You asked us to provide the legislative history of the affordable housing land use appeals procedure (i.e., the procedure), why the legislature adopted it, and data on projects that have been approved under it.

SUMMARY

The affordable housing land use appeals procedure allows public and private developers to appeal local decisions rejecting affordable housing projects to Superior Court (CGS Sec. 8-30g). It differs from the conventional land use appeals procedure in that its shifts the burden of proving certain facts in court from the developer to the town. The procedure is available in those towns with little or no affordable housing, as defined by law. Developers receiving no government subsidies can use the procedure only if they agree to sell or rent a portion of the units at prices low- and moderate-income people can afford.

PA 89-311 established the procedure and the conditions under which it can be used. Its proponents believed that it was needed because zoning regulations made it difficult to build homes in many towns for town employees and the adult children of their residents. Table 1 lays out the procedure's elements and shows how the legislature changed them since 1989.

Table 1: Legislative History of the Affordable Housing Land Use Appeals Procedure
Provision	Public Act
	89-311	95-280	99-261	00-206
Towns subject to procedure	Less than 10% of current housing stock consists of specified units	No changes	No changes	Changes the base for calculating 10% from current housing stock to stock as of last census
Unit Set-Aside Requirement	20% of the units must be affordable to people earning 80% or less of area median income for at least 20 years	Increases share to 25% and requires units to remain affordable for at least 30 years Bases affordability on 80% of area's or state's median income, whichever was less	Requires a portion of the set-aside units to be affordable to people earning 60% or less of area's or state's median income, whichever was less	Increases share to 30%, correspondingly increases share for very low-income units, and lengthens time during which units must remain affordable to 40 years
Developer Submission Requirements	No provision	No provision	No provision	Developers must submit affordability plans and other documents
Modifying Application	If a commission rejects application, developer can modify and resubmit it	No changes	No changes	Adds provisions regarding public hearings on modified applications
Superior Court	Appeals go to Hartford-New Britain Superior Court and must be assigned to small number of judges	Requires appeals to go to the Superior Court in district where project is located	Requires chief court administrator to assign appeals to judges in different geographic areas. Requires assigned judges to hear pre-trial motions and to hear appeals arising within their districts unless chief court administrator decides otherwise	No changes
Burden of Proof	Sufficient evidence in record to support town's decision, show that it was necessary to protect public interests that outweighed affordable housing needs, and that project could not be changed without harming those interests	Town also meets burden of proof if project gets no government money and is located in industrial zone allowing no residential uses	No changes	Requires court to independently evaluate evidence in record and decide if it meets burden of proof
Income Certification	No provision	Rental projects must annually certify tenant income and rent next available unit to income eligible people when an affordable unit does not comply with deed restriction	No changes	No changes
Zoning Enforcement	No provision	No provision	No provision	Subjects projects to towns' zoning enforcement powers
Moratorium Requirements	One-time, one year moratorium for adding units under specified state housing programs equal to 1% of current housing stock	No change	No changes	Allows three-year moratorium each time town adds certain units equal to 2% of housing stock as of last census or 75 unit equivalent points
Tax Credits for Deed-Restricted Units	No provision	No provision	No provision	Authorizes property tax credits for deed restricted units.

The courts have ruled on 27 projects that were appealed under the procedure and resulted in a decision favorable to the developer, but only seven have been completed. These account for over 800 market rate and affordable units, more than half of which are in Trumbull's Avalon Gates. Five projects are under construction. Developers are finishing plans for some of others or have not started them. Three projects have been canceled.

A 1997 study of the procedure's impact suggested that it could be causing towns to modify their land use regulations to allow more affordable housing. It found that developers have built over 1,000 affordable units since 1990 without having to use the procedure.

LEGISLATIVE HISTORY

PA 89-311

Towns Subject to the Procedure. This act created the procedure and made it available only in towns where less than 10% of the current housing stock was affordable. (PA 00-206 bases the 10% on the towns' housing stock as of the last 10-year census.)

Under the act (and current law), units count toward the 10% threshold if they were developed with government funds, purchased with Connecticut Housing Finance Authority mortgages, or conveyed by deeds restricting their sale or rental to prices low- and moderate-income people can afford. People fall into this income range if they earn no more than 80% of the median income of the area in which they live and the unit costs them no more than 30% of their income.

The housing commissioner (now the economic and community development commissioner) must annually identify and list the towns that are exempted from the procedure.

Unit Set-Aside Requirements. The procedure is available only to developers proposing affordable housing projects. Developers receiving government funds can automatically use the procedure. Those receiving private financing had to sell or rent at least 20% of the units at prices low- and moderate-income people could afford. They also had to place deeds on these units requiring them to remain affordable for at least 20 years after the project's initial occupancy. (Subsequent acts increased the share of affordable units and lengthened the time during which they had to remain affordable.)

Commission Decision. Before a developer can use the procedure, the town must deny his application or approve it with restrictions that undermine the project's viability or the affordability of its units. This applies to any affordable housing application a developer submits to the zoning, planning, planning and zoning commission; the zoning board of appeals; or any agency with planning and zoning powers. The developer must file the appeal within the statutory time period for making appeals (in most cases, 15 days).

Modifying the Application. A developer can modify the application and resubmit it to the commission instead of appealing directly to the Superior Court. He must do this within the statutory time period for filing appeals. The modifications may address some or all of the commission's objections or restrictions. And the commission must treat the modifications as an amendment to the original application.

Once filed, the modified application stops the clock for filing a court appeal on the original application. The commission may then hold a public hearing on the application, but it must make a decision within 45 days after the developer filed the application. If the commission fails to act within this time period, the application is rejected and the developer may use the procedure to appeal the decision on the original application and the proposed modification.

Superior Court. The developer must file his appeal with the Hartford-New Britain Superior Court, which must hear the case as soon as practicable. The chief court administrator must try to develop a "consistent body of expertise" by assigning the case to a small number of judges. Except for these requirements, the appeal must comply with existing statutes concerning zoning appeals.

Burden of Proof. A commission must prove that there is sufficient evidence in the record to support it decision. It must also prove that:

1. its decision was necessary to protect substantial public interests in health, safety, or other matters which the town may legally consider;

2. these interests clearly outweigh the need for affordable housing; and

3. they cannot be protected by making reasonable changes to the project.

(PA 95-280 added more criteria for meeting the burden of proof, and PA 00-206 modified the burden of proof.)

The court may wholly or partly revise, modify, remand, or reverse the commission's decision if the commission cannot prove its case.

Moratoria. The act allowed towns to obtain a one-time, one-year moratorium on affordable housing appeals by adding certain types of units equal to 1% of their current housing stock. (PA 00-206 significantly changes the moratorium requirements.) Towns must have added the units by participating in the now-defunct Connecticut Housing Partnership or the Regional Fair Housing Compact Pilot programs and continued to have participated in these programs after adding the units. The housing commissioner had to certify that the units' completion and publish a notice to that effect in the Connecticut Law Journal.

Legislative Intent. The act's proponents argued that the state needed the procedure to address the housing crisis facing municipal employees and the adult children of residents who could not afford to the live in the towns where they grew up. Representative Cibes stated:

We have areas of the state where kids of families living in those towns cannot buy housing, cannot afford to live in those towns. We have towns in this state where municipal employees of those towns cannot afford housing within the boundaries of the town. We have, with respect to firefighters and police officers and teachers, basically cannot afford places to live in those towns. The infrastructure of this state is at risk because in certain areas of the state the towns cannot find employees within a certain driving distance in order to work in the infrastructure... (House Proceedings, May 30, 1989).

The procedure addressed the extent to which zoning regulations affect the supply of land for building affordable housing. "The primary conclusion of the Blue Ribbon Commission (on Housing) was that the issue that we are grappling with now was the single largest obstacle to the building and creation of affordable housing in the State of Connecticut and that was the availability of affordable land and overcoming the resistance of communities who do not want to have affordable housing in those towns," Representative Rapoport stated.

The procedure addressed this problem without "overriding willy-nilly every local zoning decision," Cibes stated. The procedure does "ratchet up the burden of responsibility which towns must demonstrate in order to justify their actions," but "targets a very narrow class of cases." In doing so, it " builds on the existing system of judicial review and it is supported, as I indicated, by a wide spectrum of organizations which recognize our responsibility to provide housing."

Representative McNally added that the procedure respected a town's authority to "make a decision which is necessary to protect the substantial public health, interest, safety and other matters which the commission may legally consider."

PA 95-280

Unit Set-Aside Requirements. This act increased the share of affordable units from 20% to 25% and lengthened the time period during which they had to remain affordable from 20 years to 30 years.

It also allowed developers to calculate the price of the affordable units based on 80% of the median income for the area or the state, whichever was less. Adding the state median income lowered the dollar threshold for calculating affordable prices in areas where the median income is greater than the state's.

Burden of Proof. The act made it easier for towns to defend themselves against affordable housing appeals by adding an alternative set of objective criteria. Under these criteria, a town satisfies the burden of proof if it can show that the project is receiving no government funds and is being proposed in an industrial zone that specifically prohibits residential uses.

Income Certification. The act added new provisions requiring developers of rental projects approved under the procedure to certify annually to the town that low- and moderate-income people occupy the set-aside units. It allows towns to inspect the tenants' income statements, which the act declared confidential and exempt from freedom of information requirements.

The act also added a requirement that developers make up for any affordable units that were not complying with the deed restrictions by renting the next available units to income-eligible people.

Superior Court. The act changed the venue for bringing appeals. Prior law required a developer to bring the appeal only to the Hartford-New Britain Superior Court, regardless of where the project was located. The act, instead, requires him to bring the appeal to the Superior Court in the district where the project is located.

PA 99-261

Unit Set-Aside Requirements. This act required developers to reserve a portion of the set-aside units for very low-income people. It required them to make at least 10% of the units in the project affordable to people earning less than 60% of the area's or the state's median income, whichever was less. These units counted toward the overall 25% set-aside goal of making units affordable to people at 80% or less of the area's or the state's median income, whichever was less.

Superior Court. The act also narrowed the requirement for assigning judges to hear affordable housing appeals. The law requires the chief court administrator to assign these appeals to a small number of judges so that the court can develop a consistent body of expertise. The act required him also to assign the appeals to judges sitting in different geographic areas.

The act also required the assigned judges to hear pretrial motions on the appeals. And it required them to hear the appeals that arise within their respective judicial districts, unless the chief court administrator requires otherwise.

PA 00-206

This act makes many changes to the procedure, including adding new provisions. We summarize them here; Attachment 1 gives details.

Towns Subject to the Procedure. The act changes one of the factors DECD (formerly the Department of Housing) must use when it annually identifies the towns where developers can use the procedure. It requires DECD to compute a town's share of affordable units based on its housing stock as of the last U.S. census instead of its current stock.

Unit Set-Aside Requirement. The act increases the percent of units developers must agree to make affordable in order to use the procedure and lengthens from 30 to 40 years the time during which they must remain affordable. It also imposes new conditions limiting the amount of rent that developers can charge for the affordable units.

Developer Submission Requirements. The act gives local land use commissions more tools to assess proposed affordable housing developments. It requires developers to submit plans showing how they intend to comply with the law's affordability requirements. The DECD commissioner must adopt regulations delineating some of the elements the plans must contain. The act allows commissions to require developers to submit conceptual site plans if they need a zone change to build an affordable housing development.

Burden of Proof. The act requires the court to decide for itself whether the evidence in the record supported the commission's decision to reject a proposed development. Under prior law, the court only had to determine if there was enough evidence for the commission to have reached the decision it did. Under the act, the court must evaluate the evidence and decide for itself if it shows that the decision was necessary to protect public interests, that those interests outweighed the need for affordable housing, and that the proposed development could not be changed in a way that does not harm the interests.

Zoning Enforcement. The act gives any land use commission that acted on an affordable housing development the same power to enforce the terms and conditions imposed on affordable housing projects that zoning commissions have with respect to other projects.

Moratoria. The act changes the time period and conditions under which towns can obtain a moratorium on affordable housing appeals. Under prior law, towns could obtain a one-time, one-year moratorium on these appeals if they participated in certain state housing programs and created affordable units that equal to 1% of their current housing stock.

Instead, the act allows towns to obtain a three-year moratorium each time the total number of certain types of housing units equals 2% of the housing stock as of the last census or 75 unit-equivalent points, whichever is greater. It specifies the types of units that count toward a moratorium and assigns points to them. DECD must adopt regulations specifying how towns can obtain a moratorium and certify if they qualify for one.

Property Tax Credits. The act allows towns to adopt ordinances providing property tax credits to residential owners if they agree to sell or rent their property only to low- and moderate-income people at prices they can afford. The owners must impose deeds restricting the sale or rental of the property to these groups for 40 years. These units count toward a moratorium and an exemption from the procedure.

IMPACT

Direct

Since 1990, the courts have ruled favorably for the developer with respect to 27 projects that were appealed under the procedure. Attachment 2 describes them. Developers have completed seven of these, accounting for 666 units, 218 of which are affordable. (Avalon Gates in Trumbull accounts for over half of the total units and a third of the affordable ones.) Five projects are under construction (299 total units, 166 affordable), 12 are on the drawing boards (842 total units, 275 affordable), and three have been canceled.

Indirect

The procedure "has prompted dozens of local land use agencies to amend their regulations to improve their housing affordability and access," a 1997 study found (Survey of Development of Affordable Housing in Connecticut and Evaluation of Affordable Housing Land Use Appeals Act: 1990-1996, Either et al., February 1997, p. 4; Attachment 3). The study also found that since 1990, towns have approved at least 1,041 affordable units without developers having to use the procedure.

The study found that most of the affordable units were part of larger projects containing market rate units, "thereby containing an integration of housing prices and income levels within these developments." It also found that the market rate units were "less expensive than much of the other housing product available in the host community."

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Attachment 2: Projects Approved or Developed as a Result of a Decision Rendered Under the Affordable Housing Land Use Appeals Procedure

Town	Project	Developer	Description	Acreage	Units		Tenure	Price of Affordable Units	Status
					Total Units	Total Set-aside
Andover	No Name	Nizza	Single-family duplexes	18.2	14	3	Ownership	Not available	No activity; developer may build elderly housing instead
Avon	Old Farms Crossing	Old Farms Crossing Associates Limited Partnership	Rental	11.4	45	45	Rental	1DB: $610 2BD: 715 3BD: 825	Completed 1999
Berlin	Arbor Commons	Wisniowski	Single-family homes	14.5	32	7	Ownership	Starting at $190,000	Under construction
Danbury	Rigdgebury Hills	Kaufman	Single-family and duplexes	27.4	90	23	Ownership	$183,975 -195,975	Under construction
Durham	No name	Dime Savings Bank	Unspecified	82.0	Not specified	Not specified	Not specified	Not specified	Never built (Industrial developer purchased site)
Farmington	Snowberry Cobble	Barbino Realty & Development Corp.	Single-family and duplexes	54.7	267	89	Ownership	$140,000	Preliminary site work
Glastonbury	No name	Glastonbury Affordable Housing Development, Inc.	Not available	8.2	159	80	Not available	Not available	Never built (town purchased land)
Glastonbury	No name	Christian Activities Council, Inc.	Single-family, detached	33.4	28	28	Ownership	Not available	No activity
Greenwich	Quarry Knoll II	Greenwich Housing Authority	Elderly apartments	2.4	92	37	Rental	Not available	Town appealing court decision
Killingly	Stage Coach Run	Nichols	Single-family homes	4.2	8	2	Ownership	Not available	No action
Milford	Saranor Apartments	Saranor	Elderly	3.3	104	104	Rental	*	Under construction
New Canaan	Milpond	Avalonbay Communities	Apartment complex combined with commercial space in a business zone	3.6	104	21	Rental	Not available	Developer preparing final plan
New Milford	Greenfield Estates	T&N Associates	Single-family, detached	4.0	24	6	Ownership	Prices for affordable units not yet calculated	Planning
Newington	Griswold Hills	Griswold Hills Newington Limited Partnership	Apartments	10.6	128	64	Rental	$210-833	Completed 1997
North Branford	Doral Farms	Shapiro Farms, Limited	Single-family	29.0	23	6	Ownership	$149,900	Completed 1999
North Branford	Marsh Field Apartments	National Associated Properties	Apartments	12.4	94	19	Rental	1BD: $575 2BD: 750	Completed 1999
North Branford	Ashley Park	Furmento	Single Family	39.0	42	8	Ownership	Not available	Developer withdrew proposal
North Haven	No name yet	North Haven Opportunity for Affordable Housing, Inc.	Limited Equity Cooperative	4.8	20	20	Limited equity cooperative	Sweat equity and monthly carrying charges not yet calculated	Developer seeking financing
Orange	Silverbrook	Silverbrook Development Corp.	Condominiums	2.5	21	21	Ownership	Not available	Half built; Completion date 8/00
Orange	Avalon Hill	Avalonbay Communities	Apartments	9.6	168	42	Rental	Not available	Town appealing decision
Southington	Pratt's Corner	Pratt's Corner Partnership	Duplex and single family homes	19.3	26	6	Ownership	*	Completed 1996
Stratford	Helping Way	Nucera	Apartments	0.5	40	10	Rental	Not specified	No action
Stratford	Enrica Rita Residential Village	Thompson	Single-family detached	4.2	25	6	Ownership	Not specified	No action
Suffield	Suffield Meadows West	Polty Homes	Single-family	10	52	11	Ownership	*	Under construction
Trumbull	Avalon Gates	TCR New Canaan	Multifamily		340	68	Rental	$635-1,086	Completed
Trumbull	Trumbull Town Homes	Mutual Housing of Southwestern Connecticut	8 apartment buildings and 1 community building	6.0	52	52	Ownership	1BD: 105,000 2BD: 130,000 3BD: 145,000	Plan to being construction in Spring 01
West Hartford	Flag Road Cooperative	West Hartford Interfaith Coalition, Inc.	State-assisted sweat-equity cooperative in single-family zone bordering shopping area.	1.25	10	10	Limited equity cooperative	Sweat equity; monthly carrying charges: $240 - 725, based on income	Completed and occupied 1995

*Awaiting information