§ 45-53-6. Power of state housing appeals board. (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.

(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, by-laws 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 paragraph (i) of this subdivision, if the zoning board of review determined the application to be substantially complete and/or acted in 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 which 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 subdivision (1) of this subsection, 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 subdivision (1) of this subsection, 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.)