§ 45-53-6 - Power of state housing appeals board.
SECTION 45-53-6
§ 45-53-6 Power of state housing appealsboard. – (a) The state housing appeals board shall have the powers to: (i) adopt, amendand repeal rules and regulations that are consistent with this chapter and arenecessary to implement the requirements of §§ 45-53-5, 45-53-6, and45-53-7; (ii) receive and expend state appropriations; and (iii) establish areasonable fee schedule, which may be waived, to carry out its duties.
(b) In hearing the appeal, the state housing appeals boardshall determine whether: (i) in the case of the denial of an application, thedecision of the local review board was consistent with an approved affordablehousing 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 anapproval of an application with conditions and requirements imposed, whetherthose conditions and requirements make the construction or operation of thehousing infeasible and whether those conditions and requirements are consistentwith an approved affordable housing plan, or if the town does not have anapproved affordable housing plan, are consistent with local needs.
(c) In making a determination, the standards for reviewingthe appeal include, but are not limited to:
(1) The consistency of the decision to deny or condition thepermit with the approved affordable housing plan and/or approved comprehensiveplan;
(2) The extent to which the community meets or plans to meethousing needs, as defined in an affordable housing plan, including, but notlimited to, the ten percent (10%) goal for existing low and moderate incomehousing units as a proportion of year-round housing;
(3) The consideration of the health and safety of existingresidents;
(4) The consideration of environmental protection; and
(5) The extent to which the community applies local zoningordinances and review procedures evenly on subsidized and unsubsidized housingapplications alike.
(d) If the appeals board finds, in the case of a denial, thatthe decision of the local review board was not consistent with an approvedaffordable housing plan, or if the town does not have an approved affordablehousing plan, was not reasonable and consistent with local needs, it shallvacate the decision and issue a decision and order approving the application,denying the application, or approving with various conditions consistent withlocal needs. If the appeals board finds, in the case of an approval withconditions and requirements imposed, that the decision of the local reviewboard makes the building or operation of the housing infeasible, and/or theconditions and requirements are not consistent with an approved affordablehousing 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 proposalno longer infeasible and/or consistent, and approving the application;provided, that the appeals board shall not issue any decision and order thatwould permit the building or operation of the housing in accordance withstandards less safe than the applicable building and site plan requirements ofthe federal Department of Housing and Urban Development or the Rhode Islandhousing and mortgage finance corporation, whichever agency is financiallyassisting the housing. Decisions or conditions and requirements imposed by alocal review board that are consistent with approved affordable housing plansand/or with local needs shall not be vacated, modified, or removed by theappeals board notwithstanding that the decision or conditions and requirementshave the effect of denying or making the applicant's proposal infeasible.
(e) The appeals board or the applicant has the power toenforce the orders of the appeals board by an action brought in the superiorcourt. The local review board shall carry out the decision and order of theappeals 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 bethe action of the local review board, unless the applicant consents to adifferent decision or order by the local review board. The decision and orderof the appeals board is binding on the city or town, which shall immediatelyissue any and all necessary permits and approvals to allow the construction andoperation 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 ofFebruary 13, 2004, that were affected by the moratorium established by §45-53-4(b).
(i) The determination of substantial completeness shall bebased on whether there was on or before February 13, 2004, substantialcompleteness of substantially all of the following:
(A) A written request to the zoning board of review to submita single application to build or rehabilitate low or moderate income housing inlieu of separate applications to the application local boards;
(B) A written list of variances, special use permits andwaivers requested to local requirements and regulations, including local codes,ordinances, by-laws or regulations, including any requested waivers from theland development or subdivisions regulations, and a proposed timetable forcompletion of the project;
(C) Evidence of site control;
(D) Evidence of eligibility for a state or federal governmentsubsidy, including a letter from the funding agency indicating the applicantand the project;
(E) Site development plans showing the locations and outlinesof proposed buildings; the proposed location, general dimensions and materialsfor street, drives, parking areas, walks and paved areas; proposed landscapingimprovements and open areas within the site; and the proposed location andtypes of sewage, drainage and water facilities;
(F) A report on existing site conditions and a summary ofconditions in the surrounding areas, showing the location and nature ofexisting buildings, existing street elevations, traffic patterns and characterof open areas, including wetlands and flood plains, in the neighborhood;
(G) A tabulation of proposed buildings by type, size (numberof bedrooms, floor area) and ground coverage and a summary showing thepercentage of the tract to be occupied by buildings, by parking and other pavedvehicular areas and by open spaces;
(H) A master plan, if the development proposal is for a majoror minor land development plan or a major or minor subdivision;
(I) a sample land lease or deed restrictions withaffordability liens that will restrict use as low and moderate income housingunits for a period of not less than thirty (30) years; and
(J) The list of all persons entitled to notice in accordancewith § 45-24-53.
(ii) Notwithstanding the provisions of paragraph (i) of thissubdivision, if the zoning board of review determined the application to besubstantially complete and/or acted in manner demonstrating that it consideredthe application substantially complete for the purposes of reviewing theapplication, the state housing appeals board shall consider the applicationsubstantially complete.
(2) Remand for hearing in accordance with the provisions of§ 45-53-4 applications which are determined to be substantially complete,which hearings may be conducted (or resume) under the provisions in effect onFebruary 13, 2004, unless the applicant and the board shall mutually agree thatthe 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 notlater than January 31, 2005, on applications in the order in which they werereceived by the town, unless a different commencement date is mutually agreedto by the applicant and the local board hearing the applications; the localreview board shall not be obligated to hear, and may deny, any applicationaffected by the moratorium unless it was determined to be substantiallycomplete in accordance with the provisions of subdivision (1) of thissubsection, and the local review board may require such additional submissionsas may be specified by the town or necessary for the review of the application.
(3) Hear and decide appeals, other than those covered bysubdivision (1) of this subsection, for which it took jurisdiction on or beforeMay 1, 2004.
(4) Continue to hear and decide appeals filed by nonprofitorganizations.
(5) Conduct such other business as may be reasonable andappropriate in order to facilitate an orderly transfer of activities to thestate housing appeals board as it shall be constituted after January 1, 2005.