52 RI Bar J., No. 4, Pg. 7 (January, 2004). Instructions For Review Of "Comprehensive Permits" Under The Rhode Island Low and Moderate Income Housing Act.

• Author: NANCY E. GIORGI, ESQ.

Rhode Island Bar Journal

Volume 52.

52 RI Bar J., No. 4, Pg. 7 (January, 2004).

Instructions For Review Of "Comprehensive Permits" Under The Rhode Island Low and Moderate Income Housing Act

Instructions For Review Of "Comprehensive Permits" Under The Rhode Island Low and Moderate Income Housing ActNANCY E. GIORGI, ESQ.Nancy E. Giorgi, is an associate Ursillo, Teitz & Ritch, Ltd., Providence, Assistant Town Solicitor for the Town of Bristol, and Special Legal Counsel for Planning and Zoning for the Town of South Kingstown.The Rhode Island Low and Moderate Income Housing Act (the Act), R.I. Gen. Laws § 45-53-1 et seq., is land-use regulation in rapid fluctuation at a time when the resources of many of the thirty-nine Rhode Island municipalities are being challenged to provide affordable housing. The expedited review and approval process, its rudiments codified in the Act, raises questions and creates controversy despite elaboration found in the regulations adopted by the State Housing Appeals Board (SHAB). The new 'comprehensive permit' process is difficult to navigate because of a lack of clarity and guidance. This is particularly evident when compared to the specific procedures established for conventional land-use decision making through the Zoning Enabling Act of 1991 and the Land Development and Subdivision Review Act of 1992. Without proper direction and sufficient comprehension of the process, it is impossible to guarantee efficient development review, development plans that respond to local needs, or legally defensible land-use decisions. Fortunately, in Town of Coventry Zoning Board vs. Omni Development Corporation, at 814 A.2d 889 (R.I. 2003) the Rhode Island Supreme Court has given some important instructions to the land use practitioner.

There is little legal history under the Rhode Island Low and Moderate Income Housing Act. Codified as P.L. 1991, Chapter 154 in the regulatory age prior to the enactment of the Zoning Enabling Act of 1991 (fn1) and the Land Development and Subdivision Review Act of 1992, (fn2) the Act has been touted as a copy of its Massachusetts precursor Mass. Gen. Laws ch. 40B. Although the Act has been amended (fn3) there is no history of legislative intent and little guidance to aide in judicial interpretation beyond the provisions of the statute itself. Although the SHAB has published several decisions covering various issues on appeals from Zoning Boards, very little case law exists. (fn4)

Many unresolved issues continue to surround a Town's review of and decision on a comprehensive permit application. (fn5) However, the Rhode Island Supreme Court's decision in Town of Coventry Zoning Board vs. Omni Development Corporation, 814 A.2d 889 (R.I. 2003) (hereinafter referred to as "Omni") has been instructional in two very important ways.

First, the Supreme Court demonstrated the State Housing Appeals Board's (SHAB) application of the test "consistent with local needs" to local ordinances and land use regulations and told SHAB how to review conditions and requirements of approval imposed by a Zoning Board. The Supreme Court's opinion clarifies the standard of review applied by SHAB and the appellant's burden on appeal to the SHAB and, since the review before the SHAB is ostensibly 'on the record,' the Court's discussion also provides municipal Boards with needed direction on the legal considerations which should be part of their review.

Second, the Supreme Court makes it clear that SHAB may not exceed its statutory authority and that its own decisions may not be arbitrary and unsupported by the record. The Court's discussion on these issues underscores the significance of creating a complete record at the Zoning Board level and the importance of achieving a decision that addresses each and every aspect of an application with deliberation and accuracy. This achieves the balancing of the rights of an applicant with those of the public required in the land-use review and decision making process in every case including under the procedures intended in the Rhode Island Low and Moderate Income Housing Act.

A Review of the Rhode Island Supreme Court decision in Town of Coventry Zoning Board vs. Omni Development Corporation. 814 A.2d 889 (R.I. 2003).There are two varieties of the 'consistent with local needs' standard of review identified by the Rhode Island Supreme Court in Omni. In the opinion authored by Justice Goldberg, the Court interprets R.I. Gen. Laws § 45-53-3.

1. For municipalities who have met or exceed the statutory goal for low and moderate income housing, a local land use regulation is "consistent with local needs" when:(1) it is imposed by a city or town council after a "comprehensive hearing"; and,(2) "the municipality has adopted a comprehensive plan that includes a housing element that addresses the need for low and moderate...