2012 -- S 2409

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LC01194

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STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2012

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A N A C T

RELATING TO TOWNS AND CITIES - LOW AND MODERATE INCOME HOUSING

     Introduced By: Senators Algiere, and Maher

     Date Introduced: February 15, 2012

     Referred To: Senate Housing & Municipal Government

It is enacted by the General Assembly as follows:

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     SECTION 1. Section 45-53-4 of the General Laws in Chapter 45-53 entitled "Low and

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Moderate Income Housing" is hereby amended to read as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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project; and

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

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

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

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years; and

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

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the low and moderate income units; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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financially infeasible; and

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

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

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but not limited to, opinions of experts, credible evidence of application for necessary federal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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comprehensive permit.

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

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

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provisions:

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

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

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

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

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subdivision regulations as applicable.

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

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

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

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

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

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

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

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

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

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

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the local review board, render a decision.

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

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

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

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

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

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

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of this title except as otherwise specified in this section.

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

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

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

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following standard provisions, where applicable:

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

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

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

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

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

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

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local need for low and moderate income housing.

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

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

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

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occupancy of any market rate units.

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

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

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

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

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

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

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cultural features that contribute to the attractiveness of the community.

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

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

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23-60(5).

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

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

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

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

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

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

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

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

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of this section.

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

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

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

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

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

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

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

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

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

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

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current residents have not been adequately addressed.

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

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

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appeals board.

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

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

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

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

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

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

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

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

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

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

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

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construction and occupancy of market rate units.

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

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

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

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

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

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

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

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

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

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

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and for each June 30 thereafter by September 1 through 2010. The housing resources commission

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

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

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chairperson of the state housing appeals board, and shall find which towns are not in compliance

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with implementation requirements.

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

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

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

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

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

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

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application.

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      (b) (1) The general assembly finds and declares that in January 2004 2012 towns

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

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

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

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

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

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

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

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

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

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one year from the passage of this act and may be revisited prior to expiration and extended to

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such other date as may be established by law. Notwithstanding the provisions of subsection (a) of

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this section, private for-profit developers may not utilize the procedure of this chapter until the

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expiration of the moratorium.

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

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until July 1, 2005 one year from the date of passage, except by mutual agreement with the local

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review board.

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

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

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not be subject to the provisions of subdivision (b)(2) of this section required to accept an

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application for a new comprehensive permit from a for-profit developer until October 1, 2005.

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     (c) Towns and cities that are not in conformity with the provisions of section 45-53-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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     SECTION 2. This act shall take effect upon passage.

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LC01194

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO TOWNS AND CITIES - LOW AND MODERATE INCOME HOUSING

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     This act would place a one year moratorium on the issuance of applications for

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developments of housing under this chapter.

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     This act would take effect upon passage.

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LC01194

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