July 11, 2006
SIGNIFICANT AFFORDABLE HOUSING LAND USE APPEAL STATUTORY CHANGES AND CASE LAW SINCE 1997
By: Joseph R. Holstead, Associate Analyst
You asked for information about statutory changes to the affordable housing land use appeals procedure (CGS § 8-30g) and significant court cases involving the procedure since 1997, as an update of OLR report 97-R-1317.
This report summarizes changes the legislature made in 1999, 2000, and 2002 (there were no changes in 1998, 2001, or since 2002), to the affordable housing land use appeals procedure under CGS § 8-30g and Connecticut Supreme Court cases concerning the procedure since 1997. OLR report 97-R-1317 provided brief summaries of cases discussed in the Survey of Developments of Affordable Housing in Connecticut and Evaluation of Affordable Housing Land Use Appeals Act, February 1997, by Ethier et al., (a similar survey has not been completed since).
Following the summaries of statutory changes are summaries of six CGS § 8-30g Supreme Court cases since 1997.
We did not include a summary of a case discussing the procedural process as to whether the court will accept an appeal, Ensign-Bickford Realty v. Simsbury Zoning Commission, 245 Conn. 257 (1998).
STATUTORY CHANGES TO CGS § 8-30g SINCE 1997
The affordable housing land use appeals procedure is a set of rules developers and courts must follow when a developer sues a municipality for rejecting a proposed affordable housing project or a housing project that would include a certain amount of affordable units. Municipalities without at least 10% of their housing stock meeting definitions of affordability under the law are subject to the procedure. Currently, 139 towns fall into this category, according to the Department of Economic and Community Development's (DECD) 2005 list, which is the latest (attached).
The 2000 amendment to § 8-30g and Quarry Knoll II Corporation et al. v. Town of Greenwich Planning and Zoning Commission et al., 256 Conn. 674 (2001), clarified that not only must the town commission sufficiently show its reasons for denying an application are valid, but the court must also carefully examine the record, consider each reason presented by the commission and independently weigh each reason against the town's need for affordable housing.
PA 99-261 tightened the conditions developers must meet before they can use the affordable housing land use appeals procedure to challenge a town's decision rejecting an affordable housing project. The law at the time required developers receiving private financing to make at least 25% of the units affordable to low- and moderate-income people (the number was increased to 30% in 2000). The act required them to make a portion of these units affordable to people within this group who have very low incomes (i.e., less than or equal to 60% of the state or area median income, whichever is less, in the municipality where the housing is located).
The act also narrowed the requirement for assigning judges to hear affordable housing appeals. The law required the chief court administrator to assign these appeals to a small number of judges so that the court could 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 the 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 made many changes to the affordable housing land use appeals procedure.
Affordable housing stock. The act changed one of the factors DECD uses 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 (e.g., the 2000 federal Census, until the next is completed in 2010).
Percentage of affordable units. The act increased the percent of units developers must agree to make affordable in order to use the procedure (from 25% to 30%) and lengthened from 30 to 40 years the time during which they must remain affordable. It also imposed new conditions limiting the rent that developers can charge for the affordable units.
Assessment by local commissions. The act gave local land use commissions more tools to assess proposed affordable housing developments. It required 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.
Resubmittal. It changed several procedural requirements for acting on an application when a developer modifies and resubmits it to the commission that initially acted on it.
Court must evaluate and decide for itself. The act required 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. The act requires the
court to 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.
Land use commissions. The act gave any land use commission, rather than just zoning commissions, that acted on an affordable housing development the same power to enforce the conditions for using the procedure that zoning commissions have to enforce their orders and regulations.
Moratoriums. It changed 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 affordable housing appeals if they participated in certain state housing programs and created units that equaled 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.
PA 02-87 made several additional changes to the moratorium under the affordable housing appeals procedure law. By law, a town qualifies for a moratorium by obtaining a certification from the economic and community development commissioner showing it meets a specific threshold of affordable housing units created since 1990. The act extended, from three to four years, the length of an appeals procedure moratorium a town can obtain. It also extended, by one year, any moratorium in effect on the act's effective date (October 1, 2002).
The act also added deed-restricted mobile manufactured homes and accessory (“in-law”) apartments to the list of affordable housing units that count toward a town earning an exemption from the appeals procedure. The deed restriction must be recorded on the land record and for at least 10 years require the units to be sold or rented at prices so that low- and moderate-income individuals or families will pay no more than 30% of their income for them.
AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE SUPREME COURT CASES SINCE 1997
Burden of Proof, Review Requirement and Precedent
Under the procedure, municipalities must convince the court that they had to reject a developer's affordable housing project for three particular reasons:
1. it could seriously harm public health and safety (e. g. , create a traffic hazard),
2. that the potential harm was greater than the need for affordable housing, and
3. the town could not minimize or prevent the harm by making reasonable changes to the proposed project.
That is, towns bear the burden under the law of proving certain facts to the court if a developer appeals their decision rejecting a proposed affordable housing development. (Normally, developers in land use appeals bear this burden.)
According to Joseph P. Williams, an attorney with Shipman & Goodwin, LLP, a law firm that works on 8-30g cases, in an April 2002 document:
[i[n Quarry Knoll II Corp. v. Planning and Zoning Commission, 256 Conn. 674 (2001), the Supreme Court acknowledged that Public Act 00-206 was intended to address Christian Activities Council [249 Conn. 566 (1999)] and clarify the original intent of § 8-30g(c). The court confirmed that an affordable housing appeal entails a two-step review process in which the court first determines whether the commission has shown that its decision is supported by sufficient evidence in the record, then conducts a plenary review of the record to make an independent determination as to whether the commission has sustained its burden of proof for the remaining three prongs. As a clarifying amendment, the court held that P.A. 00-206 was to be applied retroactively. http://www.shipman-goodwin.com/images/sgimages/affordable_april02.pdf
Decisions Where the Commission's Denial of an Application Was Sustained
Christian Activities Council, Congregational v. Town Council of the Town of Glastonbury et al., 249 Conn. 566 (1999). The Christian Activities Council, which had a contract to purchase real property from a public water company, appealed the town's application denial for a zoning change from “reserved land” to “rural residence,” which it needed to construct an affordable housing development. The Superior Court dismissed the case. The Christian Activities Council appealed. The Supreme Court held that:
1. sufficiency of evidence standard, not preponderance of evidence standard, was standard of review;
2. any one reason stated by town, if supported by sufficient evidence and properly applied, could support decision;
3. the need for affordable housing is to be addressed on local basis in the appeal; and
4. evidence supported denial of application on basis of need to preserve open space.
River Bend Associates, Inc. v. Simsbury Zoning Commission, 271 Conn. 41 (2004). The plaintiffs, owners of a 363 acre parcel in Simsbury, submitted an application to the town planning commission (the defendant), seeking approval of a subdivision plan to construct 371 new residences, including 93 homes to be sold at affordable prices as provided by § 8-30g. The plaintiffs also submitted an application to the town water pollution control authority, which denied the plaintiffs' request for sewer connections. It did so because 55 of the proposed residences with septic systems would be located within the sewer service area, which the authority considered an attempt to bypass the sewage allocation limits. The town also denied an application to the zoning commission requesting certain zoning amendments and site plan approval. The town planning commission denied the plaintiffs' subdivision application; the plaintiffs in turn appealed to the Superior Court, which sustained the appeal.
On appeal from the judgment of the Superior Court, the planning commission challenged, among other things, the trial court's conclusion that the denials of the plaintiffs' applications by the zoning commission and the water pollution control authority were not valid reasons for denying the subdivision application.
The Supreme Court held that because it had concluded in River Bend Associates, Inc. v. Zoning Commission (271 Conn. 1, decided on the same day as this case, September 7, 2004) [see below] that the zoning commission's denial of the plaintiffs' request for zoning amendments was improper, the planning commission's claim that it had properly relied on the zoning commission's denial was moot.
The Court also held that (1) the trial court improperly determined that the water pollution control authority's denial of the plaintiffs' sewer application was not a valid reason for the planning commission's denial of the subdivision application; (2) the planning commission was correct to conclude the sewer commission's denial meant the plaintiffs could not obtain sewer application approval within a reasonable amount of time and, (3) therefore, the commission had no statutory authority (§ 8-26) to grant approval of the plaintiffs' subdivision application nor was it required by statute (§ 8-26 or § 8-30) to approve the application without conditions.
Decisions Where a Commission's Denial of Application Was Not Sustained
Quarry Knoll II Corporation et al. v. Town of Greenwich Planning and Zoning Commission et al., 256 Conn. 674, (2001). A developer and a nonprofit entity that under the town's housing authority's control sought a review of the town planning and zoning commission's denial of an application for a proposed elderly affordable housing development. In a second case, a developer and nonprofit entity sought a review of the commission's rejection of a proposed application modification. After a case transfer, the Superior Court granted motions to consolidate the appeals. The court sustained the appeals.
The commission and objectors who intervened in administrative proceedings appealed. After this transfer, the Supreme Court held that the:
1. first developer and nonprofit entity were aggrieved (wronged) by the commission's decision;
2. second developer, who obtained title to the property during pendency of appeals, had standing;
3. the commission's failure to act on request for approval of municipal improvement proposal within 90 days of its submission, under the town's charter, acted as an automatic approval of proposal;
4. affordable housing statute amendment clarifying the court's scope of review had retroactive application (PA 00-206);
5. commission was not required to state explicitly in its decision that its reasons for denying application clearly outweighed need for affordable housing; and
6. commission had the burden of proving that no feasible and prudent alternatives to proposed development existed.
JPI Partners, LLC v. Milford Planning and Zoning Board, 259 Conn. 675, (2002). In this case, the plaintiffs appealed to the trial court from decisions by the planning and zoning board denying six applications related to the construction of an affordable housing development. The property on which the proposed development was to be located was in two zoning districts, a light industrial zoning district and a residential zoning district. The board denied the plaintiffs' applications after some board members had cited the proposed development's adverse impact on the town's tax base and on public safety due to traffic generated by the development.
In their appeal, the plaintiffs challenged the board's reasons for denying the applications, claiming that the reasons given did not satisfy the statutory (§ 8-30g [c] [Rev. to 1999]) requirements for denying such applications. The board raised to the court, for the first time, the exclusive industrial zone exemption of § 8-30g (c) (Rev. to 1999) as the reason for its denial, and claimed, therefore, that it was not required to meet the statute's burden of proof requirement. The trial court determined, among other things, that the board's reliance on the industrial zone exemption was proper and dismissed the plaintiffs' appeal, from which, on the granting of certification, the plaintiffs appealed.
The Supreme Court held that the trial court improperly dismissed the plaintiffs' appeal by having improperly permitted the board to invoke the industrial zone exemption for the first time on appeal; § 8-30g (Rev. to 1999), when read consistent with its text and purpose, requires a zoning board to make an express collective statement, concurrent with its decision denying an affordable housing application, that its denial was predicated on the industrial zone exemption. (under § 8-30g (c), the usual presumption in favor of affordable housing does not apply to a proposed development that will be located in an exclusively industrial zone.)
River Bend Associates, Inc., et al. v. Zoning Commission of the Town of Simsbury, 271 Conn. 1 (2004). The plaintiffs filed an application with the town zoning commission, proposing amendments to the zoning regulations and zone map with respect to the property and seeking approval of a site plan for an affordable housing development. The zoning commission, upon concluding, among other things, that the plaintiffs' plan to reduce residual pesticide levels in the soil was not adequate to reduce the public health risks, denied the application.
The plaintiffs appealed to the Superior Court from the zoning commission's decision, and that court, upon concluding that the zoning commission had not met its burden under the affordable housing statute (§ 8-30g [g]) of proving that the application denial was necessary to protect substantial public interests and, therefore, that the grounds on which the zoning commission had relied in denying the application did not outweigh the need for affordable housing, sustained the appeal and ordered the approval of the application subject to certain conditions.
The zoning commission appealed from the judgment of the trial court.
The Supreme Court held that - because it concluded in River Bend Associates, Inc. v. Planning Commission (271 Conn. 41, decided on the same day as 271 Conn. 1, September 7, 2004) that (1) the town planning commission properly denied the plaintiffs' subdivision application and (2) the trial court's ruling that the site plan should have been approved subject to conditions had to be reversed - the plaintiffs could not claim that there was a reasonable probability that its subdivision plant would be approved.
The Supreme Court further held that the trial court properly determined that the zoning commission's denial of the plaintiffs' amendment requests was not supported by valid reasons. In particular, the zoning commission's reliance on evidence of soil contamination to deny the amendment requests was improper, the record having established only a possibility of harm and not, as required under § 8-30g, that there was sufficient evidence that a threat to a substantial public interest required the denial of the affordable housing proposal, nor was the zoning commission's reliance on deficiencies in the plaintiffs' affordability plan proper, the perceived deficiencies not having implicated a substantial public interest in health, safety or other legitimate concerns so as to justify the denial of the amendment requests.
The Court further held that the zoning commission failed to prove its claim that the trial court improperly determined that the commission had failed expressly to acknowledge the town's need for affordable housing and to balance that need against the need to protect a substantial public interest; although the commission was not required to state expressly in its decision that its reasons for rejecting the applications clearly outweighed the need for affordable housing, the trial court's decision was not based solely on a finding that the commission had failed to do so. Instead, that court carefully examined the record, considered each reason presented by the commission and independently weighed each reason against the town's need for affordable housing.
Furthermore, the Court found that the zoning commission's claim that the trial court improperly failed to consider the cumulative weight of the reasons for denying the zoning amendments was not useful; the commission failed to establish that the reasons it presented in support of its denial - soil contamination and deficiencies in the affordability plan - even considered cumulatively, constituted a threat to substantial public interests.
Finally, it held that the zoning commission could not prevail on its claim that the trial court was required to affirm its denial of the plaintiff's amendment requests rather than to impose conditions that the commission claimed were unreasonable; the trial court was authorized to require as a condition on the approval of the zoning amendments that the soil and groundwater be in compliance with the applicable regulations before any construction could begin.
Carr v. Bridgewater Planning and Zoning Commission, 273 Conn. 573 (2005). The plaintiff appealed against the town commission's decision to deny his modified application for approval of his affordable housing subdivision plan. The court sustained the plaintiff's appeal and remanded the matter to the commission for further proceedings. The defendant then denied the plaintiff's modified application, and the plaintiff appealed. The court sustained the plaintiff's appeal and ordered the approval of the plaintiff's modified application subject to certain conditions, and the defendant, on the granting of certification, appealed. The Supreme Court affirmed the trial court's decision.