

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any application remanded for hearing in any town where more than one application has been

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remanded for hearing provided for in § 45-53-6(f)(2).

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     (x) Any person aggrieved by the issuance of an approval may appeal to the superior court

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within twenty (20) days of the issuance of approval.

 

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     (xi) A comprehensive permit shall expire unless construction is started within twelve (12)

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months and completed within sixty (60) months of final plan approval unless a longer and/or phased

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period for development is agreed to by the local review board and the applicant. Low and moderate

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income housing units shall be built and occupied prior to, or simultaneous with the construction

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and occupancy of market rate units.

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     (xii) A town with an approved affordable housing plan and that is meeting local housing

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needs may by council action limit the annual total number of dwelling units in comprehensive

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permit applications from for-profit developers to an aggregate of one percent (1%) of the total

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number of year-round housing units in the town, as recognized in the affordable housing plan and

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notwithstanding the timetables set forth elsewhere in this section, the local review board shall have

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the authority to consider comprehensive permit applications from for-profit developers, which are

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made pursuant to this paragraph, sequentially in the order in which they are submitted.

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     (xiii) The local review board of a town with an approved affordable housing plan shall

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report the status of implementation to the housing resources commission, including the disposition

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of any applications made under the plan, as of June 30, 2006, by September 1, 2006 and for each

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June 30 thereafter by September 1 through 2010. The housing resources commission shall prepare

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by October 15 and adopt by December 31, a report on the status of implementation, which shall be

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submitted to the governor, the speaker, the president of the senate and the chairperson of the state

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housing appeals board, and shall find which towns are not in compliance with implementation

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requirements.

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     (xiv) Notwithstanding the provisions of § 45-53-4 in effect on February 13, 2004, to

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commence hearings within thirty (30) days of receiving an application remanded by the state

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housing appeals board pursuant to § 45-53-6(f)(2) shall be heard as herein provided; in any town

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with more than one remanded application, applications may be scheduled for hearing in the order

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in which they were received, and may be taken up sequentially, with the thirty (30) day requirement

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for the initiation of hearings, commencing upon the decision of the earlier filed application.

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     (b)(1) The general assembly finds and declares that in January 2004 towns throughout

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Rhode Island have been confronted by an unprecedented volume and complexity of development

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applications as a result of private for-profit developers using the provisions of this chapter and that

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in order to protect the public health and welfare in communities and to provide sufficient time to

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establish a reasonable and orderly process for the consideration of applications made under the

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provisions of this chapter, and to have communities prepare plans to meet low and moderate income

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housing goals, that it is necessary to impose a moratorium on the use of comprehensive permit

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applications as herein provided by private for-profit developers; a moratorium is hereby imposed

 

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on the use of the provisions of this chapter by private for-profit developers, which moratorium shall

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be effective on passage and shall expire on January 31, 2005 and may be revisited prior to expiration

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and extended to such other date as may be established by law. Notwithstanding the provisions of

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subsection (a) of this section, private for-profit developers may not utilize the procedure of this

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chapter until the expiration of the moratorium.

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     (2) No for-profit developer shall submit a new application for comprehensive permits until

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July 1, 2005, except by mutual agreement with the local review board.

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     (3) Notwithstanding the provisions of subdivision (b)(2) of this section, a local review

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board in a town which has submitted a plan in accordance with subsection (c) of this section, shall

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not be required to accept an application for a new comprehensive permit from a for-profit developer

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until October 1, 2005.

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     (c) Towns and cities that are not in conformity with the provisions of § 45-53-3(2)(i) shall

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prepare by December 31, 2004, a comprehensive plan housing element for low and moderate

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income housing as specified by § 45-53-3(2)(ii), consistent with applicable law and regulation.

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That the secretary of the planning board or commission of each city or town subject to the

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requirements of this paragraph shall report in writing the status of the preparation of the housing

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element for low and moderate income housing on or before June 30, 2004, and on or before

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December 31, 2004, to the secretary of the state planning council, to the chair of the house

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committee on corporations and to the chair of the senate committee on commerce, housing and

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municipal government. The state housing appeals board shall use said plan elements in making

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determinations provided for in § 45-53-6(b)(2).

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     (d) If any provision of this section or the application thereof shall for any reason be judged

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invalid, such judgment shall not affect, impair, or invalidate the remainder of this section or of any

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other provision of this chapter, but shall be confined in its effect to the provision or application

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directly involved in the controversy giving rise to the judgment, and a moratorium on the

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applications of for-profit developers pursuant to this chapter shall remain and continue to be in

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effect for the period commencing on the day this section becomes law [February 13, 2004] and

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continue until it shall expire on January 31, 2005, or until amended further.

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     (e) In planning for, awarding and otherwise administering programs and funds for housing

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and for community development, state departments, agencies, boards and commissions, public

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corporations, as defined in chapter 18 of title 35, shall among the towns subject to the provision of

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§ 45-53-3(ii) give priority to the maximum extent allowable by law, to towns with an approved

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affordable housing plan. The director of administration shall adopt not later than January 31, 2005,

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regulations to implement the provisions of this section.

 

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     (f) Multi-family rental apartment units built under a comprehensive permit may be

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calculated towards meeting the requirements of a municipality’s low or moderate income housing

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inventory, as long as the units meet and are in compliance with the provisions of § 45-53-3.1.

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     SECTION 2. Chapter 45-53 of the General Laws entitled "Low and Moderate Income

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Housing" is hereby amended by adding thereto the following section:

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     45-53-3.1. Formula to include multi-family rental apartment units as low and

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moderate income housing.

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     (a) In calculating the number of year-round housing units towards meeting the goals of an

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excess of ten percent (10%) of the year-round housing units or an excess of fifteen percent (15%)

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of the total year-round rental units consistent with local needs required pursuant to § 45-53-4, multi-

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family rental apartments in multi-family housing built under a comprehensive plan pursuant to §

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45-53-4 may be included as low or moderate income housing, provided the following conditions

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are met:

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     (1) That at least twenty-five percent (25%) of the units created are deed restricted for

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households earning not more than sixty percent (60%) of the area median income; and

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     (2) The proposed units are built as part of a comprehensive plan as provided for in § 45-

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53-4 and are otherwise in compliance and meet all other requirements of this chapter to be

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calculated as low or moderate-income housing.

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     (b) As used in this section and as applied to this chapter:

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     (1) "Area median income (AMI)" means area median household income as defined by the

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U.S. Department of Housing and Urban Development, adjusted for household size.

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     (2) "Multi-family housing'' means a building with three (3) or more residential dwelling

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units or two (2) or more buildings on the same lot with more than one residential dwelling unit in

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each building.

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     SECTION 3. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES – LOW AND MODERATE INCOME HOUSING

***

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     This act would permit multi-family rental apartment units to be built as part of a

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comprehensive plan and to be included in the calculation of low or moderate income housing.

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     This act would take effect upon passage.

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