Town of Burrillville v. Pascoag Apartment

• Decision Date: 03 July 2008
• Docket Number: No. 2005-35-M.P.,2005-35-M.P.
• Citation: 950 A.2d 435
• Parties: TOWN OF BURRILLVILLE et al. v. PASCOAG APARTMENT ASSOCIATES, LLC, et al.
• Court: Rhode Island Supreme Court

950 A.2d 435

TOWN OF BURRILLVILLE et al. v. PASCOAG APARTMENT ASSOCIATES, LLC, et al.

No. 2005-35-M.P.

Supreme Court of Rhode Island.

July 3, 2008.

Patrick Dougherty, for Plaintiff.

William Landry, for Defendant.

Present: WILLIAMS, C.J., GOLDBERG, FLAHERTY, SUTTELL, and ROBINSON, JJ.

OPINION

Justice SUTTELL, for the Court.

We issued a writ of certiorari to review the State Housing Appeals Board's (SHAB) decisions that three separate applications for comprehensive permits submitted by Pascoag Apartment Associates, LLC and Yorkshire Properties (Pascoag), Crystal Lake Builders, LLC (Crystal Lake), and East Avenue Development Realty, LLC (East Avenue) (collectively respondents), under the Low and Moderate Income Housing Act, G.L. 1956 chapter 53 of title 45, were, as of February 13, 2004, substantially complete under § 45-53-6(f)(1). The three applicants presented plans and documentation to the Town of Burrillville Zoning Board of Review in early 2004. While the applications were pending, the General Assembly imposed a moratorium on the use of comprehensive permit applications by private, for-profit developers such as the ones in this case. Only those applications that SHAB deemed to be substantially complete as of February 13, 2004, were allowed to proceed. SHAB made such a determination for all three of the projects under review. For the reasons set forth in this opinion, we reverse the decisions of SHAB.

I Statutory Background

In 1991, the General Assembly enacted the Low and Moderate Income Housing Act (the act) to address the "acute shortage of affordable, accessible, safe and sanitary housing for * * * citizens of low and moderate income." P.L. 1991, ch. 154, § 1 (§ 45-53-2). The act "provides for a streamlined and expedited application procedure whereby `a single application for a [comprehensive permit] to build [low and moderate income] housing in lieu of separate applications to the applicable local [municipal] boards' may be submitted to the zoning board of review of a city or town." East Bay Community Development Corp. v. Zoning Board of Review of Barrington, 901 A.2d 1136, 1145 (R.I.2006) (quoting Coventry Zoning Board of Review v. Omni Development Corp., 814 A.2d 889, 894 (R.I.2003)). The key section of the 1991 version of the act, codified at § 45-53-4 and since amended, directed zoning boards to hold a hearing within thirty days of receipt of the application. P.L. 1991, ch. 154, § 1. Zoning boards were required to "render a decision, based upon a majority vote of said board, within forty (40) days after the termination of the public hearing * * *." Id.¹ If the zoning board failed to hold a public hearing or render a decision within the forty-day window, the application was "deemed to have been allowed and the approval shall forthwith issue." Id. Further, if the zoning board denied the application or granted it with conditions that made the project infeasible, the applicant could appeal to SHAB, which then had the power to usurp the zoning board's control over the review process and approve the project by itself. See P.L. 1991, ch. 154, § 1 (codified as amended at § 45-53-5 and § 45-53-6); Town of Smithfield v. Churchill & Banks Companies, LLC, 924 A.2d 796, 807 (R.I. 2007).

The original version of the act made the streamlined review process available to public agencies, nonprofit organizations, and limited-equity housing cooperatives. P.L. 1991, ch. 154, § 1. Private for-profit developers could take advantage of the act only for projects that included the construction of low or moderate income rental units that remained as such for not less than thirty years. Id. On June 28, 2002, however, the General Assembly made a significant modification to the act that allowed for-profit developers to use the streamlined review process for non-rental housing projects with low- or moderate-income components. P.L. 2002, ch. 416, § 1. Under the revised language of § 45-53-4, for-profit developers were allowed to apply for "comprehensive permit[s]" to build developments that included low or moderate income for-sale housing. P.L. 2002, ch. 416, § 1. Developers thus could take advantage of "one stop shopping" in front of a zoning board by including affordable housing in their applications in lieu of navigating the crowded universe of local review boards. See Town of Smithfield, 924 A.2d at 797-98 n. 1. Not surprisingly, the 2002 amendment opened the floodgates. Municipalities faced a deluge of applications from for-profit developers seeking to take advantage of the streamlined review process. See Town of Smithfield, 924 A.2d at 798.

The General Assembly reacted to the influx in early 2004 by imposing a moratorium on applications by for-profit developers. P.L. 2004, ch. 3, § 1 (codified as amended at § 45-53-4(b)).² The moratorium was effective from February 13, 2004, to January 31, 2005. P.L. 2004, ch. 3, § 1. During the moratorium, the General Assembly amended the act again, effective July 2, 2004, to allow for-profit developers affected by the moratorium to move forward if their applications were deemed to have reached "substantial completeness." P.L. 2004, ch. 286, § 10 (codified as amended at § 45-53-6(f)(1)). Applicants wishing to continue the permitting process under pre-moratorium standards were required to appeal to SHAB before August 1, 2004, after which SHAB was required to "rule on December 1, 2004, on the substantial completeness of applications as of February 13, 2004 * * *." P.L. 2004, ch. 286, § 10 (codified as amended at § 45-53-6(f)(1)).

The act's terms, which remain in force today, allow the obtainment of substantial completeness in one of two ways. SHAB can determine that a zoning board of review acted in a manner demonstrating that it considered the application substantially complete. P.L. 2004, ch. 286, § 10 (codified as amended at § 45-53-6(f)(1)(A)(ii)).³ In the alternative, SHAB can find substantial completeness by applying a ten-factor list promulgated by the General Assembly. Under this latter approach, § 45-53-6(f)(1)(i) instructs that 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" ten factors:

"(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." P.L. 2004, ch. 286, § 10 (codified as amended at § 45-53-6(f)(1)).⁴

Applications found to be substantially complete are subject to remand from SHAB to the respective zoning board for hearings pursuant to pre-moratorium standards. Section 45-53-6(f)(2)). Applications deemed not to have achieved substantial completeness must proceed under heightened procedural and density requirements applicable to post-moratorium projects. Compare P.L. 2004, ch. 3, § 1 (codified at § 45-53-4) with P.L. 2004, ch. 286, § 11 (codified at § 45-53-4(a)); see also New Harbor Village, LLC v. Town of New Shoreham Zoning Board of Review, 894 A.2d 901, 904 (R.I.2006).

II Facts and Procedural History

The three projects at issue in this case were submitted by for-profit developers to the Town of Burrillville Zoning Board of Review (zoning board) shortly before the moratorium went into effect. On or about January 12, 2004, Crystal Lake filed a comprehensive permit application with the zoning board to build housing on 98.96 acres of vacant land composed of open fields, wooded uplands, and wooded wetlands. Crystal Lake proposed the construction of 174 units of two-bedroom townhouses and two- or three-bedroom detached homes, with 20 percent of the overall total reserved as low- or moderate-income housing. On or about January 16, 2004, Pascoag filed a comprehensive permit application with the zoning board to build fifty-six apartment units on 4.05 acres of vacant land. The application proposed seven buildings comprising eight units each, with 20 percent of the units reserved for people with low or moderate incomes. Finally, on or about January 22, 2004, East Avenue filed an application for a comprehensive permit seeking permission...