Rhode Island’s housing process package

“Renting in Providence puts city councilors in precarious situations.” That was the Providence Journal’s leading headline a few days ago, as the legislature waited for Governor Daniel McKee to sign a pile of housing-related bills (Update: He signed them all). Rhode Island doesn’t have a superstar city to garner headlines, but it’s housing costs have mounted as growth has crawled to a standstill.

But unlike in Montana and Washington, Rhode Island’s were largely procedural, aiming to lubricate the the gears of its existing institutions rather than directly preempting local regulations. House Speaker Joseph Shekarchi (D-Warwick), who championed the reforms, clearly drew on his professional expertise as a zoning attorney to identify areas for procedural streamlining.

Specific and objective

Six bills transmitted to the governor cover the general rules affecting most Rhode Island zoning procedures:

• S 1032 makes it easier to acquire discretionary development permission. 
  • Municipalities cannot enforce regulations that make it near-impossible to build on legacy lots that do not meet current regulatory standards.
  • Municipalities can more quickly issue variances and modifications. (Rhode Island draws a unique distinction between minor and substantial variances, labeling the former “modifications” and subjecting them to a simpler process. A substantial variance must go before a board for approval; a modification can be approved administratively unless a neighbor objects.
  • Municipalities must issue “specific and objective” criteria for “special use permits”, otherwise those use are automatically allowed as of right.

That phrase – specific and objective – shows up again and again in Speaker Shekarchi’s bills.

• S 1033 requires that zoning be updated to match a municipality’s own Comprehensive Plan within 18 months of a new plan’s adoption. It also requires an annually updated “strategic plan” for each municipality, although the content and legal force of the strategic plans are unclear to me.
• S 1034 broadly revises and clarifies several categories of development approval. It formalizes that site plan review must have “specific and objective” guidelines. It also allows slightly larger housing developments (nine lots or units, rather than five) to take advantage of the simpler “minor land development” category.
• S 1038 updates notice requirements, mentioning websites and allowing notice via first-class mail rather than registered or certified mail. Another bill S 1039, has not advanced, but would make a more interesting change: expanding rezoning notice requirements from property owners within 200′ to property owners and tenants within 1000′. I’d like to see a city try this experimentally – but the cost of noticing so many more people is a good reason not to mandate it.
• S 1050 and S 1053 replace a State Housing Appeals Board and with a land use docket within the superior court.

Double or nothing

Two bills dealt specifically with density bonuses for mixed-income housing. Mandatory inclusionary zoning has rapidly gained popularity in Rhode Island: a 2006 state report identified just two mandatory IZ programs. A 2021 study identified 10. A 2022 report identified 16.

• S 1051 regulates local “inclusionary zoning” (IZ) programs. Local IZ programs will have to require 25 percent of all units to be affordable and will also have to offer a density bonus of two additional market-rate units for each deed-restricted unit.
• S 1037 creates a statewide density bonus of 5 to 12 units per acre for developments containing 25% to 100% deed-restricted low- and moderate-income housing and streamlines the approval process, including eliminating a clause requiring them to cause “no significant negative environmental impacts.” It preempts limits on family-sized units or excessive parking requirements in such developments. Notably, this applies to single-family as well as multifamily development and has provisions for areas unserved by public sewer. It could thus become a powerful tool for creating much denser single-family subdivisions affordable at moderate incomes.

I reviewed the 16 IZ ordinances, plus a draft ordinance under consideration in Middletown. None of them complied with either provision of S 1051. The majority require 20 percent of new units to be affordable. Few provide a density bonus big enough that the number of market rate units matches the base zoning density, let alone exceeding it as S 1051 requires. Presumably, these noncompliant ordinances must now be amended to comply with the new law.

An outstanding question is whether the state density bonus in S 1037 applies in addition to a local IZ density bonus created by S 1051.

Salmagundi

Finally, three other bills cover a variety of specific topics:

• S 311 prohibits rental application fees.
• S 1035 allows the adaptive reuse of commercial buildings for residential and mixed uses by right. This bill has gained ample attention, but may deserve even more: it legalizes multifamily housing in every Rhode Island city and town without absurdly large per-unit lot sizes, in most cases for the first time.
• S 1052 creates a pilot program fund for transit oriented development. In order to apply, municipalities must rezone to allow at least a moderate density level near transit stops.
• EDIT: Removed S 1061, which isn’t part of the Speaker’s package and hasn’t been sent to the governor.

A bridge too far

One notable part of Speaker Shekarchi’s package did not pass: legalizing ADUs (S 1006, S 1036, and H 6082). In a lot of states, beginning with California, ADU legislation has been the easy first step in statewide housing legislation. Rhode Island’s bills were not especially ambitious, legalizing only ADUs within the footprint of an existing structure (except on large lots). This bridge too far shows that Rhode Island’s Democrats were not especially bold – and it also shows how process legislation can pass even in an environment where legislators are unwilling to preempt.

In most other states that pass pro-housing reform, bipartisanship is a central part of the political strategy. But Rhode Island’s Republican minority, occupying just 13 percent of legislative seats, was essentially irrelevant.