Connecticut's New Affordable Housing Appeals Procedure: Assaulting the Presumptive Validity of Land Use Decisions
| Publication year | 2021 |
| Pages | 169 |
66 CBJ 169. Connecticut's New Affordable Housing Appeals Procedure: Assaulting the Presumptive Validity of Land Use Decisions
I. BACKGROUND: Connecticut's AFFORDABLE HOUSING CRISIS
Connecticut has a serious shortage of affordable housing. (fn1) Statewide estimates show that among Connecticut's 169 municipalities, 169,000 households are in need of adequate shelter. (fn2) In the capitol region alone, one state agency has estimated that the affordable housing shortage affects over 32,000 households. (fn3) The recent downturn in Connecticut's economy, which has boosted unemployment in the state, has exacerbated the problem. Like most projections of housing demand, the current estimates of need have been extrapolated from trends that could be "altered or even reversed by changes in public policy or economic and sociological conditions." (fn4) Optimistically, in other words, things could improve. Today, however, the problem is real. And over the short term, there seems little hope for a quick turnaround in the state's affordable housing crisis. (fn5)
The need for affordable housing affects those with moderate, low, and very low incomes. In some suburban towns, municipal employees - teachers, firefighters, police officers, and others -
complain that they cannot afford to live in the communities where they work. (fn6) In others, children of local residents have been "priced out" of the towns in which they grew up. The housing crisis has also hurt the state's economic growth. Employee relocation costs have discouraged large businesses from expanding or moving into Connecticut. While this state has the highest per capita income in the nation, housing costs consume a comparatively large amount of employee wages, making Connecticut particularly less attractive to businesses that depend on a blue-collar workforce. (fn7)
The lack of adequate housing is especially acute among the poor, who can afford neither the luxury of home ownership (fn8) nor the high cost of private rental housing. Most of Connecticut's subsidized housing is concentrated in cities. But large-scale, urban public housing projects have in recent years become more than symbolic of the entrapment suffered by those caught in a cycle of poverty. (fn9) Little wonder that few of the poor would choose to live in the projects if given a choice. (fn10) Hartford Superior Court judge Robert Satter, who has witnessed the impact of the housing crisis on Connecticut's poor, offers the sober reminder that "[i]nadequate and insufficient shelter for the poor results in a
growing army of homeless and a depressed and degraded population of children that threatens the stability of our cities and the future of our country." (fn11) Lately, there has been talk in Connecticut of razing projects and moving residents to scattered site housing. (fn12) But where to locate such housing - within the cities? within the suburbs? - has yet to be addressed. Federal funds for public housing have progressively dwindled since the Reagan years, (fn13) and the state's most recent fiscal difficulties will preclude the large infusion of aid needed to overhaul the public housing system.
Against this background, the Connecticut General Assembly has taken a small but necessary step-the enactment of an affordable housing land use appeals procedure (fn14) - that could begin relieving the housing shortage.
A. Impetus For the Affordable Housing Appeals Procedure: The Blue Ribbon Commission on Housing
In 1987, Governor William A. O'Neill appointed a Blue Ribbon Commission (BRC) to study Connecticut's housing crisis and develop recommendations for solving this problem. In its 1989 report, the Commission's Land Use Subcommittee set forth eight integrated proposals for removing impediments to affordable housing production. Some of them were aimed at the failure of municipalities to adopt land use practices that would encourage lower-cost housing development, such as lowering minimum lot sizes and requiring developers to participate in inclusionary zoning techniques. (fn15) Others involved revamping existing land use statutes
to ensure that commissions or third parties do not impose costly delays on developers as a means of thwarting development. The third and most controversial of the eight proposals - the recommendation to establish an affordable housing appeals procedure-was the "centerpiece" of the Subcommittee's report. (fn16) The recommendation, revised and adopted by the General Assembly as Public Act 89-311, gives an affordable housing (fn17) developer who meets certain statutory standing criteria recourse to a special appeal process if a local commission denies his proposal or approves it with restrictions affecting the proposal's feasibility. The most controversial feature of the new law is its reversal of the presumption of validity traditionally granted local land use decisions.
In recommending a special appeals procedure, the BRC stated that "too often housing needs are not given the same weight as are the other more generalized concerns a planning and zoning commission or wetlands agency is charged with protecting." (fn18) Although Connecticut's Zoning Enabling Act has, since 1984, placed an affirmative duty on towns to make zoning decisions that "encourage the development of housing opportunities," (fn19) this requirement has only recently been enforced by the Connecticut Supreme Court. (fn20) The BRC proposed the new appeals procedure to bring greater attention to the Act's housing provision and, at the same time, to correct the inherent weakness in the existing land use decisionmaking process. The BRC recognized the need to "intrude as little as possible on sound local planning decisions and
on legitimate community efforts to ensure proper land use, patterns," (fn21) but found that no other procedure would ensure that towns give sufficient consideration to housing needs:
We strongly felt, and it can not be said often enough, that if municipalities do not give greater weight to the need for creation of affordable housing when evaluating development proposals, we will have business as usual: the housing crisis will not go away. (fn22)
A concomitant concern of the BRC was that Connecticut courts have been highly deferential to local land use commissions. The BRC found that "many times the local commissions' decisions elevate vaguely-stated and relatively unimportant concerns over the need to build affordable housing." (fn23) At the same time, courts have not rigorously required commissions to give reasons for their decisions or to persuasively support them. (fn24) As discussed below, the need for evidence in the commission's record, to support denial or restricted approval of an affordable housing application, is an important feature of the new law.
B. The Pretextual Nature of Economic Discrimination
An unspoken reason for recommending the affordable housing appeals law was to encourage racial integration in Connecticut suburbs. (fn25) The unequal distribution of wealth and resources caused in part by towns' exclusionary land use decisions (such as large-lot zoning or restrictions on multi-family housing) has created an imbalance between the housing needs of low income, urban minorities and the housing opportunities of their more affluent, white, suburban neighbors. (fn26) Opening up the suburbs to a full range of economic classes will, at the same time, promote racial dispersal.
Economic discrimination in housing can easily function as a
pretext for other forms of discrimination. (fn27) Both Title VIII, the federal Fair Housing Act, (fn28) and the Connecticut Fair Housing Act (fn29) proscribe housing discrimination based on race, color, or national origin. Neither of these laws explicitly makes economic discrimination illegal. (fn30) Nor are benign economic classifications "suspect" or "quasi-suspect" under the United States Supreme Court's constitutional jurisprudence. (fn31) However, courts interpreting the federal Fair Housing Act have frequently inferred racial discrimination from municipal enforcement of zoning laws that precluded construction of affordable housing in all-white areas or that confined lower-income multifamily construction to predominantly non-white areas. (fn32)
The BRC and the legislature took seriously federal housing discrimination cases in which local zoning decisions to exclude on the basis of economics masked racial bias. (fn33) The Commission was aware that the local control that Connecticut municipalities highly
prize will be wrenched from them by the courts if their decisions to block affordable housing development hide more invidious discriminatory motives. (fn34)
"This bill will create opportunities for additional housing." (fn35)
The Affordable Housing Land Use Appeals Procedure Act passed by a narrow margin in both the House and Senate. The law became effective July 1, 1990, and since then several suits have been filed under the new procedure. (fn36) It continues to be targeted by opponents, who in early 1991 introduced several proposals, including one that would shift the burden of proof back to the developer and another that would repeal the law entirely. (fn37) None of these proposals has garnered the support needed to win approval, however. The General Assembly may be waiting to see how the courts apply the new procedure when they decide the first affordable housing appeals. One attorney who testified at the public hearing on the law said recently, "It took a lot of effort to get this bill two years ago, and...
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