§ 712. Comprehensive Permits for Low and Moderate Income Housing

A. Authority. Pursuant to G.L. 1956, title 45, ch. 53, as amended, the Low and Moderate Income Housing Act, the Zoning Board of Review shall have the authority to issue a comprehensive permit for low and moderate income housing.

B. Definitions. The following words or phrases shall have the following meaning when used in this Section:

1. Affordable housing means residential housing meeting the definition contained G.L. 1956, § 42-128-8.1(d)(1), the Comprehensive Housing Production and Rehabilitation Act of 2004.

2. Approved affordable housing plan means an affordable housing plan that the director of administration has approved as meeting the guidelines for a comprehensive plan as promulgated by the state planning council.

3. Consistent with local needs. Local zoning and land use ordinances and regulations are consistent with local needs if they are:

a. Reasonable in light of the State's need for low and moderate income housing and the number of low income persons in New Shoreham, considered with:

(1) The need to protect the health and safety of the community, or

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

(3) The need to preserve open spaces.

b. Not designed or intended to exclude low and moderate income residents from the community or to discourage or frustrate the likelihood of success of a project.

c. Applied as equally as possible to both subsidized and unsubsidized housing.

4. Letter of eligibility means a letter issued by the Rhode Island Housing and Mortgage Finance Corporation pursuant to G.L. 1956, § 42-55-5.3(a).

5. 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 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 agreed to by the applicant and the town, or prescribed by the federal, state, or municipal government subsidy program, but in no case fewer than thirty (30) years from initial occupancy.

6. Municipal government subsidy is assistance that is made available through a town program sufficient to provide affordable housing. Such assistance may include, but is not limited to, direct financial support, abatement of taxes, waiver of fees and charges, and approval of density bonuses and/or internal subsidies, or any combination of forms of assistance.

C. Eligible proposals.

1. An applicant proposing to build low or moderate income housing may submit to the Zoning Board of Review an application for a Comprehensive Permit to build that housing, instead of separate applications to the local boards and officials who would otherwise have the authority to approve the application. This procedure is available only for proposals in which at least twenty-five percent (25%) of the housing will be low or moderate income housing.

2. Notwithstanding the timetables elsewhere in this ordinance, the Zoning Board of Review shall have the authority to consider Comprehensive Permit applications from for-profit developers sequentially in the order in which they are submitted.

D. Application procedure.

1. Pre-application conference.

a. Any applicant for a Comprehensive Permit shall request a pre-application conference with the Administrative Officer, who may include in the conference any other person deemed appropriate by the Officer. The purpose of the conference is to review a concept plan of the proposed development.

b. To request a pre-application conference, the applicant shall submit a short written description of the project, including the number of units, type of housing, and a location map.

c. The Administrative Officer shall have thirty (30) days from receipt of a request for a pre-application conference to conduct the conference. If the pre-application conference has not taken place within thirty days, the applicant has the right to file the Comprehensive Permit application.

2. Submission requirements. Applications for a Comprehensive Permit shall include:

a. A written application for a Comprehensive Permit on a form provided by the Town for that purpose. The application shall identify the specific ordinances and regulations from which the applicant is seeking relief, together with a description of what relief is needed, including the permitted and the proposed housing density.

b. A letter of eligibility, documentation of eligibility for a state or federal subsidy, or documentation of eligibility for a municipal government subsidy.

c. A proposed timetable for the commencement of construction and completion of the project, including a timetable for construction phasing that includes the percentage of low and moderate income housing that will be constructed during each phase.

d. A sample land lease or deed restriction with affordability liens, in conformance with guidelines of the agency providing the subsidy, that will restrict use of the low and moderate income units to low and moderate income housing for not less than thirty (30) years.

e. Identification of an approved entity that will monitor the long-term affordability of the low and moderate income units.

f. A financial pro-forma for the proposed development, including but not limited to evidence of the acquisition price, expenses, and other economic factors that comprise the total cost for the construction and administration of the facility and the resulting rental rates or sale prices to be charged for all units constructed;

g. The required application fee.

h. Supporting documentation.

(1) For Comprehensive Permit applications that do not propose a major land development or a major subdivision, the applicant shall submit all of the material required by the applicable provision of the zoning ordinance or the land development and subdivision regulations.

(2) For Comprehensive Permit applications that propose a major land development or a major subdivision, the applicant shall submit all items on the Master Plan Checklist for Major Land Developments and Major Subdivisions in the land development and subdivision regulations, as amended.

3. Certification of completeness.

a. The Administrative Officer shall certify a new application as complete or incomplete, according to the provisions of the land development and subdivision regulations, as amended, within thirty (30) days of the day it is received. If the application is determined to be incomplete, the Administrative Officer shall specify in writing the missing or incomplete items. When the application is re-submitted, the Administrative Officer shall certify it as complete or incomplete with fourteen (14) days of the date of re-submission.

b. When an application is certified as complete, the Administrative Officer shall transmit a complete copy of the application to each local board or official who would otherwise have the authority to approve the application.

c. The Administrative Officer shall ask the Conservation Commission for an advisory opinion to the Zoning Board of Review concerning the conservation issues raised by the application.

4. Additional documentation. Notwithstanding the submission requirements set forth in this section, the Zoning Board of Review may request additional reasonable documentation during the public hearing, including to opinions of experts, credible evidence of application for necessary federal or state permits, and opinions or recommendations from other town boards, commissions, or officials.

E. Public hearing.

1. A Comprehensive Permit application proposing a major land development or major subdivision shall be scheduled for a public hearing as soon as practical. The Zoning Board of Review shall render a decision on the Master Plan application no more than 120 days after the date on which the application was certified as complete, unless the applicant and the Zoning Board of Review agree to a longer period of time. Preliminary plan review and approval, and final plan review and approval, shall take place pursuant to the provisions of the Land Development and Subdivision regulations.

2. A Comprehensive Permit application proposing any type of development other than a major land development or major subdivision, including but not limited to a minor land development, minor subdivision, zoning ordinance relief, or relief from any other local ordinance or regulation, shall be reviewed according to the procedures specified in the Zoning Ordinance or in the Land Development and Subdivision Regulations for that type of relief, provided, however, that a public hearing shall be conducted on each such application. The Zoning Board of Review shall schedule a public hearing on the application as soon as practical after the application is certified as complete, and shall render a decision no more than ninety-five (95) days after the date on which the application was certified as complete, unless the applicant and the Zoning Board of Review agree to a longer period of time.

3. If a decision is not rendered within the time periods in this section, the application shall be considered approved, and local officials shall immediately issue the necessary permits.

F. Notice of public hearing.

1. The public hearing on the application shall be advertised in a newspaper in general circulation in New Shoreham least fourteen (14) days before the date of the public hearing. The advertisement shall appear in the classified section and shall be printed in type at least as large as that used for news stories.

2. Notice of the hearing shall be sent by certified mail, return receipt requested, to all owners of property within five hundred (500) feet of the property proposed for development or rehabilitation, at least ten (10) days before the date of the public hearing.

3. The advertisement and the notice shall state the date, time, and location of the public hearing, the location of the property by assessor's plat and lot number, and by street address, and the days, hours and location at which the complete application may be examined.

4. The applicant shall pay for the newspaper advertisement and the certified mail notice.

G. Decision.

1. In a decision approving an application for a Comprehensive Permit, the Zoning Board of Review shall make positive findings on each of the following applicable criteria. The findings shall be supported by legally competent evidence on the record, and the decision shall disclose the nature and character of the observations on which the Zoning Board of Review members acted.

a. The proposed development is consistent with local needs as identified in the Comprehensive Plan, with particular emphasis on the community's affordable housing plan, or the proposed development has satisfactorily addressed the issues where there may be inconsistencies.

b. The proposed development is in compliance with the standards and provisions of the zoning ordinance and the land development and subdivision regulations, or where those standards and provisions have been waived or varied, 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 similar in scale and architectural style to the market rate units in the development, and will be built and occupied prior to, or simultaneously with, the construction and occupancy of the 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, sewage 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.

f. All of the proposed land development, or all lots in a subdivision, will have adequate and permanent access to a public street in accordance with the requirements of G.L. 1956, § 45-23-60(5).

g. The proposed development will not result in the creation of individual lots with such physical constraints to development that building on those lots according to the applicable regulations and building standards would be impracticable, unless the lots are created solely as permanent open space or are permanently reserved for a public purpose on the approved and recorded plat.

2. The Zoning Board of Review may deny the application for any of the following reasons:

a. The town has an affordable housing plan that has been approved by the director of administration as meeting the guidelines for a local comprehensive plan as promulgated by the state planning council, the town has adopted the implementation plan contained in the approved affordable housing plan, the town has not unreasonably denied applications made pursuant to the approved affordable housing plan, and the application is inconsistent with the approved affordable 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 the zoning ordinance and procedures promulgated in conformance with the comprehensive plan.

c. The proposal is not in conformity with the Comprehensive Plan.

d. The town has met, or has plans to meet, the goal of having ten percent (10%) of its year-round housing units as low or moderate income housing.

e. The application does not adequately address concerns for the environment and for the health and safety of current town residents.

3. When making its decision, the Zoning Board of Review shall have the same powers as to the local boards and officials who would otherwise have the authority to approve the application.

4. The Zoning Board of Review shall have the authority to impose conditions and requirements on the decision with respect to height, site plan, size or shape, or building materials, provided that the conditions and requirements are consistent with the approved affordable housing plan. No condition or requirement shall be imposed on the approval that would make construction or operation of the housing infeasible. A condition or requirement or combination of conditions or requirements would make construction or operation of the housing infeasible, within the limits set by the subsidizing agency on the size or character of the development, on the amount or nature of the subsidy, or on the tenants, rentals, and income permissible, if the housing could not be constructed or operated without financial loss and without substantially changing the rent levels and unit sizes that were proposed.

5. The decision of the Zoning Board of Review shall be by a majority vote of the membership of the Board.

H. Duration of approval. A Comprehensive Permit shall expire unless construction commences within twelve (12) months of its issuance and is completed within sixty (60) months of its issuance, unless the applicant and the Zoning Board of Review agree on a longer period, or to a period of phased development. Low and moderate income units shall be built and occupied prior to, or simultaneously with, the construction and occupancy of market rate units.

I. Appeal.

1. Any person aggrieved by the issuance of an approval may appeal to the Rhode Island Supreme Court.

2. When an application is denied, or when an application is granted with conditions and requirements that make the construction or operation of the housing infeasible, the applicant may appeal the decision to the State Housing Appeals Board. The appeal shall be taken within twenty (20) days after the date of the notice of the decision by the Zoning Board of Review.

(Subsection 712 added March 5, 2007)