May 19, 2008
UNIT SET-ASIDE REQUIREMENTS UNDER THE AFFORDABLE HOUSING LAND USE APPEAL PROCEDURE
By: John Rappa, Principal Analyst
You asked if municipalities can increase the number of affordable units a developer must provide before he can bring an appeal under the affordable housing land use appeals procedure (i.e., the procedure (CGS § 8-30g)). The answer to this question requires a legal opinion, which the Office of Legislative Research cannot give. Consequently, you should not regard this report as one.
Municipalities cannot change the conditions a developer must meet to appeal a decision under the procedure. They may adopt land use regulations that encourage or require developers to provide affordable units, but these regulations do not prevent them from using the procedure as long as the statutory conditions for doing so are met. We based this conclusion on Connecticut Supreme Court decisions defining the procedure as a remedial law for addressing affordable housing needs.
AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE
The legislature created the procedure to address the state's affordable housing needs by requiring zoning and planning commissions to defend their decisions denying affordable housing projects or approving them
with costly conditions. In traditional land use appeals, the developer, not the municipality, must convince the court that the commission acted illegally or arbitrarily or abused its discretion.
The law specifies the conditions under which developers can access the procedure. A developer can use the procedure only in those municipalities the Department of Economic and Community Development (DECD) determined has little or no affordable housing. DECD does this annually based on statutory criteria and publishes a list of the affected municipalities. A municipality goes on the list if fewer than 10% of its housing units:
1. were acquired with government mortgages,
2. were developed or improved with public dollars,
3. are subject to deeds and conditions restricting their sale or rental to low-and moderate-income people, or
4. consist of mobile homes or accessory apartments subject to similar deed restrictions.
In 2007, 138 municipalities were below the 10% threshold.
A developer may use the procedure in these municipalities only if the proposed project includes units low- and moderate-income households can afford. A household falls into this group if it earns no more than 80% of the median income for the area or the state, whichever is less. It can afford the unit if it costs no more than 30% of the household's annual income.
The developer must price at least 30% of the units in this range to access the procedure. But at least 15% of these set-aside units must be affordable to households earning no more than 60% of the area's or the state's median income, whichever is less. Consequently, the developer must make the remaining set-aside units affordable to people earning between 60% and 80% of the area or state median income, whichever is less.
The set-aside units must remain affordable to low- and moderate income people for at least 40 years. They must be subject to deed terms and conditions restricting their subsequent sale or rental to prices these people can afford.
Lastly, the developer can use the procedure only if the commission denied the project or approved it with conditions that could increase the sale or rental prices of the set-aside units beyond the means of low- and moderate-income people.
The conditions for accessing the procedure are set in law, and municipalities cannot change them. We base this conclusion on three Connecticut Supreme Court decisions that collectively defined the law's purpose and how courts must construe it.
1. In Christian Activities Council, Congregational v. Town Council of Glastonbury, the court ruled that the law addresses statewide affordable housing needs (249 Conn. 566 (1999).
2. Consequently, the court described the procedure as a remedial statute that courts must liberally construe (Kaufman v. Zoning Commission of City of Danbury, 232 Conn. 122 (1995)).
3. As a remedial law, the procedure prevails over those statutes authorizing municipalities to adopt zoning and subdivision regulations (Wisniowski v. Planning Commission of the Town of Berlin, 37 Conn. App. 303 (1995)).