Transcript: How New Zoning Rules Affect Rhode Island’s Housing
CLARICE: Good morning, everybody. And welcome to this week’s episode of Environmentally Speaking.
KERIN: Morning.
CLARICE: That’s Kerin. She’s joining me instead of Marisa. I’m Clarice and today we’re talking about big changes, apparently.
KERIN: Yes. There’s been some big changes in Rhode Island law having to do with land use and zoning.
CLARICE: All right. I think you and I are probably the only people excited about this. It’s a dry topic.
KERIN: It’s possible.
CLARICE: But it’s an important topic. So I guess the first thing that catches me is the fact that there are changes at all is a big deal. It seems very antiquated. It seems very stuck in its ways and routines. So why were there changes?
KERIN: Really good point. The thing about zoning that is so interesting to me is that it becomes outdated. You know, as the state and also towns, they enact these rules and then over time the rules just sit and, you know, society moves on. Things grow. Economies change. You’ve got new uses, things that nobody would have contemplated and that makes your zoning and your land use regs outdated. So in my opinion kudos to the Rhode Island Legislature for taking this on.
This is a big undertaking in my opinion and it’s a little bit of trial and error. It’s a wait and see, little bit of a roller coaster game. It’s sweeping changes and the intent, I think, is good. It’s to spur development to make it a little easier, a little more efficient for developers to get their permits a little quicker and then also, you know, importantly to create some more affordable housing.
CLARICE: Yeah. I think I’m just overall shocked that the Rhode Island Legislature decided how can we be more efficient, how can we be more accommodating. And just the fact that they were like we need to look at this and change it. There wasn’t some outside influence coming in saying you have to make this change. The fact that they just said this is the time to do this to me alone is just a bit shocking. It’s a bit unique.
KERIN: Yeah. I don’t know. Yeah. I can understand why that would be shocking because I don’t know if that’s quite it.
CLARICE: Oh, okay.
KERIN: My thought is that for a long time lawyers — especially, you know, that’s my world. That’s who I know. Lawyers in this area have heard the call of our clients that they have a piece of property. They want to develop it.
CLARICE: Yeah.
KERIN: They assemble the team. They put all this money into the plans and then the permitting process takes too long and things change when you have a delay. So if your permitting process is taking too long, we all hear about interest rates on the news. Interest rates shift. That means your financing could be at risk. That means that your proposed tenant for whatever use you were going to put in that building is now moving on to something else. So delay in the development world can cause problems and it can kill projects. So I think maybe — I don’t know this but maybe part of the reason for this was that the legislature maybe heard that and said, you know, we really need to take a look at this and make this process a little more up to date, make it a little bit more efficient.
[0:03:42] CLARICE: All right. I mean, shoot, I’ll take it. It’s not as altruistic as I thought, but I’ll take it. So what are some of the big changes to kind of speed things up in a beneficial way?
KERIN: So I think the one you hear about most in the news is the affordability component.
CLARICE: Yes.
KERIN: And that’s the one that you’re hearing about there’s an affordability crisis in Rhode Island and it has been the opinion of some, not everybody but some, that restrictive zoning laws have contributed to high housing costs. So what does that mean. That means that if you have a town and you are saying, sure, you can put a house on this lot, but you need three acres in this area, well, three acres for a house is a pretty good sized lot.
CLARICE: Yeah.
KERIN: And that means that if you — that means you get less houses, right. The idea of that law is to make sure you have less density. Less density means less housing, less actual structure. So when you take something like that as a zoning law, it reduces the number of possible houses that can be built, so that’s just one example of a restrictive zoning law that would reduce the housing stock. So if you take the changes that were made, there’s an effort to allow multifamily housing, right.
So you’ve got more than one unit in a building, for example, and accessory dwelling units which is very interesting in most residential zones. So what does that mean. That means that even if you have a three-acre zone — so say my house has to be on three acres and I’ve got this house, but I’ve got all this extra land. The legislature is saying you can build what’s called an ADU, an accessory dwelling unit. And it’s basically an accessory to your house, so it’s usually, in theory, a smaller building. It can be —
CLARICE: So kind of like an un-law house?
KERIN: Exactly. Exactly.
CLARICE: Okay.
KERIN: So the idea being that it creates a rental market for people looking for housing.
CLARICE: All right. And, now, does this change in sort of percentage of — and I know a lot of municipalities go by percent use, so if you have three acres you can only build on ten percent of them wherever you so — does it change for every municipality? Is there now like a uniformity that’s happening, or is every municipality now asked to increase the percent built on?
[0:06:26] KERIN: So as of right now it does vary from community to community and also from zone to zone. So you could have — within one community you could have several different residential zones. Within those zones you have your individual density or maximum lot coverage regulations. That is an interesting question because what these changes say to me is that — well, it raises a question, are we headed towards a state mandated set of zoning laws.
So if that were to happen — and I’m not saying it is. I’m just saying it’s a question in my mind. If we were to head in that direction where the state took over those types of rules and regulations for the towns, all of that would be gone at the town level and the state would be telling the towns what was allowed and what’s not across the board. So it would remove that variability when you go from town to town or from zone to zone. It would all be at the state level.
CLARICE: I think that’s going to be interesting to see how it develops because thinking about that max lot usage I’m thinking of like Little Compton where it’s very spacious. There’s very little density. And then I’m thinking about something like Cranston where — or, you know, the middle of Providence where you’ve got apartment buildings on smaller lots. Most of those lots don’t have a yard and instead they switch it out for parking, so, you know, ten percent for each of them is going to be drastically different, you know, just using some random figure.
KERIN: You’re completely right. And then when you — you know, to draw a distinction, you know, even further, say you take the city of Providence versus New Shoreham.
CLARICE: Yeah.
KERIN: Those are drastically different places with different needs. So if we were to move in that direction, it will be interesting to see how the state would even attempt to ensure that every municipality’s interests were being addressed and represented.
CLARICE: Yeah. So we’ve got the affordable housing kind of being taken into consideration, promoted. It sounds like there’s some ideas about that. What are some of the other changes because there’s a lot of changes that were sent?
[0:09:07] KERIN: There’s a lot of changes and there’s just no way that we could cover them all in the podcast. So certainly if you’re thinking about development and you’re listening to this, get in touch with somebody that is dealing with this on a day-to-day basis. It’s a lot. Another really big change is something called unified development review. So before when you wanted to build something — say you wanted to build a retail shop and you were going to put it on a parcel. You know, maybe it’s one acre. But because of some site constraints, you had to build it pretty close to a lot line that you didn’t — you didn’t want to, but you had to.
So that would mean that you would probably need both planning board approval for the new retail building and you’d also need some zoning relief because you would be what’s called within a setback. You got to be so far away from your lot line. So it used to be that you would go to planning. You would go for your first of usually two or three approvals and the planning board hopefully would approve it and they would say it’s approved, but you’ve got to go get your zoning relief. So it’s approved condition on getting your zoning relief. So you’d finish that planning. Then you’d go over to zoning at the next month, right, because now you’ve got to go to another hearing before another board. You’d go to zoning. Hopefully you’d get that relief. I missed that. Oh, I think — I didn’t hear that.
CLARICE: Oh, there I am. So what I was saying is usually that only happens once a month which means you spent one month prepping for planning and now you have to wait another month to prep for zoning, so there’s a built in delay.
KERIN: Then you’ve got to go back to planning —
CLARICE: Oh, all right. We’re on month three.
KERIN: — to finish up, right, so you’re bouncing back and forth. And what the new change does is create something called unified development review. And what that does is it says, hey, if you have to go to planning but you also have to go to zoning, you can stay at planning and the planning board will give you both.
CLARICE: Nice.
KERIN: They’ll give you both your planning approval and they’ll sit as a zoning board sort of and they’ll analyze and hopefully approve your zoning relief, so that cuts down on what we just said, right, bouncing back and forth and waiting.
CLARICE: Yeah. Yeah. I mean, in the past a good time frame would have been 90 days to get that all done and now you’re looking at, again, ideally 30 days. That’s a big jump.
KERIN: That’s right. And you just don’t know what’s going to happen when you go to hearing. You know, if you go to a hearing and one or two board members have a question that maybe you didn’t anticipate, oftentimes they need more information before they can make a decision, so in those cases you matter gets continued. So you’re sitting at a hearing and the board needs information and you wish you had it that night, but it’s just not something you thought of and now you got to come back the following month.
[0:12:14] CLARICE: Yeah.
KERIN: So you could stay at one or more of these boards for a couple of months while that gets worked out, as well.
CLARICE: I mean, that really does add up quickly. And my only question about kind of combining the two and speeding things up, are there — in the kind of interest of being speedier, are steps being dropped? Are things being lost? Like I know there’s, you know, consideration for a land survey, you know, making sure it’s not like a — there’s no protected species on whatever land you’re trying to develop, you know, sort of conservation considerations. Because there’s now this shift to we have to be more mindful and pick it up a little bit, are steps being dropped as a result? Are the responsibilities being reduced?
KERIN: Great question. And the answer to that is no. Your permitting checklist, your application materials, meaning everything that you’d need to submit, your DEM approvals, your, if you need it, you know, engineering narratives [inaudible] all of that stuff is still required, so you still need all of the same things you needed before. It’s just that once you have all that together and submitted the process after that has been streamlined.
CLARICE: Oh, okay. So it’s really cutting down on the lag time in between. It’s not necessarily cutting down the responsibility.
KERIN: Exactly.
CLARICE: Nice. All right. I was worried about that.
KERIN: That’s a great question and the answer is no.
CLARICE: Oh, that’s good. So I also saw in the changes that there is the complete elimination of the State Housing Appeals Board. Again, I know that the whole goal is speeding things up, picking things up, but now adding that to the superior docket, what is that change going to look like in practice? How does that all shimmy over?
KERIN: So it’s interesting. SHAB was the appeals board for affordable housing projects and what the state has done is they made a big change and created a land use court, so that means that there is a Superior Court judge assigned to hear all of the land use zoning types of matters and appeals and that’s great. That’s really great because that means we finally have a court and a judge that is well versed in these types of matters because the thing about zoning which always surprises me even after 20 something years is that people think they know zoning because common sense, right. You live in the world. You drive around. You see your commercial in the commercial zone and your residential in the residential zone, but it’s so much more complex than that.
[0:15:21] CLARICE: Yeah.
KERIN: And to have a court and a judge that is steeped in those issues, it just makes it, again, more efficient, easier for plaintiffs and defends to get their matters heard and decided. So, yeah, again, it seems to be another effort by the legislature to streamline the process and put everything before one decision maker at the Superior Court.
CLARICE: Is it actually one judge, or is it now one sort of department?
KERIN: It is one judge.
CLARICE: Oh, wow.
KERIN: Yeah. So years ago the Superior Court developed a business calendar and it was highly successful. And the purpose of the business calendar was to hear matters involving businesses, so you had a judge who knew business law, was steeped in those issues and it was successful because of that and also because it sped things up. You had businesses who were waiting for decisions for a long time because they were on a calendar before a court or whatever judge they had in the mix of a lot of other cases. So the land use court that just started in January is similar in that idea that it is designed to hear those cases that fall within that world of land use.
CLARICE: So I guess the other kind of hidden benefit that I don’t — and this is a benefit I’m imagining is because it is a judge who is familiar and sort of specialized in this space there’s not necessarily that learning curve of catch me up to speed, help fill me in on the surroundings or maybe their law clerk going and doing additional research about some of the sub-issues that maybe the plaintiff and defendant say, you know, we’re in agreement about this, but it’s step two that we need to talk about. So to have that foundation laid might actually make, you know, the physical being in court move a little quicker.
KERIN: That’s exactly it. And to be able to go in as an attorney representing a client and know that you’ve been reading the opinions or the decisions that are coming out of that court, you can pretty clearly go to the past history of those decisions or opinions and say, okay, I know that the last three times an issue that was like mine came before this court this is what the judge decided. And it helps — to what you’re saying, it helps narrow the issues. It helps the parties involved fine tune their arguments so that they come before the court with well thought out — in my opinion it should be well thought out prepared arguments —
[0:18:28] CLARICE: I hope so.
KERIN: You hope so, right. That’s the hope. — that are pointed and get the issues that need to be decided, decided.
CLARICE: That feels like a big undertaking to shift that whole calendar over and create a calendar, really, but I don’t know. I’m interested to see how it keeps going.
KERIN: Me, too.
CLARICE: Yeah. Probably you more than me. I’m just nosy.
KERIN: So far so good.
CLARICE: Good.
KERIN: We’ll see. Everything just became effective January 1st, so we’re still very much —
CLARICE: This is brand new.
KERIN: Yeah. I mean, lawyers are still catching up. Cities and towns are still catching up.
CLARICE: Yeah.
KERIN: They now have to amend all of their zoning laws, a lot of their subdivision regs to make sure they’re into compliance and that’s a big undertaking for cities and towns.
CLARICE: And I imagine that’s going to be where we’re seeing any of the lag. It’s just for the municipalities, the cities, the towns to catch up, figure out how does that affect us and how do we implement those changes. So I think if there is any sort of lag or that growth curve it’s going to be everybody figuring out how to adapt to it.
KERIN: Yeah. I think you’re right. And I to think that there’s going to be some catch up and some kind, call it, fine tuning. The thing is that when you passed sweeping legislation like this you often, I would think — I’m not in the legislature, but I often would think you’d have to go back and say, okay, here are a couple of things we didn’t — we didn’t think about this [inaudible]. This maybe could be tweaked so that the language is a little bit more what we needed it to be. So my expectation is both the state and the local towns will have to, you know, kind of be mindful in watching how things progress so that if they do need to do some, what I’m calling, cleanup changes they can do that, as well.
CLARICE: Yeah. I think if there’s going to be adjustments happening, which I’m sure there will be, that’s who’s going to figure it out because they’re going to be the first wave of groups to see this, see how it’s playing out and sort of figure out where are the gaps and how are those going to be filled and adjusted.
KERIN: Right.
CLARICE: Yeah. These are lots of big changes. So kind of — and these aren’t even all of them. So some of the big takeaways is we’re seeing a shift to a greater percent of more affordable housing and that’s coming in some unique ways such as allowing — and tell me, was it an accessory dwelling? Is that what we’re —
KERIN: Yeah. It’s called —
CLARICE: Yeah.
KERIN: The acronym is ADU, accessory dwelling unit.
[0:21:18] CLARICE: So we’re going to see, you know, the encouragement of ADUs. There’s a whole calendar shift happening, some parts — I love SHAB — that just disappeared and now we’re going to a new system. So any takeaways for folks now that they’ve heard kind of three big old changes?
KERIN: I would say, you know, the takeaway is it’s sweeping change. The intent, I believe, is good, but it is a bit of a wait and see for everybody to see how it works out and there may be additional changes coming. And to the extent that this series of changes streamlines the process and makes it easier, more efficient, more affordable for developers to get projects done, I think it could spur some good development here in the state.
CLARICE: Yeah. We’re in a kind of wait and see phase, but this time it’s a hopeful one.
KERIN: I think so.
CLARICE: Awesome. So, folks, if you have any comments, questions, thoughts about this — Kerin, I’m going to ask you to put in your e-mail because I mess it up every time.
KERIN: Not a problem. I’ll say it and then I’ll spell it. It’s info@DesautelBrowning.com And my parents had to go and be different and name me Kerin, K-e-r-i-n at Desautel, D-e-s-a-u-t-e-l, Browning, B-r-o-w-n-i-n-g.
CLARICE: Awesome. And, you know, let us know. Hit us up on Instagram, Facebook. I will always call it Twitter. Our videos are up on YouTube if you want to see some past stuff. Most of our topics are evergreen, so we do have a backlog and have a good one.
