Chapter 139

2005 -- H 6590 SUBSTITUTE A AS AMENDED

Enacted 06/30/05

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- HOUSING

Introduced By: Representatives Kennedy, Lally, Lewiss, Singleton, and Petrarca

Date Introduced: June 14, 2005

It is enacted by the General Assembly as follows:

SECTION 1. Section 42-113-11 of the General Laws in Chapter 42-113 entitled "Rhode

Island Housing and Conservation Trust Fund Act" is hereby amended to read as follows:

42-113-11. Commission-housing and conservation trust study commission. -- (a)

There is hereby created a "Housing and Conservation Trust Study Commission" with thirteen

(13) members as follows: the presiding officer, or the designee of the presiding officer, of the

Audubon Society of Rhode Island, Church Community Housing Corporation, Grow Smart Rhode

Island, the Housing Network, the Rhode Island Association of Realtors, the Rhode Island

Association of Public Housing Authorities, the Rhode Island Builders Association, the Rhode

Island Chapter of the American Planning Association, the Rhode Island Council of Land Trusts,

the Rhode Island Housing and Mortgage Finance Corporation, the Rhode Island Housing

Resources Commission, the Rhode Island League of Cities and Towns, and The Nature

Conservancy. The representative of Grow Smart Rhode Island shall call the organizational

meeting of the commission, and the commission shall elect from its members a chairperson, a

vice chairperson and a secretary.

(b) The purposes of the commission shall be:

(1) To study the potential contribution of land trust mechanisms to the development of

low and moderate income housing, to evaluate appropriate organization structures and financing

mechanisms for such land trusts in Rhode Island, and assess the potential and viability of the

housing and conservation trust fund established by this chapter; and

(2) To report its findings and recommendations to the governor, the speaker of the house

and the senate president by February 1, ~~2005~~ 2006.

SECTION 2. Section 42-128-8.1 of the General Laws in Chapter 42-128 entitled "Rhode

Island Housing Resources Act of 1998" is hereby amended to read as follows:

42-128-8.1. Housing production and rehabilitation. -- (a) Short title. - This section

shall be known and may be cited as the "Comprehensive Housing Production and Rehabilitation

Act of 2004."

(b) Findings. - The general assembly finds and declares that:

(1) The state must maintain a comprehensive housing strategy applicable to all cities and

towns that addresses the housing needs of different populations including, but not limited to,

workers and their families who earn less than one hundred twenty percent (120%) of median

income, older citizens, students attending institutions of higher education, low and very low

income individuals and families, and vulnerable populations including, but not limited to, persons

with disabilities, homeless individuals and families, and individuals released from correctional

institutions.

(2) Efforts and programs to increase the production of housing must be sensitive to the

distinctive characteristics of cities and towns, neighborhoods and areas and the need to manage

growth and to pace and phase development, especially in high growth areas.

(3) The state in partnership with local communities must remove barriers to housing

development and update and maintain zoning and building regulations to facilitate the

construction, rehabilitation of properties and retrofitting of buildings for use as safe affordable

housing.

(4) Creative funding mechanisms are needed at the local and state levels that provide

additional resources for housing development, because there is an inadequate amount of federal

and state subsidies to support the affordable housing needs of Rhode Island's current and

projected population.

(5) Innovative community planning tools, including, but not limited to, density bonuses

and permitted accessory dwelling units, are needed to offset escalating land costs and project

financing costs that contribute to the overall cost of housing and tend to restrict the development

and preservation of housing affordable to very low income, low income and moderate income

persons.

(6) The gap between the annual increase in personal income and the annual increase in

the median sales price of a single-family home is growing, therefore, the construction,

rehabilitation and maintenance of affordable, multi-family housing needs to increase to provide

more rental housing options to individuals and families, especially those who are unable to afford

homeownership of a single-family home.

(7) The state needs to foster the formation of cooperative partnerships between

communities and institutions of higher education to significantly increase the amount of

residential housing options for students.

(8) The production of housing for older citizens as well as urban populations must keep

pace with the next twenty-year projected increases in those populations of the state.

(9) Efforts must be made to balance the needs of Rhode Island residents with the ability

of the residents of surrounding states to enter into Rhode Island's housing market with much

higher annual incomes at their disposal.

program, shall develop by July 1, 2006, a five (5) year strategic plan for housing, which plan shall

be adopted as an element of the state guide plan, and which shall include quantified goals,

measurable intermediate steps toward the accomplishment of the goals, implementation activities,

and standards for the production and/or rehabilitation of year-round housing to meet the housing

needs including, but not limited to, the following:

(1) Older Rhode Islanders, including senior citizens, appropriate, affordable housing

options;

(2) Workers, housing affordable at their income level;

(3) Students, dormitory, student housing and other residential options;

(4) Low income and very low income households, rental housing;

(5) Persons with disabilities, appropriate housing; and

(6) Vulnerable individuals and families, permanent housing, single room occupancy

units, transitional housing and shelters.

(d) As used in this section and for the purposes of the preparation of affordable housing

plans as specified in chapter 45-22.2, words and terms shall have the meaning set forth in chapter

45-22.2, chapter 45-53, and/or section 42-11-10, unless this section provides a different meaning

or unless the context indicates a different meaning or intent.

(1) "Affordable housing" means residential housing that has a sales price or rental

amount that is within the means of a household that is moderate income or less. In the case of

dwelling units for sale, housing that is affordable means housing in which principal, interest,

taxes, which may be adjusted by state and local programs for property tax relief, and insurance

constitute no more than thirty percent (30%) of the gross household income for a ~~moderate~~

~~income~~ household with less than one hundred and twenty percent (120%) of area median income,

adjusted for family size. In the case of dwelling units for rent, housing that is affordable means

housing for which the rent, heat, and utilities other than telephone constitute no more than thirty

percent (30%) of the gross annual household income for a household with eighty percent (80%)

or less of area median income, adjusted for family size. Affordable housing shall include all types

of year-round housing, including, but not limited to, manufactured housing, housing originally

constructed for workers and their families, accessory dwelling units, housing accepting rental

vouchers and/or tenant-based certificates under Section 8 of the United States Housing Act of

1937, as amended, and assisted living housing, where the sales or rental amount of such housing,

adjusted for any federal, state, or municipal government subsidy, is less than or equal to thirty

percent (30%) of the gross household income of the low and/or moderate income occupants of the

housing.

(2) "Affordable housing plan" means a plan prepared and adopted by a town or city

either to meet the requirements of chapter 45-53 or to meet the requirements of section 45-22.2-

10(f), which require that comprehensive plans and the elements thereof be revised to conform

with amendments to the state guide plan.

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

reviewed and approved in accordance with section 45-22.2-9.

(4) "Moderate income household" means a single person, family, or unrelated persons

living together whose adjusted gross income is more than eighty percent (80%) but less than one

hundred twenty percent (120%) of the area median income, adjusted for family size.

(5) "Seasonal housing" means housing that is intended to be occupied during limited

portions of the year.

(6) "Year-round housing" means housing that is intended to be occupied by people as

their usual residence and/or vacant units that are intended by their owner for occupancy at all

times of the year; occupied rooms or suites of rooms in hotels are year-round housing only when

occupied by permanent residents as their usual place of residence.

(e) The strategic plan shall be updated and/or amended as necessary, but not less than

once every five (5) years.

(f) Upon the adoption of the strategic plan as an element of the state guide plan, towns

and cities shall bring their comprehensive plans into conformity with its requirements, in

accordance with the timetable set forth in section 45-22.2-10(f), provided, however, that any town

that has adopted an affordable housing plan in order to comply with the provisions of chapter 45-

53, which has been approved for consistency pursuant to section 45-22.2-9, shall be deemed to

satisfy the requirements of the strategic plan for low and moderate income housing until such

time as the town must complete its next required comprehensive community plan update.

(g) Guidelines. - The commission shall advise the state planning council and the state

planning council shall promulgate and adopt not later than July 1, 2006, guidelines for higher

density development, including, but not limited to: (A) inclusionary zoning provisions for low

and moderate income housing with appropriate density bonuses and other subsidies that make the

development financially feasible; and (B) mixed-use development that includes residential

development, which guidelines shall take into account infrastructure availability; soil type and

land capacity; environmental protection; water supply protection; and agricultural, open space,

historical preservation, and community development pattern constraints.

(h) The statewide planning program shall maintain a geographic information system map

that identifies, to the extent feasible, areas throughout the state suitable for higher density

residential development consistent with the guidelines adopted pursuant to subsection (g) above.

SECTION 3. Sections 45-53-2, 45-53-3, 45-53-4 and 45-53-6 of the General Laws in

Chapter 45-53 entitled "Low and Moderate Income Housing" are hereby amended to read as

follows:

45-53-2. Legislative findings and intent. -- The general assembly finds and declares that

there exists an acute shortage of affordable, accessible, safe, and sanitary housing for its citizens

of low and moderate income, both individuals and families; that it is imperative that action is

taken immediately to assure the availability of affordable, accessible, safe, and sanitary housing

for these persons; that it is necessary that each city and town provide opportunities for the

establishment of low and moderate income housing; and that the provisions of this chapter are

necessary to assure the health, safety, and welfare of all citizens of this state, and that each citizen

enjoys the right to affordable, accessible, safe, and sanitary housing. It is further declared to be

the purpose of this chapter to provide for housing opportunities for low and moderate income

individuals and families in each city and town of the state and that an equal consideration shall be

on given to the retrofitting and rehabilitation of existing dwellings for low and moderate income

housing and assimilating low and moderate income housing into existing and future

developments and neighborhoods.

45-53-3. Definitions. -- The following words, wherever used in this chapter, unless a

different meaning clearly appears from the context, have the following meanings:

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

or town pursuant to chapters 22.2 and 22.3 of this title.

(2) "Consistent with local needs" means ~~local zoning or land use ordinances,~~

~~requirements, and regulations are considered consistent with local needs if they are~~ reasonable in

view of the state need for low and moderate income housing, considered with the number of low

income persons in the city or town affected and the need to protect the health and safety of the

occupants of the proposed housing or of the residence of the city or town, to promote better site

and building design in relation to the surroundings, or to preserve open spaces, and if the local

zoning or land use ordinances, requirements, and regulations are applied as equally as possible to

both subsidized and unsubsidized housing. Local zoning and land use ordinances, requirements,

or regulations are consistent with local needs when imposed by a city or town council after

comprehensive hearing in a city or town where:

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

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

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

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

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

year-round housing units reported in the census.

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

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

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

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

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

provided in subdivision (2)(i).

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

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

~~zoning~~ approval of the comprehensive permit, to the extent that it makes it impossible for a public

agency, nonprofit organization, or limited equity housing cooperative to proceed in building or

operating low or moderate income housing without financial loss, within the limitations set by the

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

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

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

limited equity housing cooperative.

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

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

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

construction of buildings or the power of enforcing land use regulations, such as subdivision, or

zoning laws.

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

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

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

under any program to assist the construction or rehabilitation of housing ~~as low or moderate~~

~~income housing~~ affordable to low or moderate income households, as defined in the applicable

federal or state statute, or local ordinance ~~whether built or operated by any public agency or any~~

~~nonprofit organization, or by any limited equity housing cooperative or any private developer,~~

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

years or such other period that is either agreed to by the applicant and town ~~but shall not be for a~~

~~period of less than thirty (30) years from initial occupancy through a land lease and/or deed~~

~~restriction~~ or prescribed by the federal, or state, or municipal government subsidy program but

~~shall not be for a period~~ that is not less than thirty (30) years from initial occupancy ~~through a~~

~~land lease and/or deed restriction~~.

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

section 45-22.2-4(33), to meet housing needs in a city or town that is prepared in accordance with

guidelines adopted by the state planning council, and/or to meet the provisions of section 45-53-

4(b)(1) and (c).

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

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

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

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

having completed, adopted, or amended its comprehensive plan as provided for in sections 45-

22.2-8, 45-22.2-9, or 45-22.2-12.

(8) "Letter of eligibility" means a letter issued by the Rhode Island Housing and

Mortgage Finance Corporation in accordance with section 42-55-5.3(a).

(9) "Local review board" means the planning board as defined by section 45-22.2-4(24),

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

zoning board of review established pursuant to section 45-24-56.

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

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

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

expectations of the approved affordable housing plan.

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

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

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

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

internal subsidies, and any combination of forms of assistance.

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

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

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

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

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

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

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

(i) A letter of eligibility issued by the Rhode Island Housing Mortgage Finance

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

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

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

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

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

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

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

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

project; and

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

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

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

years; and

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

the low and moderate income units; and

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

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

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

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

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

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

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

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

applicant and the town; those items included in the checklist for the master plan in the local

regulations promulgated pursuant to section 45-23-40. Subsequent to master plan approval, the

applicant must submit those items included in the checklist for a preliminary plan for a major land

development or major subdivision project in the local regulations promulgated pursuant to section

45-23-41, with the exception of evidence of state or federal permits. All required state and federal

permits must be obtained prior to the final plan approval or the issuance of a building permit; and

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

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

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

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

financially infeasible; and

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

may request additional, reasonable documentation throughout the public hearing, including, but

not limited to, opinions of experts, credible evidence of application for necessary federal and/or

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

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

incomplete by the administrative officer according to the provisions of section 45-23-36;

provided, however, that for a major land development or major subdivision, the certificate for a

master plan shall be granted within thirty (30) days and for a preliminary plan shall be granted

within forty-five (45) days. The running of the time period set forth herein will be deemed

stopped upon the issuance of a certificate of incompleteness of the application by the

administrative officer and will recommence upon the resubmission of a corrected application by

the applicant. However, in no event will the administrative officer be required to certify a

corrected submission as complete or incomplete less than fourteen (14) days after its

resubmission. If the administrative officer certifies the application as incomplete, the officer shall

set forth in writing with specificity the missing or incomplete items.

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

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

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

pre-application conference with the local review board, the technical review committee

established pursuant to section 45-23-56, or with the administrative officer for the local review

board and other local officials, as appropriate. To request a pre-application conference, the

applicant shall submit a short description of the project in writing including the number of units,

type of housing, as well as a location map. The purpose of the pre-application conference shall be

to review a concept plan of the proposed development. Upon receipt of a request by an applicant

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

pre-application conference. If thirty (30) days has elapsed from the filing of the pre-application

submission and no pre-application conference has taken place, nothing shall be deemed to

preclude an applicant from thereafter filing and proceeding with an application for a

comprehensive permit.

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

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

provisions:

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

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

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

notice of hearings on applications under the zoning ordinance and/or land development and

subdivision regulations as applicable.

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

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

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

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

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

relief or relief from other local regulations or ordinances not otherwise addressed in this

subsection, shall be conducted following the procedures in the applicable local regulations, with

the exception that all minor land developments or minor subdivisions under this act are required

to hold a public hearing on the application, and within ninety-five (95) days of issuance of the

certificate of completeness, or within such further time as is agreed to by the applicant and the

local review board, render a decision.

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

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

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

issuance of the certification of completeness, or within such further amount of time as may be

agreed to by the local review board and the applicant, render a decision. Preliminary and final

plan review shall be conducted according to local regulations promulgated pursuant to chapter 23

of this title except as otherwise specified in this section.

(v) Required findings. - In ~~taking final action~~ approving on an application, the local

review board shall make positive findings, supported by legally competent evidence on the record

which discloses the nature and character of the observations upon which the fact finders acted, on

each of the following standard provisions, where applicable:

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

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

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

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

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

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

local need for low and moderate income housing.

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

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

occupancy of any market rate units.

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

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

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

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

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

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

cultural features that contribute to the attractiveness of the community.

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

permanent physical access to a public street in accordance with the requirements of section 45-

23-60(5).

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

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

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

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

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

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

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

respect to height, site plan, size, or shape, or building materials, as are consistent with the terms

of this section.

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

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

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

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

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

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

conformance with the comprehensive plan; (D) the community has met or has plans to meet the

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

percent (15%) of the occupied rental housing units as defined in section 45-53-3(2)(i) being low

and moderate income housing; or (E) concerns for the environment and the health and safety of

current residents have not been adequately addressed.

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

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

appeals board.

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

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

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

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

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

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

court.

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

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

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

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

construction and occupancy of market rate units.

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

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

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

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

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

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

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

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

report the status of implementation to the Housing Resources Commission, including the

disposition of any applications made under the plan, as of June 30, 2006, by September 1, 2006

and for each June 30 thereafter by September 1 through 2010. The Housing Resources

Commission shall prepare by October 15 and adopt by December 31, a report on the status of

implementation, which shall be submitted to the governor, the speaker, the president of the senate

and the chairperson of the State Housing Appeals Board, and shall find which towns are not in

compliance with implementation requirements.

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

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

Housing Appeals Board pursuant to section 45-53-6(f)(2) shall be heard as herein provided; in

any town with more than one remanded application, applications may be scheduled for hearing in

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

requirement for the initiation of hearings, commencing upon the decision of the earlier filed

application.

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

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

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

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

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

under the provisions of this chapter, and to have communities prepare plans to meet low and

moderate income housing goals, that it is necessary to impose a moratorium on the use of

comprehensive permit applications as herein provided by private for-profit developers; a

moratorium is hereby imposed on the use of the provisions of this chapter by private for-profit

developers, which moratorium shall be effective on passage and shall expire on January 31, 2005

and may be revisited prior to expiration and extended to such other date as may be established by

law. Notwithstanding the provisions of subsection (a) of this section, private for-profit developers

may not utilize the procedure of this chapter until the expiration of the moratorium.

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

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

(3) Notwithstanding the provisions of subsection 45-53-4(b)(2), a local review board in a

town which has submitted a plan in accordance with subsection 45-53-4(c), shall not be required

to accept an application for a new comprehensive permit from a for-profit developer until October

1, 2005.

3(2)(i) shall prepare by December 31, 2004, a comprehensive plan housing element for low and

moderate income housing as specified by section 45-53-3(2)(ii), consistent with applicable law

and regulation. That the secretary of the planning board or commission of each city or town

subject to the requirements of this paragraph shall report in writing the status of the preparation of

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

provision of section 45-53-3(ii) give priority to the maximum extent allowable by law, to towns

with an approved affordable housing plan. The director of administration shall adopt not later

than January 31, 2005, regulations to implement the provisions of this section.

45-53-6. Power of state housing appeals board. -- (a) The state housing appeals board

shall have the powers to: (i) adopt, amend and repeal rules and regulations that are consistent with

this chapter and are necessary to implement the requirements of sections 45-53-5, 45-53-6, and

45-53-7; (ii) receive and expend state appropriations; and (iii) establish a reasonable fee schedule,

which may be waived, to carry out its duties.

(b) In hearing the appeal, the state housing appeals board shall determine whether: (i) in

the case of the denial of an application, the decision of the local review board was consistent with

an approved affordable housing plan, or if the town does not have an approved affordable housing

plan, was reasonable and consistent with local needs; and (ii) in the case of an approval of an

application with conditions and requirements imposed, whether those conditions and

requirements make the construction or operation of the housing infeasible and whether those

conditions and requirements are consistent with an approved affordable housing plan, or if the

town does not have an approved affordable housing plan, are consistent with local needs.

are not limited to:

(1) The consistency of the decision to deny or condition the permit with the approved

affordable housing plan and/or approved comprehensive plan;

(2) The extent to which the community meets or plans to meet housing needs, as defined

in an affordable housing plan, including, but not limited to, the ten percent (10%) goal for

existing low and moderate income housing units as a proportion of year-round housing;

(3) The consideration of the health and safety of existing residents;

(4) The consideration of environmental protection; and

(5) The extent to which the community applies local zoning ordinances and ~~special~~

~~exception~~ review procedures evenly on subsidized and unsubsidized housing applications alike.

(d) If the appeals board finds, in the case of a denial, that the decision of the local review

board was ~~unreasonable and not consistent with local plans and local needs,~~ not consistent with

an approved affordable housing plan, or if the town does not have an approved affordable housing

plan, was not reasonable and consistent with local needs, it shall vacate the decision and issue a

decision and order approving the application, denying the application, or approving with various

conditions consistent with local needs. If the appeals board finds, in the case of an approval with

conditions and requirements imposed, that the decision of the local review board makes the

building or operation of the housing infeasible, and/or the conditions and requirements are not

consistent with an approved affordable housing plan, or if the town does not have an approved

affordable housing plan, are not is ~~not~~ consistent with local needs, it shall issue a decision and

order, modifying or removing any condition or requirement so as to make the proposal no longer

infeasible and/or consistent, and approving the application; provided, that the appeals board shall

not issue any decision and order that would permit the building or operation of the housing in

accordance with standards less safe than the applicable building and site plan requirements of the

federal department of housing and urban development or the Rhode Island housing and mortgage

finance corporation, whichever agency is financially assisting the housing. Decisions or

conditions and requirements imposed by a local review board that are consistent with approved

affordable housing plans and/or with local needs shall not be vacated, modified, or removed by

the appeals board notwithstanding that the decision or conditions and requirements have the

effect of denying or making the applicant's proposal infeasible.

(e) The appeals board or the applicant has the power to enforce the orders of the appeals

board by an action brought in the supreme court. The local review board shall carry out the

decision and order of the appeals board within thirty (30) days of its entry and, upon failure to do

so, the decision and order of the appeals board is, for all purposes, deemed to be the action of the

local review board, unless the applicant consents to a different decision or order by the local

review board. The decision and order of the appeals board is binding on the city or town, which

shall immediately issue any and all necessary permits and approvals to allow the construction and

operation of the housing as approved by the appeals board.

(f) The state housing appeals board shall:

(1) Upon an appeal of the applicant prior to August 1, 2004, rule on December 1, 2004,

on the substantial completeness of applications as of February 13, 2004, that were affected by the

moratorium established by section 45-53-4(b).

(i) The determination of substantial completeness shall be based on whether there was on

or before February 13, 2004, substantial completeness of substantially all of the following:

(A) A written request to the zoning board of review to submit a single application to

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

application local boards;

(B) A written list of variances, special use permits and waivers requested to local

requirements and regulations, including local codes, ordinances, by-laws or regulations, including

any requested waivers from the land development or subdivisions regulations, and a proposed

timetable for completion of the project;

(D) Evidence of eligibility for a state or federal government subsidy, including a letter

from the funding agency indicating the applicant and the project;

(E) Site development plans showing the locations and outlines of proposed buildings; the

proposed location, general dimensions and materials for street, drives, parking areas, walks and

paved areas; proposed landscaping improvements and open areas within the site; and the

proposed location and types of sewage, drainage and water facilities;

(F) A report on existing site conditions and a summary of conditions in the surrounding

areas, showing the location and nature of existing buildings, existing street elevations, traffic

patterns and character of open areas, including wetlands and flood plains, in the neighborhood;

(G) A tabulation of proposed buildings by type, size (number of bedrooms, floor area)

and ground coverage and a summary showing the percentage of the tract to be occupied by

buildings, by parking and other paved vehicular areas and by open spaces;

(H) A master plan, if the development proposal is for a major or minor land development

plan or a major or minor subdivision;

(I) a sample land lease or deed restrictions with affordability liens that will restrict use as

low and moderate income housing units for a period of not less than thirty (30) years; and

(J) The list of all persons entitled to notice in accordance with section 45-24-53.

(ii) Notwithstanding the provisions of paragraph (i) of this subdivision, if the zoning

board of review determined the application to be substantially complete and/or acted in manner

demonstrating that it considered the application substantially complete for the purposes of

reviewing the application, the State Housing Appeals Board shall consider the application

substantially complete.

(2) Remand for hearing in accordance with the provisions of section 45-53-4

applications which are determined to be substantially complete, which hearings may be

conducted (or resume) under the provisions in effect on February 13, 2004, unless the applicant

and the board shall mutually agree that the hearing shall proceed under the provisions in effect on

December 1, 2004, which hearings may commence on or after January 1, 2005, but shall

commence not later than January 31, 2005, on applications in the order in which they were

received by the town, unless a different commencement date is mutually agreed to by the

applicant and the local board hearing the applications; the local review board shall not be

obligated to hear, and may deny, any application affected by the moratorium unless it was

determined to be substantially complete in accordance with the provisions of subdivision (1) of

this subsection, and the local review board may require such additional submissions as may be

specified by the town or necessary for the review of the application.

(3) Hear and decide appeals, other than those covered by subdivision (1) of this

subsection, for which it took jurisdiction on or before May 1, 2004.

(4) Continue to hear and decide appeals filed by nonprofit organizations.

(5) Conduct such other business as may be reasonable and appropriate in order to

facilitate an orderly transfer of activities to the State Housing Appeals Board as it shall be

constituted after January 1, 2005.

SECTION 4. This act shall take effect on June 30, 2005.

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LC03472/SUB A

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