(a)  The state housing appeals board shall have the powers to: (i) Adopt, amend, and repeal rules and regulations that are consistent with this chapter and are necessary to implement the requirements of §§ 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.

Terms Used In Rhode Island General Laws 45-53-6

  • Affordable housing plan: means a component of a housing element, as defined in § 45-22. See Rhode Island General Laws 45-53-3
  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Approved affordable housing plan: means an affordable housing plan that has been approved by the director of administration as meeting the guidelines for the local comprehensive plan as promulgated by the state planning council; provided, however, that state review and approval, for plans submitted by December 31, 2004, shall not be contingent on the city or town having completed, adopted, or amended its comprehensive plan as provided for in § 45-22. See Rhode Island General Laws 45-53-3
  • Comprehensive plan: means a comprehensive plan adopted and approved by a city or town pursuant to chapters 22. See Rhode Island General Laws 45-53-3
  • Consistent with local needs: means reasonable in view of the state need for low- and moderate-income housing, considered with the number of low-income persons in the city or town affected and the need to protect the health and safety of the occupants of the proposed housing or of the residents of the city or town, to promote better site and building design in relation to the surroundings, or to preserve open spaces, and if the local zoning or land use ordinances, requirements, and regulations are applied as equally as possible to both subsidized and unsubsidized housing. See Rhode Island General Laws 45-53-3
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Deed: The legal instrument used to transfer title in real property from one person to another.
  • Infeasible: means any condition brought about by any single factor or combination of factors, as a result of limitations imposed on the development by conditions attached to the approval of the comprehensive permit, to the extent that it makes it impossible for a public agency, nonprofit organization, or limited equity housing cooperative to proceed in building or operating low- or moderate-income housing without financial loss, within the limitations set by the subsidizing agency of government, on the size or character of the development, on the amount or nature of the subsidy, or on the tenants, rentals, and income permissible, and without substantially changing the rent levels and unit sizes proposed by the public agency, nonprofit organization, or limited equity housing cooperative. See Rhode Island General Laws 45-53-3
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
  • Local board: means any town or city official, zoning board of review, planning board or commission, board of appeal or zoning enforcement officer, local conservation commission, historic district commission, or other municipal board having supervision of the construction of buildings or the power of enforcing land use regulations, such as subdivision, or zoning laws. See Rhode Island General Laws 45-53-3
  • Local review board: means the planning board as defined by § 45-22. See Rhode Island General Laws 45-53-3
  • Low- or moderate-income housing: means any housing whether built or operated by any public agency or any nonprofit organization or by any limited equity housing cooperative or any private developer, that is subsidized by a federal, state, or municipal government subsidy under any program to assist the construction or rehabilitation of housing affordable to low- or moderate-income households, as defined in the applicable federal or state statute, or local ordinance and that will remain affordable through a land lease and/or deed restriction for ninety-nine (99) years or such other period that is either agreed to by the applicant and town or prescribed by the federal, state, or municipal government subsidy program but that is not less than thirty (30) years from initial occupancy. See Rhode Island General Laws 45-53-3
  • Mortgage: The written agreement pledging property to a creditor as collateral for a loan.
  • town: may be construed to include city; the words "town council" include city council; the words "town clerk" include city clerk; the words "ward clerk" include clerk of election district; the words "town treasurer" include city treasurer; and the words "town sergeant" include city sergeant. See Rhode Island General Laws 43-3-9

(b)  In hearing the appeal, the state housing appeals board shall determine whether: (i) In the case of the denial of an application, the decision of the local review board was consistent with an approved affordable housing plan, or if the town does not have an approved affordable housing plan, was reasonable and consistent with local needs; and (ii) In the case of an approval of an application with conditions and requirements imposed, whether those conditions and requirements make the construction or operation of the housing infeasible and whether those conditions and requirements are consistent with an approved affordable housing plan, or if the town does not have an approved affordable housing plan, are consistent with local needs.

(c)  In making a determination, the standards for reviewing the appeal include, but are not limited to:

(1)  The consistency of the decision to deny or condition the permit with the approved affordable housing plan and/or approved comprehensive plan;

(2)  The extent to which the community meets or plans to meet housing needs, as defined in an affordable housing plan, including, but not limited to, the ten percent (10%) goal for existing low- and moderate-income housing units as a proportion of year-round housing;

(3)  The consideration of the health and safety of existing residents;

(4)  The consideration of environmental protection; and

(5)  The extent to which the community applies local zoning ordinances and review procedures evenly on subsidized and unsubsidized housing applications alike.

(d)  If the appeals board finds, in the case of a denial, that the decision of the local review board was not consistent with an approved affordable housing plan, or if the town does not have an approved affordable housing plan, was not reasonable and consistent with local needs, it shall vacate the decision and issue a decision and order approving the application, denying the application, or approving with various conditions consistent with local needs. If the appeals board finds, in the case of an approval with conditions and requirements imposed, that the decision of the local review board makes the building or operation of the housing infeasible, and/or the conditions and requirements are not consistent with an approved affordable housing plan, or if the town does not have an approved affordable housing plan, are not consistent with local needs, it shall issue a decision and order, modifying or removing any condition or requirement so as to make the proposal no longer infeasible and/or consistent, and approving the application; provided, that the appeals board shall not issue any decision and order that would permit the building or operation of the housing in accordance with standards less safe than the applicable building and site plan requirements of the federal Department of Housing and Urban Development or the Rhode Island housing and mortgage finance corporation, whichever agency is financially assisting the housing. Decisions or conditions and requirements imposed by a local review board that are consistent with approved affordable housing plans and/or with local needs shall not be vacated, modified, or removed by the appeals board notwithstanding that the decision or conditions and requirements have the effect of denying or making the applicant’s proposal infeasible.

(e)  The appeals board or the applicant has the power to enforce the orders of the appeals board by an action brought in the 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 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, 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.

History of Section.
P.L. 1991, ch. 154, § 1; P.L. 2004, ch. 286, § 10; P.L. 2004, ch. 324, § 10; P.L. 2005, ch. 139, § 3; P.L. 2005, ch. 297, § 3; P.L. 2006, ch. 371, § 1; P.L. 2006, ch. 511, § 1; P.L. 2022, ch. 413, § 1, effective June 30, 2022; P.L. 2022, ch. 414, § 1, effective June 30, 2022.