November 6, 2008
AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE AND DEED RESTRICTIONS
By: Joseph R. Holstead, Associate Analyst
You asked (1) if the attorney general (AG) issued an opinion on the number of years that accessory apartments must be deed restricted to count toward a moratorium under CGS § 8-30g based on a 2002 amendment, PA 02-87; (2) what the legislative intent was of the 2002 amendment regarding the number of years that accessory apartments and mobile homes had to be deed restricted pertaining to the moratorium; and (3) if any legislators had amendments filed to clarify the number of years.
The Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.
The AG provided a formal opinion, 2005-021, stating that the statute as amended by PA 02-87 is unclear about the number of years accessory apartments must be deed restricted to count toward a moratorium from the affordable housing land use appeals procedure, even though the legislature's intent was for the act's 10-year deed restriction to count toward both the law's 10% threshold section and the moratorium section (see below). The AG therefore advised the Department of Economic and Community Development (DECD) to keep moratorium approval provisional until the legislature clarified the statute. (DECD is the state's lead housing agency and is charged with oversight of certain provisions of the procedure.)
We found one uncalled amendment in 2002 pertaining to this matter, but it did not contain language addressing subsection 8-30g(l)) (i.e., 10 year deed restrictions and the moratorium).
THE AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE AND MORATORIUM
The affordable housing land use appeals procedure (CGS § 8-30g) is a set of rules developers and towns must follow when a developer sues a town for rejecting an affordable housing project. In regular zoning appeals, the developer must convince the court that the town broke the law by rejecting his or her project (i.e., the developer has the burden of proof). The procedure turns the table on towns by putting the burden on them.
Towns that do not have at least 10% of their dwelling units as affordable are subject to the procedure. Under this law, affordable units are those built, purchased, or rented with government money. They include public housing units, homes purchased with low interest government loans, and government subsidized rents. They also include units where deeds restrict their sale or rental to low- and moderate-income people. Connecticut law bases affordability on the proportion of income a family spends on housing. A unit is affordable if a family earning no more than the municipality's median income pays no more than 30% of its income for the housing (CGS § 8-39a).
As of the 2007, the latest numbers available, 31 towns have at least 10% of their dwelling units meeting the affordable criteria.
By law, a town qualifies for a four-year moratorium from the procedure by obtaining a certification from DECD's commissioner showing it meets a specific threshold of affordable housing units created since 1990. Units that count toward the moratorium include deed-restricted mobile manufactured homes and accessory (“in-law”) apartments. The deed restriction must be recorded on the land record and require the units to be sold or rented affordably for at least 10 years, or so it appears.
On the other hand, 8-30g defines a "set-aside development" as a project where at least 30% of the dwelling units are deed restricted as affordable for at least 40 years after it is initially occupied. Such units may be counted toward (1) the threshold that a town must meet to be immune from the procedure or (2) the moratorium. As a result, it is unclear whether units that are subject to a 10-year deed restriction count toward the moratorium because there is no specific reference to the time period in the moratorium section 8-30g(l), only the 10% threshold section 8-30g(k).
DECD, THE ATTORNEY GENERAL, AND TRUMBULL'S MORATORIUM
In 2005, DECD's commissioner sought the AG's opinion about how long accessory apartments must be deed-restricted as affordable housing to be considered “in determining whether a town has sufficient existing affordable housing to qualify for a temporary moratorium under CGS § 8-30g(l).” DECD's Commissioner inquired because, at the time, Trumbull had submitted an application for a moratorium that included 106 accessory apartments with 10-year deed restrictions. The commissioner asked whether accessory apartments with 10-year deed restrictions could be counted as affordable housing "dwelling units" to qualify Trumbull for the moratorium, or whether such accessory apartments require a 40-year deed restriction.
THE ATTORNEY GENERAL'S OPINION
In reviewing the DECD commissioner's request, the AG's August 12, 2005, opinion discusses legislative intent. His opinion cites Rep. Patrick Flaherty (House Chair of the Housing Committee at the time), speaking on the floor of the House of Representatives in support of HB 5434 (which became PA 02-87) on May 1, 2002:
And third, the bill, as amended, does set up this identification of particular types of affordable units, manufactured mobile homes, and accessory apartments that need to be deed restricted to be counted. It's the ten year deed restriction as opposed to a 40 year deed restriction. That is referenced in other parts of the act. The reason that the ten years was picked was because a ten year period is long enough that there's some reasonable chance that there would be some turnover, particularly of the accessory apartment so that an affordable unit would become available to some potential tenant. On the other hand, it was not so long that it would be completely inconceivable to think of a homeowner willing to take advantage of this process.
And with regard to the deed restrictions, we set up a process for accessory apartments and manufactured mobile homes. That's a ten year deed restriction. This in contrast to the 40 year deed restriction that is referenced in other aspects of the act. So with regard to that, it neither extends nor reduces. It's just a slightly different process and we expect an easier process for manufactured mobile homes and accessory apartments. [Emphasis added by the Attorney General's office.]
The entire May 1, 2002 transcript is available at: http://search.cga.state.ct.us/dl2002/trn/doc/2002HTR00501-R00-TRN.doc (see pages 170-171).
The opinion also states:
Subsection 8-30g(k)(4) which includes accessory apartments with 10 year deed restrictions within the term 'dwelling units' was added by the legislature in 2002 with the passage of 2002 [PA] 02-87. In reviewing the legislative history of 2002 [PA] 02-87, it is apparent that the sponsors of the legislation intended that the amendment of the term 'dwelling unit' to include accessory apartments with 10 year deed restrictions would apply to both Section 8-30g(k) and the moratorium calculation set forth in Section 8-30g(l). However, because Section 8-30g(l) was not specifically amended to reflect this legislative intent, the definition of 'dwelling unit' as used throughout CGS § 8-30g is ambiguous.
The opinion goes on:
When reconciling Rep. Flaherty's explanation of the legislation on the floor of the House of Representatives with the use of the term "dwelling unit" in CGS § 8-30g(k) and CGS § 8-30g(l), it appears that the legislature intended to allow accessory apartments to be counted as "dwelling units" under both statutes if the accessory apartments had ten year, rather than forty year, deed restrictions. Only "dwelling units" in set aside developments would require a forty year deed restriction to be eligible for inclusion in Section 8-30g(l). It is also apparent that this intention was not clearly set forth in Conn. Gen. Stat. § 8-30g(l). However, the presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law. Wilson v. West Haven, 142 Conn. 646, 654 (1955). "[W]e presume that the legislature intends sensible results form the statutes it enacts … Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results." Collins v. Colonial Penn. Ins. Co., 257 Conn. 718, 728-29(2001) (citations omitted; internal quotation marks omitted.)
The opinion concludes:
…In light of the ambiguity in the statute and the legislative intent expressed in Public Act 02-87, this office recommends that you allow Trumbull's [moratorium] application to remain 'provisionally approved' until the General Assembly has the opportunity to address this matter in its next legislative session.
As the AG's opinion also notes, by law, if DECD's commissioner fails to either approve or reject the application within a 90 day period, it is deemed provisionally approved. The provisional approval remains in effect unless the commissioner subsequently acts upon and rejects the application, in which case the moratorium shall terminate when the commissioner notifies the town (CGS §8-30g(l)).
We have attached a copy of the AG's opinion for your reference.
Click or visit the following link to view the statute: http://search.cga.state.ct.us/dlsurs/surk/doc/08--00--0030--gK.doc