Saturday, August 3, 2013

Clarity on the Low to Moderate Income Housing "Mandate"

There seems to be some confusion on whether the Low to Moderate Income Housing Act is a law with stiff penalties for non-compliance.

It is not.

The LMIH Act is a "goal". This goal created a process whereby towns must show a clear intent to eventually have 10% of their housing be LMIH compliant. The town shows this intent by updating the Comprehensive Plan to include that, eventually through rehabilitation and new construction, 10% of housing will be affordable as defined by the LMIH legislation.

That is the extent of the Town's responsibility. There is no written nor direct penalty for not having this goal in the Comprehensive Plan. Importantly:
  • There is no strict timetable by which a town must be compliant. 
  • There is no written rule that says LMIH-compliance supercedes any other consideration the town makes when reviewing proposed housing projects. In fact, within the Act, Section 45-53-4 (Line 4(v)) clearly states the opposite.
Upon establishing the plan (which itself has a process), it is up to housing developers to propose housing projects, and whether rehabilitation or new construction projects, include housing units that would be LMIH eligible. The Town then reviews each project against a wide array of factors, only one of which is whether it helps achieve the LMIH goal. Other factors are considered of equal or greater importance as well, including conservation, appropriateness for an area, ability for infrastructure and social and civil services to support, and so on.

As you can read about in the History section, some of this was considered when an earlier proposed development of Sowams Nursery was rejected. CODDER02806 is concerned this same level of push-back is not being applied to this even higher density project.

If a Town does not agree with a plan, it can reject the plan. At this point, the developer who proposed the plan can appeal the Town's rejection with the State Housing Appeals Board (SHAB), as defined in Section 45-53-5 (c). During this appeal, SHAB will use as part of its criteria items defined in Section 45-53-6, including an evaluation on a Town's progress towards achieving the goal of having 10% of housing units be available for LMIH applicants, and an evaluation of the Town's Comprehensive Plan to see if that has a clear path to the goal.

If SHAB concludes the Town rejected the plan in error, it can override the Town's rejection and the result is the developer can proceed with the project. However, even at this point, the Town can elevate the case to the State Superior Court, as defined in Section 45-53-4 (a)(4)(x).

CODDER02806 feels there are numerous strong cases to be made against putting a 48-unit corporate own dense housing project on the nursery, and we are working very hard to present ongoing evidence to the town by researching information and documents that clearly support rationale for opposing the development.

The process established by this Act does put the onus on the Town to prepare a strong case against the proposed development. However, as evidenced by the above, there are many steps in this lengthy process, making it neither a foregone conclusion nor a "done deal".

Barrington is not yet at the 10% level. However, nor are most other towns in Rhode Island. Of the few towns that are at or above the 10% level, all but Newport was already there at the time the mandate was passed. The LMIH Act was intended for Towns to balance all needs, and along the way achieve the goal.

We do not feel this project balances all of the needs of the town, nor does it adequately acknowledge all aspects of the Comprehensive Plan the Town itself wrote and amended. And we certainly do not see the need to fast track a high density project in an inappropriate area, when other options are clearly included in the Act.

We hope this clears up some the confusion surrounding the actual and implicit goals of the proposed development of Sowams Nursery.