September 30, 2004
AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE
By: Joseph Holstead, Research Analyst
You asked (1) how many housing developments have been approved under the affordable housing land use appeals procedure, (2) about the effect legislative changes to the procedure in 2000 had on the way municipalities review proposed affordable housing projects, and (3) for demographic information about the developments.
The state does not keep statistics on the number of housing developments approved under the affordable housing land use appeals procedure; however, in a public hearing conducted by the housing committee in 2003, a Hartford law firm reported that there are approximately 3,000 of the units.
PA 00-206 (codified at CGS § 8-30g) 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 act allows commissions to require developers to submit conceptual site plans if they need a zone change to build an affordable housing development. It also changed several procedural requirements for acting on an application after a developer modifies and resubmits it to the commission that initially acted on it.
The racial composition of tenants in projects developed under the procedure is difficult to determine because the state does not keep a list of such developments. But the law requires developers to present an affirmative fair housing marketing plan governing the sale or rental of all units that encourages diversity.
NUMBER OF HOUSING DEVELOPMENTS
Approximately 3,000 units have been developed under the procedure (CGS § 8-30g), according to written testimony submitted by Timothy Hollister, a partner with the Hartford law firm, Shipman and Goodwin, LLP (which represents private developers), at the Housing Committee public hearing on March 5, 2003. (The state is not required to keep track of the number developments under the procedure.) Hollister's testimony stated that a slowdown in the number of affordable housing applications under the procedure that began after the changes in 2000 (under PA 00-206) continues. Hollister attributes this to “a response by the private, for-profit building community to the 2000 amendments, which lowered the maximum rents and sale prices and increased minimum affordability requirements, making the Act less feasible.”
An estimated 2,500 affordable units were developed during the 1990s under the procedure (the original procedure became effective in 1990), according to Hollister. Since the changes the legislature made in 2000, he estimated that an additional 462 affordable units have been occupied or will become available, despite the slowdown. We have attached a copy of Hollister's testimony.
The law attempts to ensure that people in need of affordable housing can benefit from housing developed under 8-30g. Developers of projects subject to the affordable housing land use procedure must (1) annually certify that they are renting the affordable units to low- and moderate-income people and (2) make up for any units that are not rented to these people by renting the next available units to them (CGS § 8-30h).
CHANGES TO THE PROCEDURE IN 2000
PA 00-206 gives local land use commissions (e.g., a zoning and planning commission) more tools to assess how proposed affordable housing developers intend to achieve their goal to provide affordable housing.
Developer Submission Requirements
Affordability Plan. PA 00-206 requires developers submitting affordable housing applications to a town's land use commission to include a plan showing how the developer intends to make the project affordable. This requirement applies to government funded and privately financed set-aside developments.
The affordability plan must show:
1. the person, entity, or agency responsible for administering the plan, the income limits, and sales or rental restrictions during the period in which the deed restrictions are effective;
2. an affirmative fair housing marketing plan governing the sale or rental of all units;
3. an example of how the developer intends to calculate the maximum rental or sales prices for the affordable units;
4. the sequence in which the developer intends to build the affordable units and offer them for occupancy and the location of these units within the overall development; and
5. draft zoning regulations, conditions of approvals, deeds, restrictive covenants, or lease provisions that will govern the affordable units.
As required by the act, the DECD commissioner has adopted regulations regarding the affordability plan specifying:
1. the formula for determining rent levels and sales prices, including the maximum allowable down-payments when calculating maximum allowable sales prices;
2. the costs developers must include when calculating maximum allowable rents and sales prices;
3. how developers must equate family size and bedroom counts in establishing maximum rental and sales for the affordable units; and
4. the factors developers must consider when computing income.
Conceptual Site Plan
The act allows local land use commissions to adopt regulations under which they can require developers seeking zone changes to submit a conceptual site plan along with their affordable housing application. Such a plan must indicate the total number of units the developer plans to build, how he intends to arrange them on the site, and the proposed sewage disposal, water supply, and roads and traffic circulation.
Approving Modified Affordable Housing Applications
The act changed some of the procedures land use commissions must follow when acting on an affordable housing application after the developer modified and resubmitted it. The law allows a developer to modify and resubmit an application after the commission rejected or approved the original application with restrictions affecting the development's feasibility. He must do this within the time the law allows for filing an appeal.
The act specifies that the same rule that determines the day the developer submitted the original application controls when determining the day he resubmitted the modified application.
The act also changes the conditions under which the commission must hold a public hearing on the modified application. Prior law allowed the commission to hold the hearing, but the act requires it to do so if it held one on the original application.
The act requires the commission to render a decision on the modified application not later than 65 days, rather than 45 days, after receiving it. But it automatically adds 35 days if the applicant needs a wetlands permit and the commission's deadline expires before the 35 days the wetland agency has to issue the permit. The act also makes a conforming technical change.
Burden of Proof
The burden is on the commission to prove certain facts in order to defeat an appeal brought under the procedure.
Among other things, the commission must show and a court must determine that the record contains sufficient evidence to support the decision and the reasons given for it. The act additionally requires the court to independently evaluate the evidence and decide if it shows that:
1. the decision was necessary to protect substantial public interests in health, safety, or other matters that the commission can legally consider;
2. these interests clearly outweigh the need for affordable housing; and
3. the interests cannot be protected by making reasonable changes to the proposed development.
The act appears to have given all land use commissions or their designated authorities the power to force developers to comply with the terms and conditions governing affordable housing developments. It does this by giving them the same powers and remedies that zoning commissions already have to enforce their regulations.
The remedies include fines for violating zoning regulations and civil penalties for failing to comply with cease and desist orders. The fines range from $10 to $100 for each day a violation continues and from $100 to $250 per day, imprisonment for up to 10 days, or both if willful. The civil penalties can be up to $2,500 for failing to comply with a cease and desist order.
The law requires affordable housing applications to include an affordability plan, which must include an affirmative fair housing marketing plan governing the sale or rental of all units, showing how a developer intends to make the project affordable. This requirement applies to government funded and privately financed set-aside developments.
By regulation, the affirmative fair housing marketing plan must attract as tenants or purchasers, of both market-rate and price –restricted units in an affordable housing development, members of racial and ethnic groups who reside within the metropolitan statistical area or non-metropolitan statistical area where the affordable housing development is located, but who are least likely to apply for occupancy (Conn. Agency Regs. § 8-30g-1).
The regulations define racial and ethnic groups least likely to apply as persons who, in the main, do not live in the area of the development because of racial or ethnic patterns, perceived community attitudes, price or other factor, and thus need additional outreach to inform them of the opportunity to live in the development. Regarding race, in predominantly white areas, these are minority groups; in predominantly minority areas, these are white groups.
The regulations define “minority” people as black (not of Hispanic origin) persons, American Indians, Asian or Pacific Islander persons, Hispanic persons, and Eskimo and Aleut persons, (Conn. Agency Regs. § 8-37ee-1). We have attached a copy of the both the procedure regulations and the definitions as listed under 8-37ee.
As one example from testimony Hollister provided at a housing committee public hearing on February 24, 2004, citing information from leasing staff of developer AvalonBay, that a recent project developed under the procedure in Darien had approximately 19 minority households out of a total of 47 total units.