Chapter
371
2006 -- S 2428 SUBSTITUTE A
Enacted 07/07/06
A N A
C T
RELATING TO CITIES
AND TOWNS –
LOW AND MODERATE
INCOME HOUSING
Introduced By: Senators
McCaffrey, J Montalbano, and McBurney
Date Introduced: February
09, 2006
It is enacted
by the General Assembly as follows:
SECTION
1. Sections 45-53-4, 45-53-5 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:
45-53-4.
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
section 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 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.
(C) All low and moderate income housing units proposed are integrated
throughout the
development;
are 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
superior court within twenty (20) days of the issuance of
approval.
(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 subdivision (b)(2) of this section, a
local review
board in
a town which has submitted a plan in accordance with subsection (c) of this
section, shall
not be required
to accept an application for a new comprehensive permit from a for-profit
developer
until October 1, 2005.
(c) Towns and cities that are not in conformity with the provisions of section
45-53-
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.
45-53-5.
Appeals to state housing appeals board -- Judicial review. -- (a)
Whenever
an
application filed under the provisions of section 45-53-4 is denied, or is
granted with
conditions
and requirements that make the building or operation of the housing infeasible,
the
applicant
has the right to appeal to the state housing appeals board established by
section 45-53-7,
for a
review of the application. The appeal shall be taken within twenty (20) days
after the date of
the
notice of the decision by the local review board by filing with the appeals
board a statement of
the
prior proceedings and the reasons upon which the appeal is based.
(b) The appeals board shall immediately notify the local review board of the
filing of the
petition
for review and the latter shall, within ten (10) days of the receipt of the
notice, transmit a
copy of
its decision and the reasons for that decision to the appeals board.
(c) The appeal shall be heard by the appeals board within twenty (20) days
after the
receipt
of the applicant's statement. A stenographic record of the proceedings shall be
kept and
the
appeals board shall render a written decision and order, based upon a majority
vote, stating its
findings
of fact, and its conclusions and the reasons for those conclusions, within
thirty (30) days
after
the termination of the hearing, unless the time has been extended by mutual
agreement
between
the appeals board and the applicant. The decision and order may be appealed in
the
supreme superior court within twenty (20) days of
the issuance of the decision. The review shall
be
conducted by the superior court without a jury. The court shall consider the
record of the
hearing
before the state housing appeals board and, if it appears to the court that
additional
evidence
is necessary for the proper disposition of the matter, it may allow any party
to the appeal
to
present that evidence in open court, which evidence, along with the report,
constitutes the
record
upon which the determination of the court is made.
(d)
The court shall not substitute its judgment for that of the state housing
appeals board
as to
the weight of the evidence on questions of fact. The court may affirm the
decision of the
state
housing appeals board or remand the case for further proceedings, or may
reverse or modify
the
decision if substantial rights of the appellant have been prejudiced because of
findings,
inferences,
conclusions, or decisions which are:
(1)
In violation of constitutional, statutory, or ordinance provisions;
(2)
In excess of the authority granted to the state housing appeal board by statute
or
ordinance;
(3)
Made upon unlawful procedure;
(4)
Affected by other error of law;
(5)
Clearly erroneous in view of the reliable, probative, and substantial evidence
of the
whole
record; or
(6)
Arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted
exercise
of discretion.
(e)
Any appeal from the superior court to the supreme court pursuant to this
section shall
be by
writ of certiorari.
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.
(c) In making a determination, the standards for reviewing the appeal include,
but 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
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 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 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 superior 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;
(C) Evidence of site control;
(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
2. This act shall take effect upon passage.
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LC01500/SUB A
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