Charlestown City Zoning Code
ARTICLE V
Procedure for Low or Moderate Income Housing Application
§ 218-27 Authority to Act on Applications for Low or Moderate Income Housing.
In accordance with Title 45, Chapter 53 of the Rhode Island General Laws, the R.I. Low and Moderate Income Housing Act, as amended (the "Act"), the Charlestown Code of Ordinances, and the Charlestown Zoning Ordinance, the Planning Commission is designated as the local review board and shall have the authority to act on applications qualifying under and through the Act as low or moderate income housing. The local review board shall have the authority of any town official, zoning board of review, planning commission, board of appeal or zoning enforcement officer, local conservation commission, historic district commission, or other municipal board having supervision of the construction of buildings or the power of enforcing land use regulations, such as subdivision, or zoning laws in regard to their review and action concerning qualified applications under the Act. All definitions, terms, and provisions contained in the Act are incorporated into these regulations by reference. The regulations contained herein are intended to be complementary and to be used in unison with the Act by and through the provisions set forth herein.
§ 218-28 Review Procedures, Criteria for Approval, Duration of Approval.
A.
Any applicant proposing to build low- or moderate-income housing may submit to the Planning Commission a single application for a comprehensive permit to build that housing in lieu of separate applications to the applicable local boards. This procedure is only available for proposals in which at least twenty-five percent (25%) of the housing is low- or moderate-income housing.
B.
Municipal government subsidies, including adjustments and zoning incentives, are to be made available to applications under this article to offset the differential costs of the low- or moderate-incoming housing units in a development under this article. At a minimum, the following zoning incentives shall be allowed for projects submitted under this article:
(1)
Density bonus. The Town shall provide an applicant with more dwelling units than allowed by right under its zoning ordinance in the form of a density bonus to allow an increase in the allowed dwelling units per acre (DU/A), as well as other incentives and municipal government subsidies as defined in § 45-53-3. Furthermore, the Town shall provide, at a minimum, the following density bonuses for projects submitted under this article, provided that the total land utilized in the density calculation shall exclude wetlands; wetland buffers; area devoted to infrastructure necessary for development; and easements or rights of way of record:
(a)
For properties connected to public sewer and water, or eligible to be connected to public sewer and water based on written confirmation from each respective service provider, the density bonus for a project that provides at least twenty-five percent (25%) low- and moderate-income housing shall be at least five (5) units per acre;
(b)
For properties connected to public sewer and water, or eligible to be connected to public sewer and water based on written confirmation from each respective service provider, the density bonus for a project that provides at least fifty percent (50%) low- and moderate-income housing shall be at least nine (9) units per acre;
(c)
For properties connected to public sewer and water, or eligible to be connected to public sewer and water based on written confirmation from each respective service provider, the density bonus for a project that provides one hundred percent (100%) low- and moderate-income housing shall be at least twelve (12) units per acre;
(d)
For properties not connected to either public water or sewer or both, but which provide competent evidence as to the availability of water to service the development and/or a permit for on-site wastewater treatment facilities to service the dwelling units from the applicable state agency, the density bonus for a project that provides at least twenty-five percent (25%) low- and moderate-income housing shall be at least three (3) units per acre;
(e)
For properties not connected to either public water or sewer or both, but which provide competent evidence as to the availability of water to service the development and/or a permit for on-site wastewater treatment facilities to service the dwelling units from the applicable state agency, the density bonus for a project that provides at least fifty percent (50%) low- and moderate-income housing shall be at least five (5) units per acre;
(f)
For properties not connected to either public water or sewer or both, but which provide competent evidence as to the availability of water to service the development and/or a permit for on-site wastewater treatment facilities to service the dwelling units from the applicable state agency, the density bonus for a project that provides one hundred percent (100%) low- and moderate-income housing shall be at least eight (8) units per acre;
(2)
Parking. The Town shall not require more than one off-street parking space per dwelling unit for units up to and including two (2) bedrooms in applications submitted under this article;
(3)
Bedrooms. The Town shall not limit the number of bedrooms for applications submitted under this article to anything less than three (3) bedrooms per dwelling unit for single-family dwelling units;
(4)
Floor area. The Town shall not utilize floor area requirements to limit any application, except as provided by § 45-24.3-11.
C.
The Town shall not restrict comprehensive permit applications and permits by any locally adopted ordinance or policy that places a limit or moratorium on the development of residential units.
D.
The application and review process for a comprehensive permit shall be as follows:
(1)
Pre-application conference. The Planning Commission may require an applicant proposing a project under this article to complete, or the applicant proposing a project under this article may request a pre-application conference with the Planning Commission, the technical review committee established pursuant to § 45-23-56, or with the administrative officer for the Planning Commission as appropriate. In advance of a pre-application conference, the applicant shall be required to submit only a short description of the project in writing including the number of units, type of housing, density analysis, preliminary list of adjustments needed, as well as a location map, and conceptual site plan. The purpose of the pre-application conference shall be to review a concept plan of the proposed development and to elicit feedback from the reviewing person or board. Upon receipt of a request by an applicant for a pre-application conference, the Town shall have thirty (30) days to schedule and hold the pre-application conference, unless a different timeframe is agreed to by the applicant in writing. If thirty (30) days has elapsed from the filing of the pre-application submission and no pre-application conference has taken place, nothing shall be deemed to preclude an applicant from thereafter filing and proceeding with an application for preliminary plan review for a comprehensive permit.
(2)
Preliminary plan review.
(a)
Submission requirements. Applications for preliminary plan review under this article shall include:
[1]
A letter of eligibility issued by the Rhode Island housing and mortgage finance corporation, or in the case of projects primarily funded by the U.S. Department of Housing and Urban Development or other state or federal agencies, an award letter indicating the subsidy, or application in such form as may be prescribed for a municipal government subsidy; and
[2]
A letter signed by the authorized representative of the applicant, setting forth the specific sections and provisions of applicable local ordinances and regulations from which the applicant is seeking adjustments; and
[3]
A proposed timetable for the commencement of construction and completion of the project; and
[4]
Those items required for the submission checklist of a preliminary plan as contained in the Charlestown Subdivision and Land Development Regulations, with the exception of evidence of state or federal permits; and
[5]
Notwithstanding the submission requirements set forth above, the Planning Commission may request additional, reasonable documentation throughout the public hearing, including, but not limited to, opinions of experts, credible evidence of application for necessary federal and/or state permits, statements and advice from other local boards and officials.
(b)
Certification of completeness. The preliminary plan application must be certified complete or incomplete by the administrative officer according to the provisions of § 45-23-36; provided, however, that the certificate shall be granted within twenty-five (25) days of submission of the application. The running of the time period set forth herein will be deemed stopped upon the issuance of a written certificate of incompleteness of the application by the administrative officer and will recommence upon the resubmission of a corrected application by the applicant. However, in no event will the administrative officer be required to certify a corrected submission as complete or incomplete less than ten (10) days after its resubmission. If the administrative officer certifies the application as incomplete, the officer shall set forth in writing with specificity the missing or incomplete items.
(c)
Review of applications. An application filed in accordance with this section shall be reviewed in accordance with the following provisions:
[1]
Public hearing. A public hearing shall be noticed and held as soon as practicable after the issuance of a certificate of completeness.
[2]
Notice. Public notice for the public hearing will be the same notice required under local regulations for a public hearing for a preliminary plan promulgated in accordance with § 45-23-42. The cost of notice shall be paid by the applicant.
[3]
Timeframe for review. The Planning Commission shall render a decision on the preliminary plan application within ninety (90) days of the date the application is certified complete, or within a further amount of time that may be consented to by the applicant through the submission of a written consent.
[4]
Failure to act. Failure of the Planning Commission to act within the prescribed period constitutes approval of the preliminary plan, and a certificate of the administrative officer as to the failure of the Planning Commission to act within the required time and the resulting approval shall be issued on request of the applicant. Further, if the public hearing is not convened or a decision is not rendered within the time allowed in subsections D(2)(c)[1] and D(2)(c)[3] of this section, the application is deemed to have been allowed and the preliminary plan approval shall be issued immediately.
[5]
Required findings for approval. In approving an application, the Planning Commission shall make positive findings, supported by legally competent evidence on the record that discloses the nature and character of the observations upon which the fact finders acted, on each of the following standard provisions, where applicable:
[a]
The proposed development is consistent with local needs as identified in the comprehensive community plan with particular emphasis on the affordable housing plan and/or has satisfactorily addressed the issues where there may be inconsistencies.
[b]
The proposed development is in compliance with the standards and provisions of the Town's zoning ordinance and subdivision regulations, and/or where adjustments are requested by the applicant, that 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 compatible in scale and architectural style to, the market rate units within the project; and will be built and occupied prior to, or simultaneous with the construction and occupancy of any market rate units.
[d]
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, sewerage 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.
[e]
All proposed land developments and all subdivision lots will have adequate and permanent physical access to a public street in accordance with the requirements of § 45-23-60(a)(5).
[f]
The proposed development will not result in the creation of individual lots with any physical constraints to development that building on those lots according to pertinent regulations and building standards would be impracticable, unless created only as permanent open space or permanently reserved for a public purpose on the approved, recorded plans.
[6]
Required findings for denial. In reviewing the comprehensive permit request, the Planning Commission may deny the request for any of the following reasons:
[a]
If the Town has an approved affordable housing plan and is meeting housing needs, and the proposal is inconsistent with the affordable housing plan; provided that, the Planning Commission also finds that the Town has made significant progress in implementing that housing plan;
[b]
The proposal is not consistent with local needs, including, but not limited to, the needs identified in the Charlestown approved comprehensive plan, and/or local zoning ordinances and procedures promulgated in conformance with the comprehensive plan;
[c]
The proposal is not in conformance with the Charlestown comprehensive plan;
[d]
The Town has met or has plans to meet the goal of ten percent (10%) of the year-round units as defined in § 45-53-3(5)(i) being low- and moderate-income housing; provided that, the Planning Commission also finds that the Town has achieved or has made significant progress towards meeting the goals required by this section; or
[e]
Concerns for the environment and the health and safety of current residents have not been adequately addressed.
(d)
Vesting. The approved preliminary plan is vested for a period of two (2) years with the right to extend for two (2), one-year extensions upon written request by the applicant, who must appear before the Planning Commission for each annual review and provide proof of valid state or federal permits as applicable. Thereafter, vesting may be extended for a longer period, for good cause shown, if requested, in writing by the applicant, and approved by the Planning Commission. The vesting for the preliminary plan approval includes all ordinance provisions and regulations at the time of the approval, general and specific conditions shown on the approved preliminary plan drawings and supporting material.
(3)
Final plan review. The second and final stage of review for the comprehensive permit project shall be done administratively, unless an applicant has requested and been granted any waivers from the submission of checklist items for preliminary plan review, and then, at the Planning Commission's discretion, it may vote to require the applicant to return for final plan review and approval.
(a)
Submission requirements. Applications for final plan review under this section shall include:
[1]
All required state and federal permits must be obtained prior to the final plan approval or the issuance of a building permit; and
[2]
A draft monitoring agreement which identifies an approved entity that will monitor the long-term affordability of the low- and moderate-income units pursuant to § 45-53-3.2; and
[3]
A sample land lease or deed restriction with affordability liens that will restrict use as low- and moderate-income housing in conformance with the guidelines of the agency providing the subsidy for the low- and moderate-income housing, but for a period of not less than thirty (30) years; and
[4]
Those items required for the submission checklist of a final plan as contained in the Charlestown Subdivision and Land Development Regulations, including, but not limited to:
[a]
Arrangements for completion of the required public improvements, including construction schedule and/or financial guarantees; and
[b]
Certification by the tax collector that all property taxes are current; and
[c]
For phased projects, the final plan for phases following the first phase, shall be accompanied by copies of as-built drawings not previously submitted of all existing public improvements for prior phases.
(b)
Certification of completeness. The final plan application must be certified complete or incomplete by the administrative officer according to the provisions of § 45-23-36; provided however, that the certificate shall be granted within twenty-five (25) days of submission of the application. The running of the time period set forth herein will be deemed stopped upon the issuance of a written certificate of incompleteness of the application by the administrative officer and will recommence upon the resubmission of a corrected application by the applicant. However, in no event will the administrative officer be required to certify a corrected submission as complete or incomplete less than ten (10) days after its resubmission. If the administrative officer certifies the application as incomplete, the officer shall set forth in writing with specificity the missing or incomplete items.
(c)
Review of applications.
[1]
Timeframe for review. The reviewing authority shall render a decision on the final plan application within forty-five (45) days of the date the application is certified complete.
[2]
Modifications and changes to plans:
[a]
Minor changes, as defined in the local regulations, to the plans approved at preliminary plan may be approved administratively, by the administrative officer, whereupon final plan approval may be issued. The changes may be authorized without additional public hearings, at the discretion of the administrative officer, All changes shall be made part of the permanent record of the project application. This provision does not prohibit the administrative officer from requesting a recommendation from either the technical review committee or the Planning Commission. Denial of the proposed change(s) shall be referred to the Planning Commission for review as a major change.
[b]
Major changes, as defined in the local regulations, to the plans approved at preliminary plan may be approved only by the Planning Commission and must follow the same review and public hearing process required for approval of preliminary plans as described in subsection D(2)(c) of this section.
[c]
The administrative officer shall notify the applicant in writing within fourteen (14) days of submission of the final plan application if the administrative officer is referring the application to the Planning Commission under this subsection.
[3]
Decision on final plan. An application filed in accordance with this section shall be approved by the administrative officer unless such application does not satisfy conditions set forth in the preliminary plan approval decision or such application does not have the requisite state and/or federal approvals or other required submissions, does not post the required improvement bonds, or such application is a major modification of the plans approved at preliminary plan.
[4]
Failure to act. Failure of the reviewing authority to act within the prescribed period constitutes approval of the final plan, and a certificate of the administrative officer as to the failure to act within the required time and the resulting approval shall be issued on request of the applicant.
(d)
Vesting. The approved final plan is vested for a period of two (2) years with the right to extend for one one-year extension upon written request by the applicant, who must appear before the Planning Commission for the extension request. Thereafter, vesting may be extended for a longer period, for good cause shown, if requested, in writing by the applicant, and approved by the Planning Commission.
(4)
Infeasibility of conditions of approval. The burden is on the applicant to show, by competent evidence before the Planning Commission, that proposed conditions of approval are infeasible, as defined in § 45-53-3. Upon request, the applicant shall be provided a reasonable opportunity to respond to such proposed conditions prior to a final vote on the application.
(5)
Fees. The Town may impose fees on comprehensive permit applications that are consistent with but do not exceed fees that would otherwise be assessed for a project of the same scope and type, but not proceeding under this article; provided, however, the imposition of such fees shall not preclude a showing by an applicant that the fees make the project financially infeasible.
(6)
Recording of written decisions. All written decisions on applications under this section shall be recorded in the land evidence records within twenty (20) days after the Planning Commission's vote or the administrative officer's decision, as applicable. A copy of the recorded decision shall be mailed within one business day of recording, by any method that provides confirmation of receipt, to the applicant and to any objector who has filed a written request for notice with the administrative officer.
(7)
Local review board powers. The Planning Commission has the same power to issue permits or approvals that any local board or official who would otherwise act with respect to the application, including, but not limited to, the power to attach to the permit or approval, conditions, and requirements with respect to height, site plan, size or shape, or building materials, as are consistent with the terms of this section.
(8)
Majority vote required. All Planning Commission decisions on comprehensive permits shall be by majority vote of the members present at the proceeding.
(9)
Construction timetable. A comprehensive permit shall expire unless construction is started within twelve (12) months and completed within sixty (60) months of the recording of the final plan unless a longer and/or phased period for development is agreed to by the Planning Commission and the applicant. Low- and moderate-income housing units shall be built and occupied prior to, or simultaneous with the construction and occupancy of market rate units.
(10)
For-profit developers — Limits. If the Town enacts an approved affordable housing plan and is meeting local housing needs, as defined in this section, the Town may by council action limit the annual total number of dwelling units in comprehensive permit applications from for-profit developers to an aggregate of one percent (1%) of the total number of year-round housing units in the town, as recognized in the affordable housing plan and notwithstanding the timetables set forth elsewhere in this section, the Planning Commission shall have the authority to consider comprehensive permit applications from for-profit developers, which are made pursuant to this paragraph, sequentially in the order in which they are submitted.
§ 218-29 Appeals.
A decision of a local review board may be appealed by the applicant or an aggrieved party, as defined by § 45-24-31, to the superior court for Washington County. The appeal shall be taken within twenty (20) days after the date of the recording and posting of the decision by the local review board, by filing with the superior court a complaint that contains a statement of the prior proceedings and the reasons upon which the appeal is based. The complaint shall name the local review board as the appellee and serve the local review board with the appeal within twenty (20) days of filing of the appeal. If an aggrieved party who or that is not the applicant files an appeal, the original applicant shall be named as a party and served in the same manner as the local review board.