Topic:
ZONING; MUNICIPAL ORDINANCES; HOUSING FINANCE; LAND USE;
Location:
HOUSING - FINANCE;

OLR Research Report


March 4, 2008

 

2008-R-0056

AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE

By: John Rappa, Principal Analyst

You asked what the relationship is between the Affordable Housing Land Use Appeals Procedure (CGS 8-30g; i.e., the procedure) and other laws.

SUMMARY

The relationship between the Affordable Housing Land Use Appeals Procedure and other laws is based on its statutory purpose, which is to address the state's affordable housing needs. The procedure does this by forcing zoning and planning commissions to defend decisions denying affordable housing projects or approving them with costly conditions. Normally, a developer bringing an appeal must convince the court that the town acted illegally or arbitrarily or abused its discretion.

Consequently, the Supreme Court described the procedure as a remedial law courts must liberally construe. The courts have applied this standard to uphold the procedure's affordable housing criteria over those specified in local affordable housing zoning regulations. They have also applied it to uphold different requirements for submitting and processing affordable housing applications. The courts have affirmed decisions based denials of permits and approvals from other “coordinate” agencies with narrower land use responsibilities.

REMEDIAL LAW

Three Supreme Court decisions collectively define the law establishing the procedure and how courts must apply it.

1. The law addresses statewide affordable housing needs (Christian Activities Council, Congregational v. Town Council of Glastonbury, 249 Conn. 566 (1999)).

2. Consequently, it is a remedial statute that courts must liberally construe (Kaufman v. Zoning Commission of City of Danbury, 232 Conn. 122 (1995)).

3. The procedure prevails over those statutes authorizing towns to adopt zoning and subdivision regulations (Wisniowski v. Planning Commission of the Town of Berlin, 37 Conn. App. 303 (1995)).

These characteristics are evidenced in the burden of proof towns must meet to prevail in an affordable housing appeal:

The town denied the project (or approved it with conditions objectionable to the developer) to protect substantial public health and safety interests.

Those interests outweigh affordable housing needs.

The proposed project cannot be changed or modified without making it infeasible or unaffordable to low- and moderate-income people.

When a commission fails to meet this burden, courts must “wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in the manner consistent with the evidence in the record before it” (CGS 8-30g(g)). “This is more authority than provided for in other administrative appeals, and the court can direct the agency to approve the project as is or with suggested modifications” (Connecticut Land Use Law and Practice, Fuller, 3 ed., 2007, 175).

RELATIONSHIP TO LOCAL AFFORDABLE HOUSING REQUIREMENTS

The procedure “is separate and distinct from municipal zoning regulations which provide for special exemptions from density limits in zoning districts as allowed under section 8-2g of the General Statutes…” (Fuller, 163). These exemptions potentially reduce housing costs by allowing developers to build more units per acre than the zoning regulations normally allow (i.e., density bonuses).

The procedure, which also incorporates this approach, prevails over local affordable housing zoning regulations. It is available to a developer proposing an unsubsidized, privately financed project only if (1) it includes the number of affordable units the statute requires and (2) he agrees to keep them affordable for at least 40 years. As long as the project meets these criteria, the developer can use the procedure. This is the case even if the town offers density bonuses under criteria stricter than the procedure's (Fuller, p. 171; National Associated Properties v. Planning and Zoning Commission of Town of North Branford, 37 Conn. App. 788; and Indian River Associates v. North Branford Planning and Zoning Commission, 7 Conn. Super. Ct. Rpts. 632, 1992 WL 108763).

APPLICATIONS AND PROCEDURES FOR APPROVING AFFORDABLE HOUSING APPLICATIONS

Developers proposing eligible affordable housing projects must still submit the same types of applications zoning and planning commissions require for conventional, market-rate housing projects. But they may do so under different rules and requirements. In Kaufman, the Supreme Court ruled that a developer could submit a site plan that does not conform to zoning without requesting a zone change. It also ruled that the zoning commission does not need detailed plans to decide if the zone change is appropriate.

In Wisniowski, the court affirmed that a planning commission must act on an affordable housing subdivision application even if it proposes lots smaller lots than the zoning regulations allow. Developers normally request necessary zone changes before submitting subdivision applications. The court held that the procedure “does not allow a commission to use its traditional zoning regulations to justify a denial of an affordable housing application, but rather forces the commission to satisfy the statutory burden of proof.”

Unlike the requirements and procedures for processing affordable housing applications, those for processing affordable housing appeals are largely the same as those for processing conventional appeals. These include the statutory timeframe for filing land use appeals and the two-part test for showing aggrievement under CGS 8-8 (Fuller, p. 174).

ROLE OF COORDINATE AGENCIES

Like other types of developments, affordable housing projects may require approvals from other “coordinate agencies” beside zoning and planning commissions. But a developer can use the procedure to appeal only zoning and planning commission decisions. In some situations, a planning or zoning commission can properly deny an affordable housing application based on a coordinate agency's decision.

For example, developers cannot use the procedure to appeal inland wetlands agency and Water Pollution Control Authority (WPCA) decisions. The former “often have a more significant impact on restricting land from development and limit the density of housing,” Fuller stated (p. 168). WPCAs can have a similar effect, and the Supreme Court has affirmed a decision denying an affordable housing subdivision that was based on a WPCA's decision denying a sewer connection (River Bend Associates, Inc. v. Planning Commission of Town of Simsbury, 271 Conn. 41).

JR:tjo