2023 -- S 1050
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LC002505
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S TATE OF RHODE IS LAND
IN GENERAL ASSEMBLY
JANUARY SESSION, A.D. 2023
____________
A N A C T
RELATING TO TOWNS AN D CITIES -- LOW AND MODERATE INCOME HOUS ING
Introduced By: Senators McKenney, and Pearson
Date Introduced: May 19, 2023
Referred To: Senate Judiciary
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 1
"Low and Moderate Income Housing" are hereby amended to read as follows: 2
45-53-4. Procedure for approval of construction of low- or moderate-income housing. 3
(a) Any applicant proposing to build low- or moderate-income housing may submit to the 4
local review board a single application for a comprehensive permit to build that housing in lieu of 5
separate applications to the applicable local boards. This procedure is only available for proposals 6
in which at least twenty-five percent (25%) of the housing is low- or moderate-income housing. 7
The application and review process for a comprehensive permit shall be as follows: 8
(1) Submission requirements. Applications for a comprehensive permit shall include: 9
(i) A letter of eligibility issued by the Rhode Island housing and mortgage finance 10
corporation, or in the case of projects primarily funded by the U.S. Department of Housing and 11
Urban Development or other state or federal agencies, an award letter indicating the subsidy, or 12
application in such form as may be prescribed for a municipal government subsidy; and 13
(ii) A written request to the local review board to submit a single application to build or 14
rehabilitate low- or moderate-income housing in lieu of separate applications to the applicable local 15
boards. The written request shall identify the specific sections and provisions of applicable local 16
ordinances and regulations from which the applicant is seeking relief; and 17
(iii) A proposed timetable for the commencement of construction and completion of the 18
project; and 19
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(iv) A sample land lease or deed restriction with affordability liens that will restrict use as 1
low- and moderate-income housing in conformance with the guidelines of the agency providing 2
the subsidy for the low- and moderate-income housing, but for a period of not less than thirty (30) 3
years; and 4
(v) Identification of an approved entity that will monitor the long-term affordability of the 5
low- and moderate-income units; provided, that, on and after July 1, 2022, this entity shall include 6
the Rhode Island housing resources commission established pursuant to chapter 128 of title 42 and 7
acting through its monitoring agents, and these agents shall monitor the long-term affordability of 8
the low- and moderate-income units pursuant to § 45-53-3.2; and 9
(vi) A financial pro-forma for the proposed development; and 10
(vii) For comprehensive permit applications: (A) Not involving major land developments 11
or major subdivisions including, but not limited to, applications seeking relief from specific 12
provisions of a local zoning ordinance, or involving administrative subdivisions, minor land 13
developments or minor subdivisions, or other local ordinances and regulations: those items required 14
by local regulations promulgated pursuant to applicable state law, with the exception of evidence 15
of state or federal permits; and for comprehensive permit applications; and (B) Involving major 16
land developments and major subdivisions, unless otherwise agreed to by the applicant and the 17
town; those items included in the checklist for the master plan in the local regulations promulgated 18
pursuant to § 45-23-40. Subsequent to master plan approval, the applicant must submit those items 19
included in the checklist for a preliminary plan for a major land development or major subdivision 20
project in the local regulations promulgated pursuant to § 45-23-41, with the exception of evidence 21
of state or federal permits. All required state and federal permits must be obtained prior to the final 22
plan approval or the issuance of a building permit; and 23
(viii) Municipalities may impose fees on comprehensive permit applications that are 24
consistent with but do not exceed fees that would otherwise be assessed for a project of the same 25
scope and type but not proceeding under this chapter, provided, however, that the imposition of 26
such fees shall not preclude a showing by a nonprofit applicant that the fees make the project 27
financially infeasible; and 28
(xi) Notwithstanding the submission requirements set forth above, the local review board 29
may request additional, reasonable documentation throughout the public hearing, including, but not 30
limited to, opinions of experts, credible evidence of application for necessary federal and/or state 31
permits, statements and advice from other local boards and officials. 32
(2) Certification of completeness. The application must be certified complete or incomplete 33
by the administrative officer according to the provisions of § 45-23-36; provided, however, that for 34
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a major land development or major subdivision, the certificate for a master plan shall be granted 1
within twenty-five (25) days and for a preliminary plan shall be granted within twenty-five (25) 2
days. The running of the time period set forth herein will be deemed stopped upon the issuance of 3
a certificate of incompleteness of the application by the administrative officer and will recommence 4
upon the resubmission of a corrected application by the applicant. However, in no event will the 5
administrative officer be required to certify a corrected submission as complete or incomplete less 6
than ten (10) days after its resubmission. If the administrative officer certifies the application as 7
incomplete, the officer shall set forth in writing with specificity the missing or incomplete items. 8
(3) Pre-application conference. Where the comprehensive permit application proposal is a 9
major land development project or a major subdivision pursuant to chapter 23 of this title a 10
municipality may require an applicant proposing a project under this chapter to first schedule a pre-11
application conference with the local review board, the technical review committee established 12
pursuant to § 45-23-56, or with the administrative officer for the local review board and other local 13
officials, as appropriate. To request a pre-application conference, the applicant shall submit a short 14
description of the project in writing including the number of units, type of housing, as well as a 15
location map. The purpose of the pre-application conference shall be to review a concept plan of 16
the proposed development. Upon receipt of a request by an applicant for a pre-application 17
conference, the municipality has thirty (30) days to schedule and hold the pre-application 18
conference. If thirty (30) days has elapsed from the filing of the pre-application submission and no 19
pre-application conference has taken place, nothing shall be deemed to preclude an applicant from 20
thereafter filing and proceeding with an application for a comprehensive permit. 21
(4) Review of applications. An application filed in accordance with this chapter shall be 22
reviewed by the local review board at a public hearing in accordance with the following provisions: 23
(i) Notification. Upon issuance of a certificate of completeness for a comprehensive permit, 24
the local review board shall immediately notify each local board, as applicable, of the filing of the 25
application, by sending a copy to the local boards and to other parties entitled to notice of hearings 26
on applications under the zoning ordinance and/or land development and subdivision regulations 27
as applicable. 28
(ii) Public notice. Public notice for all public hearings will be the same notice required 29
under local regulations for a public hearing for a preliminary plan promulgated in accordance with 30
§ 45-23-42. The cost of notice shall be paid by the applicant. 31
(iii) Review of minor projects. The review of a comprehensive permit application involving 32
only minor land developments or minor subdivisions or requesting zoning ordinance relief or relief 33
from other local regulations or ordinances not otherwise addressed in this subsection, shall be 34
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conducted following the procedures in the applicable local regulations, with the exception that all 1
minor land developments or minor subdivisions under this section are required to hold a public 2
hearing on the application, and within ninety-five (95) days of issuance of the certificate of 3
completeness, or within such further time as is agreed to by the applicant and the local review 4
board, render a decision. 5
(iv) Review of major projects. In the review of a comprehensive permit application 6
involving a major land development and/or major subdivision, the local review board shall hold a 7
public hearing on the master plan and shall, within ninety (90) days of issuance of the certification 8
of completeness, or within such further amount of time as may be agreed to by the local review 9
board and the applicant, render a decision. Preliminary and final plan review shall be conducted 10
according to local regulations promulgated pursuant to chapter 23 of this title except as otherwise 11
specified in this section. 12
(v) Required findings. In approving an application, the local review board shall make 13
positive findings, supported by legally competent evidence on the record that discloses the nature 14
and character of the observations upon which the fact finders acted, on each of the following 15
standard provisions, where applicable: 16
(A) The proposed development is consistent with local needs as identified in the local 17
comprehensive community plan with particular emphasis on the community’s affordable housing 18
plan and/or has satisfactorily addressed the issues where there may be inconsistencies. 19
(B) The proposed development is in compliance with the standards and provisions of the 20
municipality’s zoning ordinance and subdivision regulations, and/or where expressly varied or 21
waived local concerns that have been affected by the relief granted do not outweigh the state and 22
local need for low- and moderate-income housing. 23
(C) All low- and moderate-income housing units proposed are integrated throughout the 24
development; are compatible in scale and architectural style to the market rate units within the 25
project; and will be built and occupied prior to, or simultaneous with the construction and 26
occupancy of any market rate units. 27
(D) There will be no significant negative environmental impacts from the proposed 28
development as shown on the final plan, with all required conditions for approval. 29
(E) There will be no significant negative impacts on the health and safety of current or 30
future residents of the community, in areas including, but not limited to, safe circulation of 31
pedestrian and vehicular traffic, provision of emergency services, sewerage disposal, availability 32
of potable water, adequate surface water run-off, and the preservation of natural, historical, or 33
cultural features that contribute to the attractiveness of the community. 34
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(F) All proposed land developments and all subdivisions lots will have adequate and 1
permanent physical access to a public street in accordance with the requirements of § 45-23-60(5). 2
(G) The proposed development will not result in the creation of individual lots with any 3
physical constraints to development that building on those lots according to pertinent regulations 4
and building standards would be impracticable, unless created only as permanent open space or 5
permanently reserved for a public purpose on the approved, recorded plans. 6
(vi) The local review board has the same power to issue permits or approvals that any local 7
board or official who would otherwise act with respect to the application, including, but not limited 8
to, the power to attach to the permit or approval, conditions, and requirements with respect to 9
height, site plan, size or shape, or building materials, as are consistent with the terms of this section. 10
(vii) In reviewing the comprehensive permit request, the local review board may deny the 11
request for any of the following reasons: (A) If the city or town has an approved affordable housing 12
plan and is meeting housing needs, and the proposal is inconsistent with the affordable housing 13
plan; provided that, the local review board also finds that the municipality has made significant 14
progress in implementing that housing plan; (B) The proposal is not consistent with local needs, 15
including, but not limited to, the needs identified in an approved comprehensive plan, and/or local 16
zoning ordinances and procedures promulgated in conformance with the comprehensive plan; (C) 17
The proposal is not in conformance with the comprehensive plan; (D) The community has met or 18
has plans to meet the goal of ten percent (10%) of the year-round units or, in the case of an urban 19
town or city, fifteen percent (15%) of the occupied rental housing units as defined in § 45-53-3(4)(i) 20
being low- and moderate-income housing; provided that, the local review board also finds that the 21
community has achieved or has made significant progress towards meeting the goals required by 22
this section; or (E) Concerns for the environment and the health and safety of current residents have 23
not been adequately addressed. 24
(viii) All local review board decisions on comprehensive permits shall be by majority vote 25
of the members present at the proceeding; provided that, there is at least a quorum of the local 26
review board present and voting at the proceeding, and may be appealed by the applicant to the 27
state housing appeals board. 28
(ix) If the public hearing is not convened or a decision is not rendered within the time 29
allowed in subsections (a)(4)(iii) and (iv), the application is deemed to have been allowed and the 30
relevant approval shall issue immediately; provided, however, that this provision shall not apply to 31
any application remanded for hearing in any town where more than one application has been 32
remanded for hearing provided for in § 45-53-6(f)(2). 33
(x) Any person aggrieved by the issuance of an approval may appeal to the superior court 34
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within twenty (20) days of the issuance of approval. 1
(xi) A comprehensive permit shall expire unless construction is started within twelve (12) 2
months and completed within sixty (60) months of final plan approval unless a longer and/or phased 3
period for development is agreed to by the local review board and the applicant. Low- and 4
moderate-income housing units shall be built and occupied prior to, or simultaneous with the 5
construction and occupancy of market rate units. 6
(xii) A town with an approved affordable housing plan and that is meeting local housing 7
needs may by council action limit the annual total number of dwelling units in comprehensive 8
permit applications from for-profit developers to an aggregate of one percent (1%) of the total 9
number of year-round housing units in the town, as recognized in the affordable housing plan and 10
notwithstanding the timetables set forth elsewhere in this section, the local review board shall have 11
the authority to consider comprehensive permit applications from for-profit developers, which are 12
made pursuant to this paragraph, sequentially in the order in which they are submitted. 13
(xiii) The local review board of a town with an approved affordable housing plan shall 14
report the status of implementation to the housing resources commission, including the disposition 15
of any applications made under the plan, as of June 30, 2006, by September 1, 2006, and for each 16
June 30 thereafter by September 1 through 2010. The housing resources commission shall prepare 17
by October 15 and adopt by December 31, a report on the status of implementation, which shall be 18
submitted to the governor, the speaker, and the president of the senate, and the chairperson of the 19
state housing appeals board, and shall find which towns are not in compliance with implementation 20
requirements. 21
(xiv) Notwithstanding the provisions of § 45-53-4 in effect on February 13, 2004, to 22
commence hearings within thirty (30) days of receiving an application remanded by the state 23
housing appeals board pursuant to § 45-53-6(f)(2) 45-53-5 or, effective January 1, 2024, § 45-53-24
5.1 shall be heard as herein provided; in any town with more than one remanded application, 25
applications may be scheduled for hearing in the order in which they were received, and may be 26
taken up sequentially, with the thirty-day (30) requirement for the initiation of hearings, 27
commencing upon the decision of the earlier filed application. 28
(b)(1) The general assembly finds and declares that in January 2004 towns throughout 29
Rhode Island have been confronted by an unprecedented volume and complexity of development 30
applications as a result of private for-profit developers using the provisions of this chapter and that 31
in order to protect the public health and welfare in communities and to provide sufficient time to 32
establish a reasonable and orderly process for the consideration of applications made under the 33
provisions of this chapter, and to have communities prepare plans to meet low- and moderate-34
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income housing goals, that it is necessary to impose a moratorium on the use of comprehensive 1
permit applications as herein provided by private for-profit developers; a moratorium is hereby 2
imposed on the use of the provisions of this chapter by private for-profit developers, which 3
moratorium shall be effective on passage and shall expire on January 31, 2005, and may be revisited 4
prior to expiration and extended to such other date as may be established by law. Notwithstanding 5
the provisions of subsection (a) of this section, private for-profit developers may not utilize the 6
procedure of this chapter until the expiration of the moratorium. 7
(2) No for-profit developer shall submit a new application for comprehensive permits until 8
July 1, 2005, except by mutual agreement with the local review board. 9
(3) Notwithstanding the provisions of subdivision (b)(2) of this section, a local review 10
board in a town which has submitted a plan in accordance with subsection (c) of this section, shall 11
not be required to accept an application for a new comprehensive permit from a for-profit developer 12
until October 1, 2005. 13
(c) Towns and cities that are not in conformity with the provisions of § 45-53-3(4)(i) shall 14
prepare by December 31, 2004, a comprehensive plan housing element for low- and moderate-15
income housing as specified by § 45-53-3(4)(ii), consistent with applicable law and regulation. 16
That the secretary of the planning board or commission of each city or town subject to the 17
requirements of this paragraph shall report in writing the status of the preparation of the housing 18
element for low- and moderate-income housing on or before June 30, 2004, and on or before 19
December 31, 2004, to the secretary of the state planning council, to the chair of the house 20
committee on corporations and to the chair of the senate committee on commerce, housing and 21
municipal government. The state housing appeals board shall use said plan elements in making 22
determinations provided for in § 45-53-6(c)(2). 23
(d) If any provision of this section or the application thereof shall for any reason be judged 24
invalid, the judgment shall not affect, impair, or invalidate the remainder of this section or of any 25
other provision of this chapter, but shall be confined in its effect to the provision or application 26
directly involved in the controversy giving rise to the judgment, and a moratorium on the 27
applications of for-profit developers pursuant to this chapter shall remain and continue to be in 28
effect for the period commencing on the day this section becomes law [February 13, 2004] and 29
continue until it shall expire on January 31, 2005, or until amended further. 30
(e) In planning for, awarding, and otherwise administering programs and funds for housing 31
and for community development, state departments, agencies, boards and commissions, and public 32
corporations, as defined in chapter 18 of title 35, shall among the towns subject to the provision of 33
§ 45-53-3(ii), give priority to the maximum extent allowable by law to towns with an approved 34
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affordable housing plan. The director of administration shall adopt not later than January 31, 2005, 1
regulations to implement the provisions of this section. 2
(f) Multi-family rental units built under a comprehensive permit may be calculated towards 3
meeting the requirements of a municipality’s low- or moderate-income housing inventory, as long 4
as the units meet and are in compliance with the provisions of § 45-53-3.1. 5
45-53-5. Appeals to state housing appeals board — Judicial review. [Effective 6
January 1, 2023.] Appeals -- Judicial review [Effective until January 1, 2024]. 7
(a) Effective July 1, 2023, until January 1, 2024, at which time the provisions of this section 8
shall sunset and be repealed and replaced by § 45-53-5.1, any and all existing appeals pending 9
before the state housing appeals board shall continue to be heard and decided in accordance with 10
this chapter until December 31, 2023. All appeals shall continue to be filed with the state housing 11
appeals board in accordance with this chapter until December 31, 2023. 12
(a)(b) Whenever an application filed under the provisions of § 45-53-4 is denied, or is 13
granted with conditions and requirements that make the building or operation of the housing 14
infeasible, the applicant has the right to appeal to the state housing appeals board (“SHAB”) 15
established by § 45-53-7, for a review of the application superior court for the county in which the 16
property is situated. The appeal shall be taken within twenty (20) days after the date of the notice 17
recording and posting of the decision by the local review board by filing with the appeals board 18
superior court, a complaint, which contains a statement of the prior proceedings and the reasons 19
upon which the appeal is based. The appeal shall name the local review board as appellee. 20
(b)(c) The appeals board shall immediately notify the local review board of the filing of 21
the petition for review. Municipalities shall submit the complete local review board record to the 22
state housing appeals board within thirty (30) days of receiving notification from SHAB that an 23
appeal has been filed. 24
(c) [As amended by P.L. 2022, ch. 208, § 3 and P.L. 2022, ch. 209, § 3.] The appeal shall 25
be heard by the appeals board within twenty (20) days after the receipt of the applicant’s statement. 26
Four (4) active members, which may include an alternate, are necessary to conduct a hearing on an 27
appeal. A stenographic record of the proceedings shall be kept and the appeals board shall render a 28
written decision and order, based upon a majority vote of members present and voting, stating its 29
findings of fact, and its conclusions and the reasons for those conclusions, within thirty (30) days 30
after the termination of the hearing, unless the time has been extended by mutual agreement 31
between the appeals board and the applicant. The decision and order may be appealed in the 32
superior court within twenty (20) days of the issuance of the decision. The review shall be 33
conducted by the superior court without a jury. The court shall consider the record of the hearing 34
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before the state housing appeals board and, if it appears to the court that additional evidence is 1
necessary for the proper disposition of the matter, it may allow any party to the appeal to present 2
that evidence in open court, which evidence, along with the report, constitutes the record upon 3
which the determination of the court is made. 4
(c)(d) [As amended by P.L. 2022, ch. 413, § 1 and P.L. 2022, ch. 414, § 1.] SHAB 5
decisions shall be made within nine (9) months of the filing of the appeal, which time period may 6
only be extended for good cause by an affirmative vote of the SHAB to so extend the time, if 7
circumstances demand more time. Any extension beyond the nine-month (9) period shall be limited 8
to the least extent reasonable and shall not cumulatively extend the decision period by more than 9
an additional two (2) months. Five (5) active members, which may include an alternate, are 10
necessary to conduct a hearing on appeal. A stenographic record of the proceedings shall be kept 11
and the appeals board shall render a written decision and order, based upon a majority vote of the 12
members present at the proceeding; provided that, there is at least a minimum quorum of members 13
of the appeals board present and voting at the proceeding, stating its findings of fact, and its 14
conclusions and the reasons for those conclusions, within thirty (30) days after the termination of 15
the hearing, unless the time has been extended by mutual agreement between the appeals board and 16
the applicant. The decision and order may be appealed in the superior court within twenty (20) days 17
of the issuance of the decision. The review shall be conducted by the superior court without a jury. 18
The court shall consider the record of the hearing before the state housing appeals board and, if it 19
appears to the court that additional evidence is necessary for the proper disposition of the matter, it 20
may allow any party to the appeal to present that evidence in open court, which evidence, along 21
with the report, constitutes the record upon which the determination of the court is made. 22
(d)(e) The court shall not substitute its judgment for that of the state housing appeals board 23
as to the weight of the evidence on questions of fact. The court may affirm the decision of the state 24
housing appeals board or remand the case for further proceedings, or may reverse or modify the 25
decision if substantial rights of the appellant have been prejudiced because of findings, inferences, 26
conclusions, or decisions which are: 27
(1) In violation of constitutional, statutory, or ordinance provisions; 28
(2) In excess of the authority granted to the state housing appeals board by statute or 29
ordinance; 30
(3) Made upon unlawful procedure; 31
(4) Affected by other error of law; 32
(5) Clearly erroneous in view of the reliable, probative, and substantial evidence of the 33
whole record; or 34
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(6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted 1
exercise of discretion. 2
(e)(f) Any appeal from the superior court to the supreme court pursuant to this section shall 3
be by writ of certiorari. 4
SECTION 2. Chapter 45-53 of the General Laws entitled "Low and Moderate Income 5
Housing" is hereby amended by adding thereto the following section: 6
45-53-5.1. Appeals -- Judicial review [Effective January 1, 2024]. 7
(a) Effective January 1, 2024 as a replacement to § 45-53-5. A decision of a local review 8
board may be appealed by the applicant or an aggrieved party, as defined by § 45-24-31 to the 9
superior court for the county in which the property is situated. The appeal shall be taken within 10
twenty (20) days after the date of the recording and posting of the decision by the local review 11
board by filing with the superior court, a complaint which contains a statement of the prior 12
proceedings and the reasons upon which the appeal is based. The complaint shall name the local 13
review board as the appellee and serve the local review board with the appeal within twenty (20) 14
days of filing of the appeal. If an aggrieved party who is not the applicant files an appeal, the 15
original applicant shall be named as a party and served in the same manner as the local review 16
board. 17
(b) The local review board shall not be required to answer the complaint, but it shall submit 18
the complete local review board record to superior court within thirty (30) days of receiving service 19
of the complaint. Should the local review board fail to file the record within thirty (30) days, the 20
applicant may move for default. 21
(c) The appeal shall be expedited and given priority on the court calendar as soon as proof 22
of service of the complaint on the local review board is filed. The appeal shall be decided as soon 23
as possible by the superior court, without delay. 24
(d) The review shall be conducted by the superior court without a jury. The court shall 25
consider the record of the hearing before the local review board and, if it appears to the court that 26
additional evidence is necessary for the proper disposition of the matter, it may allow any party to 27
the appeal to present that evidence in open court, which evidence, along with the record, constitutes 28
the record upon which the determination of the court is made. 29
(e) The superior court shall review the appeal under the following standards: 30
(1) Whether the decision was arbitrary and capricious or clearly erroneous in light of 31
considerations regarding: 32
(i) The consistency of the decision to deny or condition the permit with the approved 33
affordable housing plan; 34
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(ii) The extent to which the community meets or plans to meet housing needs, as defined 1
in an affordable housing plan, including, but not limited to, the ten percent (10%) goal for existing 2
low-and moderate-income housing units as a proportion of year-round housing; 3
(iii) The consideration of environmental protection; 4
(iv) The state’s need for low-and moderate-income housing; 5
(v) The need to protect the health and safety of the occupants of the proposed housing or 6
the residents of the city or town; 7
(vi) The need to promote better site and building design in relation to the surroundings or 8
to preserve open space; and 9
(vii) Whether the reasons for denial, local zoning or land use ordinances, requirements and 10
regulations are applied as equally as possible to both subsidized and unsubsidized housing. 11
(f) If the appeal is by an applicant for a decision approving an application with conditions, 12
the superior court shall, in addition to reviewing the standards and considerations set forth in 13
subsection (e) of this section, determine whether such conditions and requirements imposed make 14
the construction or operation of the housing infeasible. 15
(g) The court shall not substitute its judgment for that of the local review board as to the 16
weight of the evidence on questions of fact. The court may affirm the decision of the local review 17
board or remand the case for further proceedings, or may reverse or modify the decision if 18
substantial rights of the appellant have been prejudiced because of findings, inferences, 19
conclusions, or decisions that were arbitrary, capricious or unreasonable. 20
(h) Any appeal from the superior court to the supreme court pursuant to this section shall 21
be by writ of certiorari. 22
(i) Effective January 1, 2024, all matters pending before the state housing appeals board 23
shall be transferred to superior court for the county in which the property is situated by the applicant 24
filing a complaint in superior court and providing a copy of the complaint to the attorney 25
representing the local review board within ten (10) days of filing. An applicant with an appeal 26
pending before the state housing appeals board shall have until March 1, 2024, to file the complaint 27
transferring the matter to superior court for the county in which the property is situated. The parties 28
shall be required to file the entire record before the state housing appeals board with superior court 29
within forty-five (45) days of the filing of the complaint. 30
(j) Effective January 1, 2024, this section shall replace the provisions of § 45-53-5 and any 31
reference in the general laws to § 45-53-5 shall mean §45-53-5.1. 32
SECTION 3. Sections 45-53-6 and 45-53-7 of the General Laws in Chapter 45-53 entitled 33
"Low and Moderate Income Housing" are hereby amended to read as follows: 34
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45-53-6. Powers of state housing appeals board Powers of state housing appeals board 1
[Effective until January 1, 2024]. 2
(a) Effective until January 1, 2024, the The state housing appeals board shall have the 3
powers to: (i) Adopt, amend, and repeal rules and regulations that are consistent with this chapter 4
and are necessary to implement the requirements of §§ 45-53-5, 45-53-6, and 45-53-7; (ii) Receive 5
and expend state appropriations; and (iii) Establish a reasonable fee schedule, which may be 6
waived, to carry out its duties. 7
(b) In hearing the appeal, the state housing appeals board shall determine whether: (i) In 8
the case of the denial of an application, the decision of the local review board was consistent with 9
an approved affordable housing plan, or if the town does not have an approved affordable housing 10
plan, was reasonable and consistent with local needs; and (ii) In the case of an approval of an 11
application with conditions and requirements imposed, whether those conditions and requirements 12
make the construction or operation of the housing infeasible and whether those conditions and 13
requirements are consistent with an approved affordable housing plan, or if the town does not have 14
an approved affordable housing plan, are consistent with local needs. 15
(c) In making a determination, the standards for reviewing the appeal include, but are not 16
limited to: 17
(1) The consistency of the decision to deny or condition the permit with the approved 18
affordable housing plan and/or approved comprehensive plan; 19
(2) The extent to which the community meets or plans to meet housing needs, as defined 20
in an affordable housing plan, including, but not limited to, the ten percent (10%) goal for existing 21
low- and moderate-income housing units as a proportion of year-round housing; 22
(3) The consideration of the health and safety of existing residents; 23
(4) The consideration of environmental protection; and 24
(5) The extent to which the community applies local zoning ordinances and review 25
procedures evenly on subsidized and unsubsidized housing applications alike. 26
(d) If the appeals board finds, in the case of a denial, that the decision of the local review 27
board was not consistent with an approved affordable housing plan, or if the town does not have an 28
approved affordable housing plan, was not reasonable and consistent with local needs, it shall 29
vacate the decision and issue a decision and order approving the application, denying the 30
application, or approving with various conditions consistent with local needs. If the appeals board 31
finds, in the case of an approval with conditions and requirements imposed, that the decision of the 32
local review board makes the building or operation of the housing infeasible, and/or the conditions 33
and requirements are not consistent with an approved affordable housing plan, or if the town does 34
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not have an approved affordable housing plan, are not consistent with local needs, it shall issue a 1
decision and order, modifying or removing any condition or requirement so as to make the proposal 2
no longer infeasible and/or consistent, and approving the application; provided, that the appeals 3
board shall not issue any decision and order that would permit the building or operation of the 4
housing in accordance with standards less safe than the applicable building and site plan 5
requirements of the federal Department of Housing and Urban Development or the Rhode Island 6
housing and mortgage finance corporation, whichever agency is financially assisting the housing. 7
Decisions or conditions and requirements imposed by a local review board that are consistent with 8
approved affordable housing plans and/or with local needs shall not be vacated, modified, or 9
removed by the appeals board notwithstanding that the decision or conditions and requirements 10
have the effect of denying or making the applicant’s proposal infeasible. 11
(e) The appeals board or the applicant has the power to enforce the orders of the appeals 12
board by an action brought in the superior court. The local review board shall carry out the decision 13
and order of the appeals board within thirty (30) days of its entry and, upon failure to do so, the 14
decision and order of the appeals board is, for all purposes, deemed to be the action of the local 15
review board, unless the applicant consents to a different decision or order by the local review 16
board. The decision and order of the appeals board is binding on the city or town, which shall 17
immediately issue any and all necessary permits and approvals to allow the construction and 18
operation of the housing as approved by the appeals board. 19
(f) The state housing appeals board shall: 20
(1) Upon an appeal of the applicant prior to August 1, 2004, rule on December 1, 2004, on 21
the substantial completeness of applications as of February 13, 2004, that were affected by the 22
moratorium established by § 45-53-4(b). 23
(i) The determination of substantial completeness shall be based on whether there was on 24
or before February 13, 2004, substantial completeness of substantially all of the following: 25
(A) A written request to the zoning board of review to submit a single application to build 26
or rehabilitate low- or moderate-income housing in lieu of separate applications to the application 27
local boards; 28
(B) A written list of variances, special use permits and waivers requested to local 29
requirements and regulations, including local codes, ordinances, bylaws or regulations, including 30
any requested waivers from the land development or subdivisions regulations, and a proposed 31
timetable for completion of the project; 32
(C) Evidence of site control; 33
(D) Evidence of eligibility for a state or federal government subsidy, including a letter from 34
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the funding agency indicating the applicant and the project; 1
(E) Site development plans showing the locations and outlines of proposed buildings; the 2
proposed location, general dimensions, and materials for street, drives, parking areas, walks, and 3
paved areas; proposed landscaping improvements and open areas within the site; and the proposed 4
location and types of sewage, drainage, and water facilities; 5
(F) A report on existing site conditions and a summary of conditions in the surrounding 6
areas, showing the location and nature of existing buildings, existing street elevations, traffic 7
patterns and character of open areas, including wetlands and flood plains, in the neighborhood; 8
(G) A tabulation of proposed buildings by type, size (number of bedrooms, floor area) and 9
ground coverage and a summary showing the percentage of the tract to be occupied by buildings, 10
by parking and other paved vehicular areas and by open spaces; 11
(H) A master plan, if the development proposal is for a major or minor land development 12
plan or a major or minor subdivision; 13
(I) a sample land lease or deed restrictions with affordability liens that will restrict use as 14
low- and moderate-income housing units for a period of not less than thirty (30) years; and 15
(J) The list of all persons entitled to notice in accordance with § 45-24-53. 16
(ii) Notwithstanding the provisions of subsection (f)(1) of this section, if the zoning board 17
of review determined the application to be substantially complete and/or acted in a manner 18
demonstrating that it considered the application substantially complete for the purposes of 19
reviewing the application, the state housing appeals board shall consider the application 20
substantially complete. 21
(2) Remand for hearing in accordance with the provisions of § 45-53-4 applications that 22
are determined to be substantially complete, which hearings may be conducted (or resume) under 23
the provisions in effect on February 13, 2004, unless the applicant and the board shall mutually 24
agree that the hearing shall proceed under the provisions in effect on December 1, 2004, which 25
hearings may commence on or after January 1, 2005, but shall commence not later than January 26
31, 2005, on applications in the order in which they were received by the town, unless a different 27
commencement date is mutually agreed to by the applicant and the local board hearing the 28
applications; the local review board shall not be obligated to hear, and may deny, any application 29
affected by the moratorium unless it was determined to be substantially complete in accordance 30
with the provisions of subsection (f)(1) of this section, and the local review board may require such 31
additional submissions as may be specified by the town or necessary for the review of the 32
application. 33
(3) Hear and decide appeals, other than those covered by subsection (f)(1) of this section, 34
LC002505 - Page 15 of 17
for which it took jurisdiction on or before May 1, 2004. 1
(4) Continue to hear and decide appeals filed by nonprofit organizations. 2
(5) Conduct such other business as may be reasonable and appropriate in order to facilitate 3
an orderly transfer of activities to the state housing appeals board as it shall be constituted after 4
January 1, 2005. 5
(g) This section shall sunset on January 1, 2024. 6
45-53-7. Housing appeals board Housing appeals board [Effective until January 1, 7
2024]. 8
(a)(1) Effective until January 1, 2024 there There shall be within the state a housing appeals 9
board consisting of nine (9) voting members and three (3) alternates as follows: one voting member 10
who shall be from the Center for Justice Rhode Island; one voting member who shall be from Direct 11
Action for Rights and Equality (DARE); and seven (7) voting members to be appointed by the 12
governor, who shall include four (4) local officials, who shall not be from the same city or town; 13
two (2) of whom shall be from a city or town with a population of less than twenty-five thousand 14
(25,000); and two (2) of whom shall be from a city or town with a population of twenty-five 15
thousand (25,000) or greater, and shall include one local zoning board member, one local planning 16
board member, one city council member and one town council member, one of the local official 17
members shall be designated by the governor as the alternative local official member who shall be 18
a voting member of the board only in the event that one or more of the other three (3) local officials 19
is unable to serve at a hearing; one affordable housing developer; one affordable housing advocate; 20
one representative of the business community; and one attorney knowledgeable in land use 21
regulation, who should be chairperson of the board. There shall be two (2) additional alternates 22
appointed by the governor chosen from candidates submitted by realtors or developers doing 23
business in the state and the alternates shall rotate service as a voting member at the discretion of 24
the chairperson. 25
(2) Those members of the board as of July 2, 2004, who were appointed to the board by 26
members of the general assembly shall cease to be members of the board on July 2, 2004, and the 27
governor shall thereupon nominate four (4) new members each of whom shall serve for the balance 28
of the current term of his or her predecessor. 29
(3) All other members of the commission as of July 2, 2004, shall continue to serve for the 30
duration of their current terms. 31
(4) All gubernatorial appointments made under this section after July 2, 2004, shall be 32
subject to the advice and consent of the senate. 33
(b)(1) All appointments are for two-year (2) terms; except as otherwise provided in 34
LC002505 - Page 16 of 17
subsection (a)(2) of this section, the terms of members appointed after December 31, 2004, shall 1
be for three (3) years. Each member who is duly appointed or continued in office after January 1, 2
2005, shall hold office for the term for which the member is appointed and until the member’s 3
successor shall have been appointed and qualified, or until the member’s earlier death, resignation, 4
or removal. A member shall receive no compensation for his or her services, but shall be reimbursed 5
by the state for all reasonable expenses actually and necessarily incurred in the performance of his 6
or her official duties. The board shall hear all petitions for review filed under § 45-53-5, and shall 7
conduct all hearings in accordance with the rules and regulations established by the chair. Rhode 8
Island housing shall provide space, and clerical and other assistance, as the board may require. 9
(2) Provided, effective January 1, 2023, the Rhode Island housing resources commission 10
(the “commission”) established pursuant to chapter 128 of title 42 shall provide all space, and 11
clerical and other assistance, as the board may require. All duties and responsibilities of Rhode 12
Island housing resources commission as to providing space, clerical and other assistance to the 13
board pursuant to subsection (b)(1) of this section shall be transferred to the commission effective 14
January 1, 2023. 15
(c) This section shall sunset on January 1, 2024. 16
SECTION 4. This act shall take effect upon passage. 17
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EXPLANATION
BY THE LEGISLATIVE COUNCIL
OF
A N A C T
RELATING TO TOWNS AN D CITIES -- LOW AND MODERATE INC OME HOUSING
***
This act would amend several sections of law relating to low-and moderate-income housing 1
and the application, appeal, and judicial review process. 2
This act would take effect upon passage. 3
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