Connecticut Crosses the Line: the Affordable Housing Appeals Act

• Pages: 281
• Publication year: 2021

Connecticut Bar Journal Volume 65.

65 CBJ 281. CONNECTICUT CROSSES THE LINE: THE AFFORDABLE HOUSING APPEALS ACT

CONNECTICUT CROSSES THE LINE: THE AFFORDABLE HOUSING APPEALS ACT

By EDWARD J. LYONS(fn*) AND MICHAEL W. LYONS(fn**)

On June 29, 1989, Connecticut Governor William O'Neill signed into law an act creating a new procedure regulating appeals from local land use agency decisions relating to "affordable housing."(fn1) The Act, which took effect on July 1,1990, is the latest in a series of legislative efforts directed at addressing the issue of affordable housing within the state of Connecticut(fn2) This legislation, however, marks a new direction taken by those pursuing the elusive goal of creating affordable housing within the state. Connecticut has crossed the line from home rule to state mandate. As one proponent of the legislation explained, "It is an extraordinary bill ... in terms of the change it works in all [of] the practice ... [and in] all [of] the traditions of administrative law ... particularly in respect to land use decision making."(fn3)

The purpose of this article is to explore the key provisions of the new affordable housing development appeals procedure and to examine certain legal issues associated with its implementation.

I. THE BRAVE NEW WORLD: THE AFFORDABLE HOUSING APPEALS PROCEDURE

Public Act 87-550 (entitled "An Act Concerning the Development of a State-Wide Master Housing Plan and the Establishment of a Commission to Study Housing Needs, Policies, and Programs"), enacted during the 1987 January regular session of the Connecticut General Assembly, established the "Governor's Blue Ribbon Commission on Housing."(fn4) The thirty-two members of this commission were appointed for the purpose of generating a report concerning the current and future status of housing in Connecticut.(fn5) The repoit, which considered regional and state housing needs, was received by the Governor and General Assembly in March of 1988. It contained twenty-six recommendations, nineteen of which requested legislation. Twelve of these nineteen were adopted by the General Assembly and signed into law by the Governor.(fn6) The Commission also met throughout the following year and on February 1, 1989, delivered another report and issued an additional 25 recommendations to the Governor and the General Assembly.(fn7) Recommendation number three of the second report suggested that the General Assembly enact a bill creating a new affordable housing appeals procedure.(fn8) The legislature did adopt such a bill, and on June 29, 1989, Governor William A. O'Neill signed the new Affordable Housing Appeals Procedure Act into law.(fn9)

II. TO WHOM DOES THE ACT APPLY

Any person who (1) applies to a municipal planning and/or zoning authority (2) to build an affordable housing development and (3) whose application is denied or substantially restricted, may take advantage of the special procedures available under the Act.(fn10)

The developer's application must be "in connection with an affordable housing development" and made to any "municipal agency exercising zoning or planning authority."(fn11) It is not clear what "in connection with" refers to. For example, suppose a developer applies only for a change of zone. No site plan is submitted, but the developer assures the commission that the change is "in connection with" an affordable housing development. Whether the Act applies to such proposals for zone changes in the absence of specific site plans is unclear. The application, however, must be for the development of affordable housing. There is no requirement for notice to the municipality of the special nature of the application.

An "affordable housing development" is defined in the Act as "a proposed housing development (A) which is assisted housing or (B) in which not less than 20% of the dwelling units" are "deedrestricted" for sale or rent as affordable housing "for at least 20 years."

As to Part (A), "Assisted Housing," means housing which is receiving or will receive financial assistance for construction or rehabilitation, or that which "is occupied by persons receiving rental assistance" under CONNECTICUT GENERAL STATUTES Sections .12 It is 8-345 - 8-346 or 42 UNITED STATES CODE § 1437(f)(fn12) unclear as to how an applicant might prove that the proposed development will receive" governmental assistance when the development is finished or that it will eventually be occupied by persons receiving rental assistance. The degree of certainty and the timing of governmental assistance may become issues for applicants wishing to use this procedure.

As for the deed restrictions in Part (13), for the purposes of defining what sales price or rental price would satisfy this deed restriction, the Act refers to CONNECTICUT GENERAL- STATUTES Section 8-39(a), which states that affordable housing is that in which the occupants pay no more than 30% of their income in housing expenses.(fn13) The level of income upon which this 30% provision applies is that which is "less than or equal to 80% of the area median income."(fn14) Although the Act itself does not define what 11 " is relevant in determining the median income (i.e., is it the area municipality, county, state, or some other geographical area), the legislative history clearly indicates that it is the area defined by the regional planning agencies throughout the state.(fn15) The sales price, for twenty per cent of the dwellings in the development, would, therefore, be calculated by multiplying the area median income by eighty per cent, multiplying that number by thirty per cent, and applying that yearly amount against a mortgage of some undefined term and interest rate.(fn16) Rental prices would be calculated by taking the yearly amount as calculated above and dividing it by twelve. That figure would then represent the maximum monthly rental charge for those units.

The final requirement for utilizing this new procedure is that the application must have been either denied, or "approved with restrictions which have a substantial adverse impact on the viability of the affordable housing development or the degree of affordability of the affordable dwelling units."(fn17) "Substantial adverse impacts" are not defined in the Act, nor does the legislative history cast any light on what this term is intended to mean. The requirement is jurisdictional in nature and will surely raise issues regarding what a "substantial adverse impact" is, what "viability" means, and how much the "degree of affordability" must be impaired before a court may exercise jurisdiction. No guidance is provided in the legislative history and it will be up to the courts to provide substance to this framework.

If, however, a developer feels that these prerequisites for jurisdiction exist, he or she may wish to pursue an appeal of a planning or zoning authority's decision. Under current Connecticut law, the developer would bring an action in the judicial district within which the land is located.(fn18) This new statute, however, sets out a particular place where, and particular judges to whom, an appeal is to be taken.

The new affordable housing appeals procedure dictates that appeals from local planning or zoning authorities shall be filed in the judicial district of Hartford-New Britain, and heard by a limited number of judges especially chosen by the chief court administrator to hear this type of appeal.(fn19) The Act itself sets forth a purpose for limiting the number of judges who would hear such appeals: "so that a consistent body of expertise can be developed."(fn20) Exactly what type of "expertise" is to be developed is unclear. The chairman of the House Committee on the judiciary, Representative Tulisano of the 29th district, who presented the bill to the House of Representatives and moved for the adoption of the amended bill, when pressed on the point of selecting only a small number of judges, suggested judges be appointed who 11 understand the current law," who had been "town attorn[ies] or did a number of zoning appeals in the past," and who have "a desire to deal in land use planning."(fn21) Perhaps this last prerequisite to appointment for hearing affordable land use appeals is the most interesting. The fact that these judges must not only understand the "current law," but also understand and have a "desire" to engage in the land use planning function suggests that the proponents of the bill envisioned a land use planning function for the judiciary. This suggestion was not lost on the opponents of the legislation. After establishing that the type of expertise required for selection would not be sociological or engineering, Representative Radcliffe of the 123rd District suggested that, in fact, those appointed judges would become a state-wide "zoning board in black...