Agenda - Planning Commission - 02/02/2012

Home

August 25, 2011 1Volume 51 No. 16 Zoning Bulletin The Town responded that it had such authority: The Town had ad- opted a comprehensive plan in order to attain its General Assembly - mandated affordable housing goal, pursuant to the Rhode Island Low and Moderate Income Housing Act ("LMIHA"). That comprehensive plan specifically stated the option to pay a fee -in -lieu of the required number of affordable housing units. The state director of administration approved that comprehensive plan. The Town then had adopted the sub- ject ordinances to implement the state- approved plan. A hearing justice entered final judgment in favor of the Town. North End appealed. DECISION: Vacated and matter remanded. The Supreme Court of Rhode Island held that the Town "may not legally impose a fee -in -lieu in the absence of enabling authority from the General Assembly." Although the General Assembly had autho- rized analogous development impact fees and open space fees, it had not authorized a fee -in -lieu of undertaking the construction of afford- able housing. The court found that the LMIHA was "completely si- lent with respect to the subject of fees-in-lieu." Accordingly, the court directed the superior court to issue an order enjoining the Town from imposing, assessing, or collecting the fee -in -lieu of construction of af- fordable housing. In reaching its conclusion, the court explained that a municipality that had adopted a home rule charter could exercise its own authority over purely local concerns. In this case, fees -in -lieu of affordable hous- ing construction affected state concerns, not just local concerns. This was because "[t]he development of affordable housing is a critical state- wide need." Therefore, as with the analogous development impact fees and open space fees, specific enabling legislation first had to be enacted by the General Assembly before municipalities in Rhode Island could impose such fees -in -lieu, said the court. This, explained the court, al- lows for the "desirability and possible effects of the imposition of such fees -in -lieu [to be] evaluated in the context of statewide affordable housing policy." In short, the court concluded that: Rhode Island municipalities cannot impose fees -in -lieu of affordable housing construction because the State General Assembly must first authorize them to do so and it has not. See also: Town of East Greenwich v. O'Neil, 617 A.2d 104 (R.I. 1992). Case Note: The court acknowledged "the need for municipali- ties to have some degree of flexibility in enacting local legislation 6 © 2011 Thomson Reuters