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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With near double digit national unemployment, the collapse of the housing market throughout the country, and soaring state deficits, you might think that State government would be too busy to worry about you and your laundry.

Well, think again.

Last month Maryland  passed “Right to Dry” legislation, preventing condominium, cooperatives and homeowner associations from prohibiting homeowners from installing clotheslines on their property. In doing so, it joined a handful of states that have in some way addressed this issue.

Yes, clotheslines. Remember them? They were everywhere before the advent of dryers.

And here in Rhode Island, Right to Dry legislation was introduced in the General Assembly but did not come to a vote before the Legislature adjourned for the year. Right to Dry legislation was also introduced in neighboring Connecticut but I understand it too died in the legislature.

The so-called “Right to Dry Movement” is proposing legislation in the various states that would prohibit municipal government, homeowner’s associations, condominium and cooperative associations, deed restrictions and covenants running with the land from preventing outdoor drying of clothes through the use of clotheslines or drying racks. For websites supporting Right to Dry, see www.laundrylist.org and www.right2dry.org.

Florida’s Right to Dry statute, FSA Section 163.04, serves as the basis of the model legislation advocated by Project Laundry List. The Florida statute prohibits municipal governments and various homeowner associations from prohibiting the installation of solar collectors, clotheslines or other energy devises based on renewable resources.

The Maryland statute is more limited than Florida, pertaining only to clotheslines and only to single family property, meaning less than five dwelling units, and it allows for reasonable restrictions to be placed on the clotheslines.

A few other states have joined the laundry wars. For a thumbnail summary of legislative enactments as of last summer, see my good friend Dwight Merriam’s News Brief in Zoning Practice. (Scroll down as the article starts on the lower right.)

Many who support Right to Dry legislation do so for reasons pertaining to energy efficiency and promotion of renewable energy, and many are concerned about curbing greenhouse gas emissions, and therefore arguably reducing their adverse impact on climate change.

(I am not qualified to wade into the debate on greenhouse gas emissions and its asserted causal link to climate change, but I would note two thoughtful articles for readers interested, after the “Climategate” hubbub, in whether there is in fact a scientific “consensus” on this issue. Please see conservative columnist John O’Sullivan’s article and Jay Richard’s article in the American Enterprise Institute Journal.)

Many who oppose Right to Dry legislation do so because it is feared the open air drying of laundry could have a negative aesthetic impact on the property and thereby reduce property values. Someone’s El Grande boxer shorts blowing in the breeze may not exactly dress up the neighborhood, so to speak.

In commenting on the proposed Rhode Island Right to Dry legislation in an op-ed piece in the Providence Business News, I noted that my primary concern with this type of legislation is that it abrogates private property rights.

For example, several of these statutes flatly tell property owners what they must allow on THEIR property. And this is despite the fact that buyers in shared ownership communities, such as condominiums, are almost always given notice prior to their purchase of the restrictions governing their new home. If those restrictions are so onerous or so offensive, do not buy the property, or buy the property and seek to convince your co-owners that the restrictions should be changed.

But should a minority of property owners really be running to the legislature to try to get lawmakers to effectively abrogate rules and regulations enacted or preserved by a majority of property owners to protect their property interests?  Did majority rule and private property rights fall off the Constitutional bus somewhere?

One view may be that “Right to Dry” legislation is “Wrong to Try” and should have a “Right to Die” in the legislatures where it is pending.

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