2023 -- H 6083

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LC001448

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO TOWNS AND CITIES -- LOW AND MODERATE INCOME HOUSING

     Introduced By: Representatives Batista, Shekarchi, Hull, Shallcross Smith, Noret, and
McNamara

     Date Introduced: March 03, 2023

     Referred To: House Municipal Government & Housing

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 45-53-4 and 45-53-5 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 and 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; provided, that, on and after July 1, 2022, this entity shall include

the Rhode Island housing resources commission established pursuant to chapter 128 of title 42 and

acting through its monitoring agents, and these agents shall monitor the long-term affordability of

the low- and moderate-income units pursuant to § 45-53-3.2; 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 § 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 § 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 nonprofit 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 § 45-23-36; provided, however, that for

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

within twenty-five (25) days and for a preliminary plan shall be granted within twenty-five (25)

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 ten (10) 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 § 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

§ 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

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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 ninety (90) 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 an application, the local review board shall make

positive findings, supported by legally competent evidence on the record that 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.

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     (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 § 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 the city or town has an approved affordable housing

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

plan; provided that, the local review board also finds that the municipality has made significant

progress in implementing that 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 § 45-53-3(4)(i)

being low- and moderate-income housing; provided that, the local review board also finds that the

community has achieved or has made significant progress towards meeting the goals required by

this section; 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 members present at the proceeding; provided that, there is at least a quorum of the local

review board present and voting at the proceeding, 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 subsections (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 § 45-53-6(f)(2).

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

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

     (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, and 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 § 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 § 45-53-6(f)(2) 45-53-5 or, effective January 1, 2024, § 45-53-

5.1 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-day (30) 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-

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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 § 45-53-3(4)(i) shall

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

income housing as specified by § 45-53-3(4)(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 § 45-53-6(c)(2).

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

invalid, the 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, and public

corporations, as defined in 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 to towns with an approved

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

regulations to implement the provisions of this section.

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

meeting the requirements of a municipality’s low- or moderate-income housing inventory, as long

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

     45-53-5. Appeals to state housing appeals board — Judicial review. [Effective

January 1, 2023.] Appeals -- Judicial review [Effective until January 1, 2024].

     (a) Effective July 1, 2023, until January 1, 2024, at which time the provisions of this section

shall sunset and be repealed and replaced by § 45-53-5.1, any and all existing appeals pending

before the state housing appeals board shall continue to be heard and decided in accordance with

this chapter until December 31, 2023. All appeals shall continue to be filed with the state housing

appeals board in accordance with this chapter until December 31, 2023.

     (a)(b) Whenever an application filed under the provisions of § 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 (“SHAB”)

established by § 45-53-7, for a review of the application superior court for the county in which the

property is situated. The appeal shall be taken within twenty (20) days after the date of the notice

recording and posting of the decision by the local review board by filing with the appeals board

superior court, a complaint, which contains a statement of the prior proceedings and the reasons

upon which the appeal is based. The appeal shall name the local review board as appellee.

     (b)(c) The appeals board shall immediately notify the local review board of the filing of

the petition for review. Municipalities shall submit the complete local review board record to the

state housing appeals board within thirty (30) days of receiving notification from SHAB that an

appeal has been filed.

     (c) [As amended by P.L. 2022, ch. 208, § 3 and P.L. 2022, ch. 209, § 3.] The appeal shall

be heard by the appeals board within twenty (20) days after the receipt of the applicant’s statement.

Four (4) active members, which may include an alternate, are necessary to conduct a hearing on an

appeal. 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 of members present and voting, 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

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

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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.

     (c)(d) [As amended by P.L. 2022, ch. 413, § 1 and P.L. 2022, ch. 414, § 1.] SHAB

decisions shall be made within nine (9) months of the filing of the appeal, which time period may

only be extended for good cause by an affirmative vote of the SHAB to so extend the time, if

circumstances demand more time. Any extension beyond the nine-month (9) period shall be limited

to the least extent reasonable and shall not cumulatively extend the decision period by more than

an additional two (2) months. Five (5) active members, which may include an alternate, are

necessary to conduct a hearing on appeal. 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 of the

members present at the proceeding; provided that, there is at least a minimum quorum of members

of the appeals board present and voting at the proceeding, 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 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)(e) 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 appeals 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

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     (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted

exercise of discretion.

     (e)(f) Any appeal from the superior court to the supreme court pursuant to this section shall

be by writ of certiorari.

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

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

     45-53-5.1. Appeals -- Judicial review [Effective January 1, 2024].

     (a) Effective January 1, 2024 as a replacement to § 45-53-5. A decision of a local review

board may be appealed by the applicant or an aggrieved party, as defined by § 45-24-31 to the

superior court for the county in which the property is situated. The appeal shall be taken within

twenty (20) days after the date of the recording and posting of the decision by the local review

board by filing with the superior court, a complaint which contains a statement of the prior

proceedings and the reasons upon which the appeal is based. The complaint shall name the local

review board as the appellee and serve the local review board with the appeal within twenty (20)

days of filing of the appeal. If an aggrieved party who is not the applicant files an appeal, the

original applicant shall be named as a party and served in the same manner as the local review

board.

     (b) The local review board shall not be required to answer the complaint, but it shall submit

the complete local review board record to superior court within thirty (30) days of receiving service

of the complaint. Should the local review board fail to file the record within thirty (30) days, the

applicant may move for default.

     (c) The appeal shall be expedited and given priority on the court calendar as soon as proof

of service of the complaint on the local review board is filed. The appeal shall be decided as soon

as possible by the superior court, without delay.

     (d) The review shall be conducted by the superior court without a jury. The court shall

consider the record of the hearing before the local review 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 record, constitutes

the record upon which the determination of the court is made.

     (e) The superior court shall review the appeal under the following standards:

     (1) Whether the decision was arbitrary and capricious or clearly erroneous in light of

considerations regarding:

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

affordable housing plan;

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     (ii) 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;

     (iii) The consideration of environmental protection;

     (iv) The state’s need for low-and moderate-income housing;

     (v) The need to protect the health and safety of the occupants of the proposed housing or

the residents of the city or town;

     (vi) The need to promote better site and building design in relation to the surroundings or

to preserve open space; and

     (vii) Whether the reasons for denial, local zoning or land use ordinances, requirements and

regulations are applied as equally as possible to both subsidized and unsubsidized housing.

     (f) If the appeal is by an applicant for a decision approving an application with conditions,

the superior court shall, in addition to reviewing the standards and considerations set forth in

subsection (e) of this section, determine whether such conditions and requirements imposed make

the construction or operation of the housing infeasible.

     (g) The court shall not substitute its judgment for that of the local review board as to the

weight of the evidence on questions of fact. The court may affirm the decision of the local review

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 that were arbitrary, capricious or unreasonable.

     (h) Any appeal from the superior court to the supreme court pursuant to this section shall

be by writ of certiorari.

     (i) Effective January 1, 2024, all matters pending before the state housing appeals board

shall be transferred to superior court for the county in which the property is situated by the applicant

filing a complaint in superior court and providing a copy of the complaint to the attorney

representing the local review board within ten (10) days of filing. An applicant with an appeal

pending before the state housing appeals board shall have until March 1, 2024, to file the complaint

transferring the matter to superior court for the county in which the property is situated. The parties

shall be required to file the entire record before the state housing appeals board with superior court

within forty-five (45) days of the filing of the complaint.

     (j) Effective January 1, 2024, this section shall replace the provisions of § 45-53-5 and any

reference in the general laws to § 45-53-5 shall mean §45-53-5.1.

     SECTION 3. Sections 45-53-6 and 45-53-7 of the General Laws in Chapter 45-53 entitled

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

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     45-53-6. Powers of state housing appeals board Powers of state housing appeals board

[Effective until January 1, 2024].

     (a) Effective until January 1, 2024, the 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 §§ 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

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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 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 § 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, bylaws 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

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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 § 45-24-53.

     (ii) Notwithstanding the provisions of subsection (f)(1) of this section, if the zoning board

of review determined the application to be substantially complete and/or acted in a 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 § 45-53-4 applications that

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 subsection (f)(1) of this section, 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 subsection (f)(1) of this section,

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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.

     (g) This section shall sunset on January 1, 2024.

     45-53-7. Housing appeals board Housing appeals board [Effective until January 1,

2024].

     (a)(1) Effective until January 1, 2024 there There shall be within the state a housing appeals

board consisting of nine (9) voting members and three (3) alternates as follows: one voting member

who shall be from the Center for Justice Rhode Island; one voting member who shall be from Direct

Action for Rights and Equality (DARE); and seven (7) voting members to be appointed by the

governor, who shall include four (4) local officials, who shall not be from the same city or town;

two (2) of whom shall be from a city or town with a population of less than twenty-five thousand

(25,000); and two (2) of whom shall be from a city or town with a population of twenty-five

thousand (25,000) or greater, and shall include one local zoning board member, one local planning

board member, one city council member and one town council member, one of the local official

members shall be designated by the governor as the alternative local official member who shall be

a voting member of the board only in the event that one or more of the other three (3) local officials

is unable to serve at a hearing; one affordable housing developer; one affordable housing advocate;

one representative of the business community; and one attorney knowledgeable in land use

regulation, who should be chairperson of the board. There shall be two (2) additional alternates

appointed by the governor chosen from candidates submitted by realtors or developers doing

business in the state and the alternates shall rotate service as a voting member at the discretion of

the chairperson.

     (2) Those members of the board as of July 2, 2004, who were appointed to the board by

members of the general assembly shall cease to be members of the board on July 2, 2004, and the

governor shall thereupon nominate four (4) new members each of whom shall serve for the balance

of the current term of his or her predecessor.

     (3) All other members of the commission as of July 2, 2004, shall continue to serve for the

duration of their current terms.

     (4) All gubernatorial appointments made under this section after July 2, 2004, shall be

subject to the advice and consent of the senate.

     (b)(1) All appointments are for two-year (2) terms; except as otherwise provided in

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subsection (a)(2) of this section, the terms of members appointed after December 31, 2004, shall

be for three (3) years. Each member who is duly appointed or continued in office after January 1,

2005, shall hold office for the term for which the member is appointed and until the member’s

successor shall have been appointed and qualified, or until the member’s earlier death, resignation,

or removal. A member shall receive no compensation for his or her services, but shall be reimbursed

by the state for all reasonable expenses actually and necessarily incurred in the performance of his

or her official duties. The board shall hear all petitions for review filed under § 45-53-5, and shall

conduct all hearings in accordance with the rules and regulations established by the chair. Rhode

Island housing shall provide space, and clerical and other assistance, as the board may require.

     (2) Provided, effective January 1, 2023, the Rhode Island housing resources commission

(the “commission”) established pursuant to chapter 128 of title 42 shall provide all space, and

clerical and other assistance, as the board may require. All duties and responsibilities of Rhode

Island housing resources commission as to providing space, clerical and other assistance to the

board pursuant to subsection (b)(1) of this section shall be transferred to the commission effective

January 1, 2023.

     (c) This section shall sunset on January 1, 2024.

     SECTION 4. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO TOWNS AND CITIES -- LOW AND MODERATE INCOME HOUSING

***

     This act would amend several sections of law relating to low-and moderate-income housing

and the application, appeal, and judicial review process.

     This act would take effect upon passage.

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