Rhode Island’s New ‘Housing Legislation’ Does Not Just Benefit Housing Efforts

In an effort to “fundamentally change [the State’s] approach to housing development, particularly for the moderate and affordable development we need most,” the Rhode Island General Assembly recently passed a slew of legislation intended to “cut through the frustrating red tape that is standing in the way of the development of new housing, moving housing forward for Rhode Islanders in all communities who need and deserve safe and affordable homes.”[1] These changes generally take effect on January 1, 2024.

Importantly though, the legislation passed benefits to all property owners whether developing for residential or commercial use. For example, the legislation mandates more efficient administrative review for relatively minor matters, rather than giving municipalities the discretion to require sometimes lengthy planning board review. Additionally, when relief from the zoning ordinance is required in connection with a development project, including variances and special use permits, the review will be combined and heard by the planning board, instead of bouncing back between zoning and planning boards. Appeals of planning board decisions will now go directly to the Superior Court, rather than having the often-futile step requiring zoning board review.

Summary of the Legislation:

• Amends standards for granting dimensional variances, eliminating requirement that hardship may not result primarily from desire to realize greater financial gain and that the relief sought is the least relief necessary.
• Requires that municipalities must consider a variance for dimensional relief when a special use permit is also requested.
• Special use permits must provide for specific and objective criteria; otherwise, use is permitted by right. Uses not specifically listed may be presented to zoning authorities to determine if proposed use is similar to a listed use requiring a special use permit.
• Dimensional modifications are required to be reviewed and range from zoning official review to neighbor participation.
• Substandard lots of record require reduced dimensional requirements.
• Prohibits merger of certain lots when neighboring lots are of similar size.
• Allows municipalities to treat uses permitted by special use permit the same as non-conforming development.
• Requires adaptive reuse for conversion of commercial buildings to residential use when, among other requirements, 50% of the building will be residential; high-density use is permitted when at least 20% of the units are dedicated to low- and moderate-income housing.
• Eliminates the Zoning Board of Appeal for Planning Board decisions, where appeals go directly to Superior Court.
• Certain applications, including minor land development projects and subdivisions as defined in the statute, are reviewed and approved by the administrative officer.
• Development Plan Review is a review process that may be used by municipalities under specific and objective guidelines; municipalities may not impose both development plan review and land development review for the same project.
• Unified Development Review, where the Planning Board approves both the development application and any zoning relief associated therewith, is required.
• Public hearings for major land development projects are required at master plan stage.
• Deadlines to certify completeness of applications are reduced.
• Comprehensive Permit Application standards for approval are amended and relaxed; master plan stage is eliminated from the former 3 stage review process.
• A Land Use Court is established, which is dedicated to hearing all land use matters, including appeals from zoning boards, planning boards, and denials of comprehensive permit applications; the State Housing Appeals Board is eliminated.
• Notice requirements for certain applications are relaxed, i.e., first class mail rather than certified mail; standardizes notice for all applications.

Fifteen separate bills addressing sometimes overlapping concepts were drafted quickly in an effort to respond to the housing crisis we face in Rhode Island — and presumably all over the country. As such, there were unavoidable discrepancies in the complicated legislation that leaves property owners, municipal planners, solicitors, and development attorneys with significant questions as to procedural requirements in certain matters that must be navigated unless or until the legislation is reconsidered. For example, although the known intent was that development plan review be a discretionary review process and left up to the individual cities and towns, the legislation changed the requirement that municipalities “may” require to “shall” require, leaving those communities that would otherwise forgo the process in a predicament.

Many of the new requirements will supersede existing Zoning Ordinances if not addressed by a municipality, for example, the relaxed standards for dimensional variances. However, certain provisions, including the requirement to provide specific and objective criteria for special use permits, will leave municipalities open for potentially unwanted “by-right” development if ignored.

——————————————————————–

This DarrowEverett Insight should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This Insight is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this Insight, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

Unless expressly provided, this Insight does not constitute written tax advice as described in 31 C.F.R. §10, et seq. and is not intended or written by us to be used and/or relied on as written tax advice for any purpose including, without limitation, the marketing of any transaction addressed herein. Any U.S. federal tax advice rendered by DarrowEverett LLP shall be conspicuously labeled as such, shall include a discussion of all relevant facts and circumstances, as well as of any representations, statements, findings, or agreements (including projections, financial forecasts, or appraisals) upon which we rely, applicable to transactions discussed therein in compliance with 31 C.F.R. §10.37, shall relate the applicable law and authorities to the facts, and shall set forth any applicable limits on the use of such advice.

[1] Press Release, Assembly approves Speaker Shekarchi’s housing package, June 16, 2023, State of Rhode Island General Assembly, https://www.rilegislature.gov/pressrelease/_layouts/RIL.PressRelease.ListStructure/Forms/DisplayForm.aspx?List=c8baae31%2D3c10%2D431c%2D8dcd%2D9dbbe21ce3e9&ID=373777&Web=2bab1515%2D0dcc%2D4176%2Da2f8%2D8d4beebdf488#