§ 45-53-4 - Procedure for approval of construction of low or moderate income housing.
SECTION 45-53-4
§ 45-53-4 Procedure for approval ofconstruction of low or moderate income housing. – (a) Any applicant proposing to build low or moderate income housing may submitto the local review board a single application for a comprehensive permit tobuild that housing in lieu of separate applications to the applicable localboards. This procedure is only available for proposals in which at leasttwenty-five percent (25%) of the housing is low or moderate income housing. Theapplication and review process for a comprehensive permit shall be as follows:
(1) Submission requirements. Applications for acomprehensive permit shall include:
(i) A letter of eligibility issued by the Rhode Islandhousing mortgage finance corporation, or in the case of projects primarilyfunded by the U.S. Department of Housing and Urban Development or other stateor federal agencies, an award letter indicating the subsidy, or application insuch form as may be prescribed for a municipal government subsidy; and
(ii) A written request to the local review board to submit asingle application to build or rehabilitate low or moderate income housing inlieu of separate applications to the applicable local boards. The writtenrequest shall identify the specific sections and provisions of applicable localordinances and regulations from which the applicant is seeking relief; and
(iii) A proposed timetable for the commencement ofconstruction and completion of the project; and
(iv) A sample land lease or deed restriction withaffordability liens that will restrict use as low and moderate income housingin conformance with the guidelines of the agency providing the subsidy for thelow and moderate income housing, but for a period of not less than thirty (30)years; and
(v) Identification of an approved entity that will monitorthe 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) notinvolving major land developments or major subdivisions including, but notlimited to, applications seeking relief from specific provisions of a localzoning ordinance, or involving administrative subdivisions, minor landdevelopments or minor subdivisions, or other local ordinances and regulations:those items required by local regulations promulgated pursuant to applicablestate law, with the exception of evidence of state or federal permits; and forcomprehensive permit applications; and (B) involving major land developmentsand major subdivisions, unless otherwise agreed to by the applicant and thetown; those items included in the checklist for the master plan in the localregulations promulgated pursuant to § 45-23-40. Subsequent to master planapproval, the applicant must submit those items included in the checklist for apreliminary plan for a major land development or major subdivision project inthe local regulations promulgated pursuant to § 45-23-41, with theexception of evidence of state or federal permits. All required state andfederal permits must be obtained prior to the final plan approval or theissuance of a building permit; and
(viii) Municipalities may impose fees on comprehensive permitapplications that are consistent with but do not exceed fees that wouldotherwise be assessed for a project of the same scope and type but notproceeding under this chapter, provided, however, that the imposition of suchfees shall not preclude a showing by a non-profit applicant that the fees makethe project financially infeasible; and
(xi) Notwithstanding the submission requirements set forthabove, the local review board may request additional, reasonable documentationthroughout the public hearing, including, but not limited to, opinions ofexperts, credible evidence of application for necessary federal and/or statepermits, statements and advice from other local boards and officials.
(2) Certification of completeness. The applicationmust be certified complete or incomplete by the administrative officeraccording to the provisions of § 45-23-36; provided, however, that for amajor land development or major subdivision, the certificate for a master planshall be granted within thirty (30) days and for a preliminary plan shall begranted within forty-five (45) days. The running of the time period set forthherein will be deemed stopped upon the issuance of a certificate ofincompleteness of the application by the administrative officer and willrecommence upon the resubmission of a corrected application by the applicant.However, in no event will the administrative officer be required to certify acorrected submission as complete or incomplete less than fourteen (14) daysafter its resubmission. If the administrative officer certifies the applicationas incomplete, the officer shall set forth in writing with specificity themissing or incomplete items.
(3) Pre-application conference. Where thecomprehensive permit application proposal is a major land development projector a major subdivision pursuant to chapter 23 of this title a municipality mayrequire an applicant proposing a project under this chapter to first schedule apre-application conference with the local review board, the technical reviewcommittee established pursuant to § 45-23-56, or with the administrativeofficer for the local review board and other local officials, as appropriate.To request a pre-application conference, the applicant shall submit a shortdescription of the project in writing including the number of units, type ofhousing, as well as a location map. The purpose of the pre-applicationconference shall be to review a concept plan of the proposed development. Uponreceipt of a request by an applicant for a pre-application conference, themunicipality has thirty (30) days to schedule and hold the pre-applicationconference. If thirty (30) days has elapsed from the filing of thepre-application submission and no pre-application conference has taken place,nothing shall be deemed to preclude an applicant from thereafter filing andproceeding with an application for a comprehensive permit.
(4) Review of applications. An application filed inaccordance with this chapter shall be reviewed by the local review board at apublic hearing in accordance with the following provisions:
(i) Notification. Upon issuance of a certificate ofcompleteness for a comprehensive permit, the local review board shallimmediately notify each local board, as applicable, of the filing of theapplication, by sending a copy to the local boards and to other partiesentitled to notice of hearings on applications under the zoning ordinanceand/or land development and subdivision regulations as applicable.
(ii) Public Notice. Public notice for all publichearings will be the same notice required under local regulations for a publichearing for a preliminary plan promulgated in accordance with § 45-23-42.The cost of notice shall be paid by the applicant.
(iii) Review of minor projects. The review of acomprehensive permit application involving only minor land developments orminor subdivisions or requesting zoning ordinance relief or relief from otherlocal regulations or ordinances not otherwise addressed in this subsection,shall be conducted following the procedures in the applicable localregulations, with the exception that all minor land developments or minorsubdivisions under this section are required to hold a public hearing on theapplication, and within ninety-five (95) days of issuance of the certificate ofcompleteness, or within such further time as is agreed to by the applicant andthe local review board, render a decision.
(iv) Review of major projects. In the review of acomprehensive permit application involving a major land development and/ormajor subdivision, the local review board shall hold a public hearing on themaster plan and shall, within one hundred and twenty (120) days of issuance ofthe certification of completeness, or within such further amount of time as maybe agreed to by the local review board and the applicant, render a decision.Preliminary and final plan review shall be conducted according to localregulations promulgated pursuant to chapter 23 of this title except asotherwise specified in this section.
(v) Required findings. In approving on an application,the local review board shall make positive findings, supported by legallycompetent evidence on the record which discloses the nature and character ofthe observations upon which the fact finders acted, on each of the followingstandard provisions, where applicable:
(A) The proposed development is consistent with local needsas identified in the local comprehensive community plan with particularemphasis on the community's affordable housing plan and/or has satisfactorilyaddressed the issues where there may be inconsistencies.
(B) The proposed development is in compliance with thestandards and provisions of the municipality's zoning ordinance and subdivisionregulations, and/or where expressly varied or waived local concerns that havebeen affected by the relief granted do not outweigh the state and local needfor low and moderate income housing.
(C) All low and moderate income housing units proposed areintegrated throughout the development; are compatible in scale andarchitectural style to the market rate units within the project; and will bebuilt and occupied prior to, or simultaneous with the construction andoccupancy of any market rate units.
(D) There will be no significant negative environmentalimpacts from the proposed development as shown on the final plan, with allrequired conditions for approval.
(E) There will be no significant negative impacts on thehealth and safety of current or future residents of the community, in areasincluding, but not limited to, safe circulation of pedestrian and vehiculartraffic, provision of emergency services, sewerage disposal, availability ofpotable water, adequate surface water run-off, and the preservation of natural,historical or cultural features that contribute to the attractiveness of thecommunity.
(F) All proposed land developments and all subdivisions lotswill have adequate and permanent physical access to a public street inaccordance with the requirements of § 45-23-60(5).
(G) The proposed development will not result in the creationof individual lots with any physical constraints to development that buildingon those lots according to pertinent regulations and building standards wouldbe impracticable, unless created only as permanent open space or permanentlyreserved for a public purpose on the approved, recorded plans.
(vi) The local review board has the same power to issuepermits or approvals that any local board or official who would otherwise actwith respect to the application, including, but not limited to, the power toattach to the permit or approval, conditions, and requirements with respect toheight, site plan, size, or shape, or building materials, as are consistentwith the terms of this section.
(vii) In reviewing the comprehensive permit request, thelocal 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 housingneeds, 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 zoningordinances and procedures promulgated in conformance with the comprehensiveplan; (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 theyear-round units or, in the case of an urban town or city, fifteen percent(15%) of the occupied rental housing units as defined in § 45-53-3(2)(i)being low and moderate income housing; or (E) concerns for the environment andthe health and safety of current residents have not been adequately addressed.
(viii) All local review board decisions on comprehensivepermits shall be by majority vote of the membership of the board and may beappealed by the applicant to the state housing appeals board.
(ix) If the public hearing is not convened or a decision isnot rendered within the time allowed in subsection (a)(4)(iii) and (iv), theapplication is deemed to have been allowed and the relevant approval shallissue immediately; provided, however, that this provision shall not apply toany application remanded for hearing in any town where more than oneapplication has been remanded for hearing provided for in § 45-53-6(f)(2).
(x) Any person aggrieved by the issuance of an approval mayappeal to the superior court within twenty (20) days of the issuance ofapproval.
(xi) A comprehensive permit shall expire unless constructionis started within twelve (12) months and completed within sixty (60) months offinal plan approval unless a longer and/or phased period for development isagreed to by the local review board and the applicant. Low and moderate incomehousing units shall be built and occupied prior to, or simultaneous with theconstruction and occupancy of market rate units.
(xii) A town with an approved affordable housing plan andthat is meeting local housing needs may by council action limit the annualtotal number of dwelling units in comprehensive permit applications fromfor-profit developers to an aggregate of one percent (1%) of the total numberof year-round housing units in the town, as recognized in the affordablehousing plan and notwithstanding the timetables set forth elsewhere in thissection, the local review board shall have the authority to considercomprehensive permit applications from for-profit developers, which are madepursuant to this paragraph, sequentially in the order in which they aresubmitted.
(xiii) The local review board of a town with an approvedaffordable housing plan shall report the status of implementation to thehousing resources commission, including the disposition of any applicationsmade under the plan, as of June 30, 2006, by September 1, 2006 and for eachJune 30 thereafter by September 1 through 2010. The housing resourcescommission shall prepare by October 15 and adopt by December 31, a report onthe status of implementation, which shall be submitted to the governor, thespeaker, the president of the senate and the chairperson of the state housingappeals board, and shall find which towns are not in compliance withimplementation requirements.
(xiv) Notwithstanding the provisions of § 45-53-4 ineffect on February 13, 2004, to commence hearings within thirty (30) days ofreceiving an application remanded by the state housing appeals board pursuantto § 45-53-6(f)(2) shall be heard as herein provided; in any town withmore than one remanded application, applications may be scheduled for hearingin the order in which they were received, and may be taken up sequentially,with the thirty (30) day requirement for the initiation of hearings, commencingupon the decision of the earlier filed application.
(b) The general assembly finds and declares that in January2004 towns throughout Rhode Island have been confronted by an unprecedentedvolume and complexity of development applications as a result of privatefor-profit developers using the provisions of this chapter and that in order toprotect the public health and welfare in communities and to provide sufficienttime to establish a reasonable and orderly process for the consideration ofapplications made under the provisions of this chapter, and to have communitiesprepare plans to meet low and moderate income housing goals, that it isnecessary to impose a moratorium on the use of comprehensive permitapplications as herein provided by private for-profit developers; a moratoriumis hereby imposed on the use of the provisions of this chapter by privatefor-profit developers, which moratorium shall be effective on passage and shallexpire on January 31, 2005 and may be revisited prior to expiration andextended to such other date as may be established by law. Notwithstanding theprovisions of subsection (a) of this section, private for-profit developers maynot utilize the procedure of this chapter until the expiration of themoratorium.
(2) No for-profit developer shall submit a new applicationfor comprehensive permits until July 1, 2005, except by mutual agreement withthe local review board.
(3) Notwithstanding the provisions of subdivision (b)(2) ofthis section, a local review board in a town which has submitted a plan inaccordance with subsection (c) of this section, shall not be required to acceptan application for a new comprehensive permit from a for-profit developer untilOctober 1, 2005.
(c) Towns and cities that are not in conformity with theprovisions of § 45-53-3(2)(i) shall prepare by December 31, 2004, acomprehensive plan housing element for low and moderate income housing asspecified by § 45-53-3(2)(ii), consistent with applicable law andregulation. That the secretary of the planning board or commission of each cityor town subject to the requirements of this paragraph shall report in writingthe status of the preparation of the housing element for low and moderateincome 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 housecommittee on corporations and to the chair of the senate committee on commerce,housing and municipal government. The state housing appeals board shall usesaid plan elements in making determinations provided for in §45-53-6(b)(2).
(d) If any provision of this section or the applicationthereof shall for any reason be judged invalid, such judgment shall not affect,impair, or invalidate the remainder of this section or of any other provisionof this chapter, but shall be confined in its effect to the provision orapplication directly involved in the controversy giving rise to the judgment,and a moratorium on the applications of for-profit developers pursuant to thischapter shall remain and continue to be in effect for the period commencing onthe day this section becomes law [February 13, 2004] and continueuntil it shall expire on January 31, 2005, or until amended further.
(e) In planning for, awarding and otherwise administeringprograms and funds for housing and for community development, statedepartments, agencies, boards and commissions, public corporations, as definedin chapter 18 of title 35, shall among the towns subject to the provision of§ 45-53-3(ii) give priority to the maximum extent allowable by law, totowns with an approved affordable housing plan. The director of administrationshall adopt not later than January 31, 2005, regulations to implement theprovisions of this section.