Location:
HOUSING - FINANCE; LAND USE;
Scope:
Connecticut laws/regulations; Background;

OLR Research Report


January 29, 2013

 

2013-R-0002

AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE

By: Julia Singer Bansal, Legislative Analyst II

You asked several questions concerning the affordable housing land use appeals procedure, which we answer separately below.

1. WHAT IS THE AFFORDABLE HOUSING LAND USE APPEALS PROCEDURE UNDER CGS 8-30g?

The affordable housing land use appeals procedure (“the procedure”) is a set of rules that allows developers to appeal to Superior Court local zoning and planning commission decisions denying affordable housing developments or approving them with costly conditions. In traditional zoning appeals, the developer must convince the court that the commission (i.e, municipality) acted illegally, arbitrarily, or abused its discretion by rejecting his or her proposed development. The procedure instead places the burden of proof on the municipality.

A municipality must meet certain criteria for a court to uphold the local commission's decision. First, it must prove that the record contains sufficient evidence to support its decision. Next, it must meet one of two sets of conditions. Under the first set, it must convince the court that:

1. the decision was necessary to protect substantial public interests in health, safety, or other matters the commission may legally consider;

2. these interests clearly outweigh the need for affordable housing; and

3. they cannot be protected by making reasonable changes to the proposed development.

Under the second set, the municipality must prove that the proposed development is (1) receiving no government funds and (2) located in an industrial zone that specifically prohibits residential uses.

Under the procedure, “affordable housing development” means a housing development that is (1) assisted housing or (2) a set-aside development. “Assisted housing” means housing that receives government assistance to construct or rehabilitate low- and moderate- income housing, or, housing occupied by individuals receiving rental assistance (i.e., Section 8). A “set-aside development” is a project where at least 30% of the dwelling units are deed restricted as affordable for at least 40 years after initial occupancy.

A developer can use the procedure only in those municipalities that the Department of Economic and Community Development (DECD) determines have little or no affordable housing stock. A municipality is subject to the procedure if less than 10% of its housing stock:

1. is assisted housing,

2. is currently financed by Connecticut Housing Finance Authority mortgages,

3. is subject to deeds and conditions restricting the sale or rental to low-and moderate-income people, or

4. consists of mobile homes or accessory apartments subject to similar deed restrictions.

Additionally, a municipality qualifies for a four-year moratorium from the procedure by obtaining a certification from DECD showing it meets a specific threshold of affordable housing units created since 1990.

2. HAS THE GENERAL ASSEMBLY AMENDED CGS 8-30g SINCE ITS PASSAGE AND IF SO, HOW?

Since establishing the procedure in 1989 (PA 89-311), the General Assembly has made substantive changes to the statute four times (in 1995, 1999, 2000, and 2002). We summarize the changes below. (Several other acts, not included here, made technical changes to the statute.)

PA 95-280

Criteria for Rejecting Projects. The act gave municipalities another criterion for defending their decisions to reject proposed affordable housing developments. Specifically, it allowed a municipality to reject a development if it could prove that the project was not receiving public assistance and was located in an industrial zone that prohibited residential uses.

Venue for Appeal. The act changed the venue for bringing appeals. Under prior law, a developer could bring an appeal only to the Hartford-New Britain Superior Court, regardless of the proposed project's location. The act required that the appeal be made to the Superior Court in the district where the proposed development would be located.

Affordable Units. The act increased, from 20% to 25%, the share of units developers had to agree to make affordable in order to use the procedure and lengthened, from 20 to 30 years, the time during which they had to remain affordable. The definition of affordability was changed to the lower of (1) 80% of the area median income or (2) 80% of the state median income.

Reporting Requirement. The act created a reporting requirement for developers (or owners and managers) who won appeals under CGS 8-30g. Under the requirement, developers had to annually certify that they were renting the affordable units to low- and moderate-income households and make up for any units that were not rented to such households by renting the next available units to income-eligible households. The act also authorized commissions to review the income-statements of the tenants who rented restricted units used to meet the developer's affordable housing quota.

PA 99-261

Affordable Units. The act tightened the conditions developers had to meet before they could use the procedure to challenge a municipality's decision rejecting an affordable housing development. Prior law required developers receiving private financing to make at least 25% of the units affordable to low- and moderate-income people. The act required them to make a portion of these units affordable to people within this group who had very low incomes (i.e., less than or equal to 60% of the state or area median income, whichever was lower, in the municipality where the housing was located).

Judicial Process. The act narrowed the requirement for assigning judges to hear affordable housing appeals. The law required the chief court administrator to assign these appeals to a small number of judges so that the court could develop a consistent body of expertise. The act required the chief court administrator to assign appeals to judges sitting in different geographic areas. It also required the assigned judges to hear appeals, including pretrial motions, that arose within their respective judicial districts, unless the chief court administrator required otherwise.

PA 00-206

Housing Stock. The act changed one of the factors DECD had to use when it annually identified the municipalities where developers could use the procedure. It required DECD to compute a municipality's share of affordable units based on its housing stock as of the last U.S. Census instead of its current stock.

Affordable Units. The act increased, from 25% to 30%, the share of units developers had to agree to make affordable in order to use the procedure and lengthened, from 30 to 40 years, the time during which they had to remain affordable. It also imposed new conditions limiting the rent that developers could charge for the affordable units.

Assessment by Local Commissions. The act gave local land use commissions more tools to assess proposed affordable housing developments. It required developers to submit plans showing how they intended to comply with the law's affordability requirements. The DECD commissioner had to adopt regulations delineating some of the elements the plans had to contain. The act allowed commissions to require developers to submit conceptual site plans if they needed a zone change to build an affordable housing development.

Resubmittal. The act changed several procedural requirements for acting on an application after a developer modified and resubmitted it to the local commission.

Court Evaluation. The act required the court to evaluate the evidence in the record and decide for itself whether it showed that the decision was necessary to protect public interests, that those interests outweighed the need for affordable housing, and that the proposed development could not be changed in a way that did not harm the interests. Under prior law, the court only had to determine if there was enough evidence for the commission to have reached the decision it did.

Land Use Commissions. The act gave land use commissions acting on an affordable housing development the same power to enforce the conditions for using the procedure that zoning commissions had to enforce their orders and regulations.

Moratoria. The act changed the time period and conditions under which municipalities could obtain a moratorium on affordable housing appeals. Under prior law, municipalities could obtain a one-time, one-year moratorium on affordable housing appeals if they participated in certain state housing programs and created units that equaled 1% of their current housing stock. Instead, the act allowed municipalities to obtain a three-year moratorium each time the total number of certain types of housing units equaled 2% of the housing stock as of the last census, or 75 unit-equivalent points, whichever was greater. It specified the types of units that counted toward a moratorium (e.g. those that became affordable July 1, 1990 and were constructed with government funds) and assigned points to them. DECD had to adopt regulations specifying how municipalities could obtain a moratorium and get a certification if they qualified for one.

PA 02-87

Moratoria. The act made several additional changes to the moratorium. Specifically, it extended, from three to four years, the length of an appeals procedure moratorium a municipality could obtain. It also extended, by one year, any moratorium in effect on the act's effective date (October 1, 2002).

Affordable Units. The act added deed-restricted mobile manufactured homes and accessory (“in-law”) apartments to the list of affordable housing units that counted toward the 10% threshold. The deed restriction had to be recorded on the land record and, for at least 10 years, require the units to be sold or rented at prices that allowed low- and moderate-income individuals or families to pay no more than 30% of their income for them.

3. SINCE PASSING PA 02-87, HAS THE GENERAL ASSEMBLY CONSIDERED ANY BILLS THAT WOULD HAVE MADE SUBSTANTIVE CHANGES TO CGS 8-30g?

The General Assembly considered at least 84 bills between 2003 and 2012 that would have made substantive changes to CGS 8-30g. Of these, 14 were raised or drafted by the committee of origin. The remaining were proposed bills and were not fully drafted. Table 1 lists the 14 drafted bills, summarizes their purpose, shows the committee of origin and sponsor, if any, and last action.

Table 1: CGS 8-30g Raised and Committee Bills: 2003 to 2012

Year

Bill

Purpose

Committee of Origin/Sponsor(s)

Last action

2003

6504

To count multi-family residences of four or fewer units as affordable housing units.

Housing Comm.

Public Hearing 03/06

2003

6506

To change the cutoff for use of the appeals procedure to 5% affordable housing stock (down from 10%).

Housing Comm.

Public Hearing 03/06

2003

992

To repeal the affordable housing appeals procedure.

Housing Comm.

Public Hearing 03/06

2003

993

To limit the applicability of the affordable housing appeals procedure to applications for housing projects of less than one hundred dwelling units.

Housing Comm.; Sen. Freedman

Public Hearing 03/06

2003

994

To add requirements to the application for an affordable housing development (height, density, local impact, fees).

Housing Comm.

Public Hearing 03/06

2004

5378

To increase the portion of affordable units in an affordable housing development that is a set-aside development (from 30% to 35%).

Housing Comm.

Public Hearing 02/24

2004

5379

To guarantee minorities access to affordable housing by requiring developers to publicize availability.

Housing Comm.

Public Hearing 02/24

2004

5381

To provide incentives to homeowners to create new affordable external accessory apartments and to maintain the continued affordability of new and existing external accessory apartments.

Housing Comm.; Rep. Bielawa

Public Hearing 02/24

2004

5382

To increase the period, from 40 years to 45 years, during which affordable units in a set-aside development are required to remain affordable.

Housing Comm.; Rep. Hyslop

Public Hearing 02/24

2004

5385

To give people with physical or mental disabilities who meet the income requirements for set-aside developments first priority in the sale or rental of set-aside dwelling units.

Housing Comm.

Public Hearing 02/24

2005

6428

To exclude real property that is part of a regional fair housing compact from the affordable housing appeals procedure.

Housing Comm.; Rep. Urban

Language removed by Housing Comm. in Joint Favorable Substitute Change of Reference to Planning and Development

2006

672

To clarify the requirements for the record compiled before a commission, and to clarify matters that a commission may consider in denying an affordable housing application in order to protect a substantial public interest.

Judiciary Comm.

Public Hearing 03/24

2010

5240

To discontinue the practice of having affordable housing development take precedence over the protection of the environment and natural resources.

Enviro. Comm.

Public Hearing 03/01

2011

5479

To amend the criteria a judge must consider in an appeal of a denial of an affordable housing application (adds: proposed development located on unbuildable lot).

Plan and Dev. Comm.; Rep. Reynolds; Sen. Prague

Referred to Joint Committee on Planning and Development

4. WHICH MUNICIPALITIES ARE SUBJECT TO APPEALS PROCESS IN CGS 8-30g AND WHICH MUNICIPALITIES HAVE A FOUR YEAR MORATORIUM?

In 2011—the latest year for which DECD's list is available—30 municipalities were exempt from the appeals procedure because at least 10% of their housing stock was affordable. The remaining 139 municipalities were subject to the appeals procedure (see Attachment 1). The amount of affordable housing in exempt municipalities ranged from 10.03% (Danbury) to 35.57% (Hartford).

Currently, the municipality of Darien has a four year moratorium that expires in October 2014. In the past, Berlin and Trumbull have been granted moratoria. CGS 8-30g authorizes a four-year moratorium in municipalities where the total number of affordable housing units added since the last 10-year census equals 2% of its housing stock at that time, or 75 unit-equivalent points, whichever is greater. Restricted income units built after 1990, as well as units subjected to deed restrictions after 1990, are eligible to be counted toward the 2% or 75-points. DECD awards points based on the type of unit and income restriction.

5. DO OTHER STATES HAVE AN APPEALS PROCEDURE LIKE THAT IN CGS 8-30g AND IF SO, DOES THE BURDEN OF PROOF REST WITH THE DEVELOPER OR MUNICIPALITY?

We found five other states (California, Illinois, Massachusetts, New Jersey, and Rhode Island) that have established special procedures under which developers can appeal decisions by local planning or zoning commissions denying affordable housing development applications or approving them with costly conditions. In California, the burden of proof lies with the municipality. In Massachusetts, the burden lies with the developer to establish a prima facie case, but then shifts to the municipality. In the three remaining states, it lies with the developer. Like Connecticut, all five states exempt municipalities meeting certain criteria from the procedure.

Table 2 lists these states and provides information on their procedures, including how municipalities become exempt, where the burden of proof lies, and the entity to which decisions are appealed.

Table 2: Appeals Procedures in Other States

State

Trigger for Municipal Exemption

Entity Bearing Burden of Proof

Appeals Entity and Powers

Statutory Citation

Connecticut

10% of housing stock is affordable

Municipality

Trial court can remand, overrule, or modify local decision

Conn. Gen. Stat. 8-30g(g)

Massachusetts

10% of housing stock is affordable

Lies with builder or developer until prima facie case made, then burden shifts to municipality

State Housing Appeals Committee can force local commission to grant a permit or modify conditions on the development

760 Mass. Code Regs. 56.07

Rhode Island

10% of housing stock is affordable

Builder or developer

State Housing Appeals Board can overrule or modify local decision

R.I. Gen. Laws 45-53-6

Illinois

10% of housing stock is affordable or population under 1,000

Builder or developer

State Housing Appeals Board can overrule or modify local decision

310 Ill. Comp. Stat. 67/15, 67/30

New Jersey

Submitted fair share plan, detailing how affordable housing development will be encouraged, to Council on Affordable Housing

Builder or developer

Trial court or state Council on Affordable Housing can invalidate or redraft a municipal ordinance, or require a specific site be rezoned

N.J. Rev. Stat. 52:27D-301 et seq.

California

Land rezoned in compliance with required housing element

Municipality

Trial court can force municipality to rezone land to accommodate affordable housing development

Cal. Gov. Code 65583(g)(3)

6. WHAT OTHER STRATEGIES DO STATES USE TO ENCOURAGE AFFORDABLE HOUSING DEVELOPMENT?

According to a 2012 report by Rachel Bratt of Tufts University, states take a variety of approaches to encourage affordable housing development. The report describes the following four strategies:

1. general municipal goal with state zoning override,

2. mandatory inclusionary zoning,

3. fair share mandates, and

4. mandated housing element as part of planning requirement.

General Municipal Goal with State Zoning Override

Under this strategy, state law sets an affordable housing goal that all municipalities should meet, often 10% of their housing stock. If a commission in a municipality falling under the threshold denies or unduly conditions a proposed affordable housing project, the builder or developer can appeal to a state commission or trial court. The commission or court may overturn or modify a local commission's decision. These laws seek to prevent local commissions from rejecting or unduly conditioning affordable housing projects that are consistent with local needs. Illinois, Massachusetts, and Rhode Island use this zoning strategy.

Mandatory Inclusionary Zoning

Mandatory inclusionary zoning promotes mixed-income developments. Under this strategy, state or local law requires developers and builders to reserve a certain share of housing units for lower income households if a construction project is of a certain size. Builders and developers bear the cost of producing affordable housing, but in exchange, local governments often offer incentives, such as tax abatements, expedited permitting, or density bonuses. States using this type of zoning include California, Florida, Massachusetts, New Jersey, New York, Oregon, Rhode Island, and Washington.

Fair Share Mandates

The goal of a fair share mandate is to disperse affordable housing across a state, thereby reducing the number of exclusionary housing patterns. Under this strategy, a state agency is responsible for assessing the state's current and future housing demand. The agency then distributes a share of the “need” to each state region. Each region, working with local governments, must implement a plan aimed at meeting regional affordable housing needs. These plans include strategies for removing removing regulatory barriers to the construction of the region's “fair share” of affordable housing. California and New Jersey use this type of mandate.

Mandated Housing Elements

Housing elements are part of city-wide development plans that are updated regularly. Housing elements do not require municipalities to build additional housing. Instead, they require municipalities to identify future housing needs at all income levels and specify how the needs will be met. To complete a housing element, a municipality must identify developable land and, if scarce, outline how regulatory barriers will be removed. Barriers commonly include density limits, lot size requirements, and zones prohibiting housing. Though half of the states require housing elements as part of municipal development plans, only California, Florida, New Jersey, Oregon, and Washington have vigorous mandates.

JSB:ro

Attachment 1