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Town of Portsmouth
Town of Portsmouth Zoning Ordinance
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§ XIX-B

Procedure for approval of construction of low or moderate income housing

Any applicant proposing to build low or moderate income housing may submit to the Planning Board 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. The application and review process for a comprehensive permit shall be as follows:

  • 1. Submission requirements. Applications for a comprehensive permit shall be submitted to the Administrative Officer of the Planning Board and shall include:
    • a) A letter of eligibility issued by the Rhode Island Housing 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 by the Town of Portsmouth for a municipal government subsidy; and
    • b) A written request to the Planning Board to submit a single application to build or rehabilitate low or moderate income housing in lieu of separate applications to the applicable local boards. The written request shall identify the specific sections and provisions of applicable local ordinances and regulations from which the applicant is seeking relief; and
    • c) A proposed timetable for the commencement of construction and completion of the project; and
    • d) 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
    • e) Identification of an approved entity that will monitor the long-term affordability of the low and moderate income units; and
    • f) A reasonably detailed financial pro-forma, or a copy of the financial pro-forma provided to the RI Housing and Mortgage Finance Corp., for the proposed development; and
    • g) For comprehensive permit applications:
      • (1) Not involving major land developments or major subdivisions including, but not limited to, applications seeking relief from specific provisions of the zoning ordinance, or involving administrative subdivisions, minor land developments or minor subdivisions, or other local ordinances and regulations: those items required by local regulations promulgated pursuant to applicable state law, with the exception of evidence of state or federal permits; and for comprehensive permit applications; and
      • (2) Involving major land development projects and major subdivisions, unless otherwise agreed to by the applicant and the Town; those items included in the master plan checklist for low or moderate income housing as provided in the Town of Portsmouth Land Development and Subdivision Regulations promulgated pursuant to § 45-23-40 of the Rhode Island General Laws. Subsequent to master plan approval, the applicant must submit those items included in the preliminary plan checklist for low or moderate income housing for a major land development project or major subdivision as provided in the Land Development and Subdivision Regulations promulgated pursuant to § 45-23-41, with the exception of evidence of state or federal permits.

        Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.

      • (3) All required state and federal permits must be obtained prior to the final plan approval or the issuance of a building permit. Such final plan submission shall include written evidence that the Plans approved at the master plan or preliminary stages have not materially changed.
    • h) 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 as a comprehensive permit application, provided, however, that the imposition of such fees shall not preclude a showing by a non-profit applicant that the fees make the project financially infeasible; and
    • i) Notwithstanding the submission requirements set forth above, the Planning Board 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 and/or financial assistance, statements and advice from other local boards and officials.
  • 2. Certification of completeness. The application must be certified complete or incomplete by the Administrative Officer according to the provisions of the Land Development and Subdivision Regulations provided, however, that for a major land development or major subdivision, the certificate for a master plan shall be granted within thirty (30) days and for a preliminary plan shall be granted within forty-five (45) days. The running of the time period set forth herein will be deemed stopped upon the issuance of a 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 fourteen (14) 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.
  • 3. Pre-application conference. Where the comprehensive permit application proposal is a major land development project or a major subdivision pursuant to the Land Development and Subdivision Regulations the Planning Board may require an applicant proposing a project under this section to first schedule a pre-application conference with the Planning Board, the Technical Review Committee established pursuant to the Land Development and Subdivision Regulations, or with the Administrative Officer for the Planning Board and other local officials, as appropriate. To request a pre-application conference, the applicant shall submit a short description of the project in writing including the number of units, type of housing, as well as a location map. The purpose of the pre-application conference shall be to review a concept plan of the proposed development. Upon receipt of a request by an applicant for a pre-application conference, the Town has thirty (30) days to schedule and hold the pre-application conference. If thirty (30) days have 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 a comprehensive permit.

    Editor's Note: See Ch. 236, Land Development and Subdivision Regulations.

  • 4. Review of applications. An application filed in accordance with this section shall be reviewed by the Planning Board at a public hearing in accordance with the following provisions:
    • a) Notification. Upon issuance of a certificate of completeness for a comprehensive permit, the Planning Board shall immediately notify each local board, as applicable, of the filing of the application, by sending a copy to the local boards and to other parties entitled to notice of hearings on applications under the zoning ordinance and/or Land Development and Subdivision Regulations as applicable.
    • b) Public notice. Public notice for all public hearings will be the same notice required under the Land Development and Subdivision Regulations for a public hearing for a preliminary plan promulgated in accordance with Article VI, Section E thereof. The cost of notice shall be paid by the applicant.
    • c) Review of minor projects. The review of a comprehensive permit application involving only minor land developments or minor subdivisions or requesting zoning ordinance relief or relief from other local regulations or ordinances not otherwise addressed in this subsection, shall be conducted following the procedures in the Land Development and Subdivision Regulations, with the exception that all minor land developments or minor subdivisions under this section are required to hold a public hearing on the application, and within ninety-five (95) days of issuance of the certificate of completeness, or within such further time as is agreed to by the applicant and the Planning Board, render a decision.
    • d) Review of major projects. In the review of a comprehensive permit application involving a major land development and/or major subdivision, the Planning Board shall hold a public hearing on the master plan and shall, within one hundred and twenty (120) days of issuance of the certification of completeness, or within such further amount of time as may be agreed to by the Planning Board and the applicant, render a decision. Preliminary and final plan review shall be conducted according to the Land Development and Subdivision Regulations except as otherwise specified in this section.
    • e) Required findings. In taking final action on an application, the Planning Board shall make positive findings, supported by legally competent evidence on the record which discloses the nature and character of the observations upon which the fact finders acted, on each of the following standard provisions, where applicable:
      • (1) The proposed development is consistent with local needs as identified in the comprehensive community plan with particular emphasis on the Town's affordable housing plan and/or has satisfactorily addressed the issues where there may be inconsistencies.
      • (2) The proposed development is in compliance with the standards and provisions of the Town's zoning ordinance and Land Development and Subdivision Regulations, and/or where expressly varied or waived local concerns that have been affected by the relief granted do not outweigh the state and local need for low and moderate income housing.
      • (3) All low and moderate income housing units proposed are integrated throughout the development; are similar 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.
      • (4) There will be no significant negative environmental impacts from the proposed development as shown on the final plan, with all required conditions for approval.
      • (5) 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, sewage 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.
      • (6) All proposed land developments and all subdivisions lots will have adequate and permanent physical access to a public street. Lot frontage on a public street without physical access shall not be considered compliance with this requirement.
      • (7) 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.
    • f) The Planning Board 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.
    • g) In reviewing the comprehensive permit request, the Planning Board may deny the request for any of the following reasons:
      • (1) If the Town has an approved affordable housing plan and is meeting housing needs, and the proposal is inconsistent with the affordable housing plan;
      • (2) If the proposal is not consistent with local needs, including, but not limited to, the needs identified in its approved comprehensive plan, and/or zoning ordinances and procedures promulgated in conformance with the comprehensive plan;
      • (3) If the proposal is not in conformance with the comprehensive plan;
      • (4) If the community has met or has plans to meet the goal of ten percent (10%) of the year-round units in the Town as defined in § 45-53-3(4)(i) of the Rhode Island General Laws being low and moderate income housing; or
      • (5) If concerns for the environment and the health and safety of current residents have not been adequately addressed.
    • h) All Planning Board decisions on comprehensive permits shall be by majority vote of the membership of the board and may be appealed by the applicant to the State Housing Appeals Board.
    • i) If the public hearing is not convened or a decision is not rendered within the time allowed in Subsections B.4.c) and d), the application is deemed to have been allowed and the relevant approval shall issue immediately; provided, however, that this provision shall not apply to any application remanded for hearing, where more than one (1) application has been remanded for hearing provided for in § 45-53-6(f)(2) of the Rhode Island General Laws.
  • 5. Appeal. Any person aggrieved by the issuance of an approval may appeal to the Supreme Court.
  • 6. Expiration of comprehensive permits. A comprehensive permit shall expire unless construction is started within twelve (12) months and completed within sixty (60) months of final plan approval unless a longer and/or phased period for development is agreed to by the Planning Board 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.
  • 7. Limit on comprehensive permit applications. The Town may 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 Board 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 completed applications are submitted.
  • 8. Annual reports required. The Planning Board shall report the status of implementation to the Housing Resources Commission pursuant to § 42-128-4 of the Rhode Island General Laws, including the disposition of any applications made under the plan, as of June 30, 2006, by September 1, 2006 and for each June 30 thereafter by September 1 through 2010, as further provided in Title 45, Section 45-53-4(4)(xiii) of the Rhode Island General Laws.
  • 9. Remanded applications. Notwithstanding the provisions of § 45-53-4 in effect on February 13, 2004, to commence hearings within thirty (30) days of receiving an application remanded by the State Housing Appeals Board pursuant to § 45-53-6(f)(2) shall be heard as herein provided; in any town with more than one (1) remanded application, applications may be scheduled for hearing in the order in which they were received, and may be taken up sequentially from the date they are remanded, with the thirty (30) day requirement for the initiation of hearings, commencing upon the decision of the earlier filed application.