Rhode Island Property Law : Rhode Island Real Estate & Environmental Attorney & Lawyer John Boehnert for Development & Permits in RI

Many real estate developers and property owners got a significant break from the General Assembly late last year, when legislation passed to extend the expiration date of a broad range of governmental permits.

And many don't know it!

And the General Assembly recently improved on that substantial benefit.

And many still don't know it!

Because these measures passed with so little fanfare, many are unaware that hundreds of State permits which would ordinarily have expired get a new lease on life.

The first bill extended these permits until June 30, 2011. The second bill extended them even further, given the continuing economic slump.

The Legislature was concerned that because of  the economic crisis, banks were not lending and many real estate developers and ordinary property owners were in the position of not having sufficient funds to perform under governmental permits that had been issued to them.

Why Action Was Appropriate

The legislation first enacted says it well:

“The general assembly hereby finds that the current economic conditions in the real estate market demonstrate that there is little or no demand for new construction. In addition, the banking crisis has made it extremely difficult for real estate developers to obtain financing for new real estate construction. Currently there are real estate developers who have expended substantial amounts of money to obtain permits and approvals from various local and state agencies. Many of the permits and approvals will expire prior to an improvement in the economy and the financial and banking industries.”

The General Assembly’s first solution was simple and effective. All permits in effect at the time of passage, November 9, 2009, would not expire until June 30, 2011, regardless of what the permit terms say. (See the legislation.)

But in June of this year the General Assembly acted again, as the economy remained in the doldrums and no doubt there was concern that the original extension of permits may not be sufficient.

First, the new  legislation increased the number of permits protected from expiration by providing that it was not limited to permits in effect on November 9, 2009 but also included permits issued after November 9, 2009 and on or before June 30, 2011.

Secondly, the new legislation said that permits in effect on November 9, 2009 "will be recalculated as of July 1, 2011 by adding thereto the number of days between November 9, 2009  and the day on which the permit or approval would otherwise have expired".

This second bill went on to provide that the expiration date of permits issued between November 10, 2009 and June 30, 2011 "will be recalculated as of July 1, 2011 by adding thereto the number of days between the day the permit or approval was issued and the day the permit or approval otherwise would have expired". (See most recent legislation.)

Permits Affected

The legislation extends to permits issued by the Rhode Island Department of Environmental Management, the Rhode Island Coastal Resources Management Council, and by municipalities under subdivision and zoning ordinances. (See DEM’s Emergency Regulations.)

Not just professional developers will benefit from this legislation. For example, if a homeowner has obtained a variance to put an addition on his house, only to find that the local bank will not lend for the project, the homeowner’s permit will remain valid substantially beyond its normal expiration. Hopefully, lenders will then be in a feistier mood and the funds will be flowing.

A Tip of the Hat!

Given how costly it can be to get development permits, this has to be one of the smartest things the General Assembly has done in some time. And they not only did it right once, they actually improved upon it.  A tip of the hat to the folks on Smith Hill for this one!

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If you own waterfront property in Rhode Island and think you can do with it what you will, so long as you observe zoning ordinances like everyone else, think again.

Coastal waterfront property in Rhode Island is heavily regulated by the Coastal Resources Management Council (CRMC) under a complex set of regulations found in the Rhode Island Coastal Resources Management Program. You ignore that regulatory structure at your peril.

Staying out of Jail

By way of example, some years back one of my law partners came to me with a problem—he had been served with a violation and penalty from the CRMC for “improving” his water view by removing some phragmites and other vegetation. Could I help, he asked? 

After ascertaining more of the facts, I said he had a problem, but at least he hadn’t hired a bulldozer to tear up the coastline. There was a long pause and then he said, “Well, I did rent a Bobcat”.

I said I could probably keep his wife out of jail but he had better pack his toothbrush!

Of course, no one went to jail, but he did pay a fine, and the last I heard CRMC was discussing restoration of wetlands with him.

Now, if a lawyer who should know better can get himself into this kind of trouble, you can imagine what else may be going on along our coastline.

Here is the reality:

If you own waterfront property, you are subject to increased regulations which can be stringent and may control everything from whether you can have a dock to where you can build a patio to what bushes or trees you could prune or remove.

CRMC Buffer Regulations

As for the coast, the CRMC regulates activity within 200 feet of the inland edge of a coastal feature, which includes the open ocean, coastal wetlands, tidal inlets, bays, coves, and tidal rivers. And if a coastal feature, such as a tidal inlet, runs not just along the property’s outer boundary but onto the property, jurisdiction is effectively more extensive.

If the CRMC buffer regulations apply to your property, there is little you can do in the buffer area without getting CRMC permission. (RICRMP Section 150. Coastal Buffer Zones)  The buffer regulations typically apply to new residential development (for example, the construction of a house on a vacant lot), commercial and industrial development, energy related activities and certain public infrastructure.

The regulations create a buffer zone on applicable properties, the size of which is based on the size of the property and the type of water (one of six categories linked to the condition of the abutting shoreline). For example, a 10,000 to 20,000 square foot lot on Type 1 waters may have a 25 foot buffer zone, while an 80,000 square foot lot on Type 1 waters may have 150 foot buffer zone. (Variances may be granted from these requirements at the discretion of the CRMC.)

Assuming say, a 75 foot buffer zone from the most inland edge of the tidal feature on a property, the property owner would be prevented from altering this buffer in anyway, except in compliance with the regulations. The following would generally apply in a buffer zone:

• ·         Maintenance of vegetation in its natural, undisturbed condition
• ·         The planting of native vegetation if CRMC decided that was required
• ·         The filing of a plan for CRMC approval if you wish to prune or trim vegegtation
• ·         Restrictions on what you can do in the buffer zone.

The purpose of the buffer zones is to protect water quality, coastal habitat, scenic and aesthetic quality, historic and archaeological resources and to foster erosion control and flood control.

Given these protections, the regulations for buffer areas are stringent.

Regulatory Restrictions

 For example, pathways which provide access to the shoreline “are normally considered permissible” provided they are less than or equal to six feet wide and follow a winding path that minimizes erosion. 

And if you want to actually see the water, from your new house, “selective tree removal and pruning and thinning of natural vegetation may be allowed within a defined corridor in order to promote a view of the shoreline” but “only the minimal alteration of vegetation necessary to obtain a view shall be acceptable to the Council”.

And if you actually want to enjoy that waterfront, well, “minor alterations of buffer zones may be permitted along the shoreline if they are determined to be consistent with the Council’s requirements. These alterations may include maintaining a small clearing along the shore for picnic tables, benches, and recreational craft (e.g. dinghies, canoes, day sailboats, etc.). Additionally, the CRMC may allow small, non-habitable structures including storage sheds, boat houses and gazebos…..where appropriate.”

Note the repeated use of the word “may”. The regulations give CRMC a good deal of discretion to protect the values served by buffer zones.

At this point, if you are feeling pretty good since you own waterfront property that is not subject to the buffer regulations because, for example, your house was constructed before the regulations were applicable to new residential construction, don’t get too comfortable. You could actually do something that would result in the buffer regulations being imposed on your property!

More specifically, if you expand the square footage of the foundations of your structures on your property by more than 50%, you would be subject to the buffer zone requirements. The regulations are a bit complicated in this area, so this requires some attention. 

When considering expansion, weigh the benefits of the increased structure you want against the restrictions of imposing the buffer regulations on your property, and determine what is more important to you.

And for all of you who thought your house was your castle, well it is, but if that castle is waterfront property, you may be the lord but not necessarily the master of all you survey!

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