The state Department of Housing last week filed its formal answer to a lawsuit from the town of New Canaan, denying claims that it “aggrieved” the municipality last year when it issued a “declaratory ruling” after denying an application for relief from a widely discussed affordable housing law.
The town claimed in a complaint filed last summer that the DOH misinterpreted the law known by its statute number, 8-30g, when the agency bolstered its reasoning for an earlier denial of the town’s application for a four-year “moratorium.”
Specifically, the town argued, the state erred in failing to credit New Canaan for “excess” affordable housing units that had been completed prior to the issuance of the town’s last moratorium (in 2017).
“In other words, if a municipality constructs a substantial number of affordable housing units, well in excess of the number of units that would be required for a moratorium under § 8-30g, and then the municipality applies for and receives a moratorium, none of the ‘excess’ or ‘surplus’ newly constructed affordable housing can ever be counted towards a later moratorium,” Nick Bamonte, a lawyer with the town attorney’s firm, said in the complaint.
In the Jan. 19 answer, Assistant Attorney General Vianca T. Malick denied the town’s claims that the DOH’s declaratory ruling prejudiced the rights of New Canaan, violated state law, abused its power or effectively discouraged the construction of affordable housing units, as the complaint had asserted.
Under the state law known by its statute number, 8-30g, in towns where less than 10% of all housing stock qualifies as affordable (New Canaan is at 2.94%), developers who propose projects where a certain number of units are set aside to rent at affordable rates may appeal to the state after a local P&Z Commission denies their applications. New Canaan since its last moratorium lapsed in July 2021 has received three such applications, at Weed and Elm Streets (120 units, above Kimberly Place), Main Street (20 units) and Hill Street (93 units). P&Z denied all of them. Those applications are now under appeal in state Superior Court, as is a separate appeal regarding the New Canaan Historic District Commission’s denial of a Certificate of Appropriateness for the Main Street project.
The town is now re-applying for a new moratorium while the lawsuit regarding the DOH declaratory ruling makes its way through the court system.
During a public Planning & Zoning Commission hearing on the new application, held Wednesday night at Town Hall and via videoconference, P&Z Chair Dan Radman asked Bamonte whether the pending litigation will affect the new application for a moratorium.
“What’s the timing on that one, and what is the outlook on that one?” Radman said.
Bamonte responded, “This moratorium application does not affect us.”
Bamonte then laid out a probable timeline for next steps in the moratorium application. The town could conceivably file the application this week, even Thursday.
The DOH within one to two weeks will then acknowledge receipt, ensure the application is complete and has 90 days, by statute, to render a decision, he said.
“This is not going to be a heavy lift to finalize and to submit to DOH,” Bamonte said. “And I expect we should get an answer within three months, if not sooner than that.”
With respect to the separate declaratory ruling lawsuit, Bamonte said a legal brief must be filed on behalf of the town by March 15, with opposition briefs from the state DOH and successful intervenors in the case (the proposed 8-30g projects’ developers) due April 19. The town will be able to respond to those arguments in yet another brief that will be due May 17, Bamonte said.
The attorney then said it was “shocking” to New Canaan that its moratorium application was denied in 2022 because the town of Brookfield—also in Fairfield County—had included “old units” just as New Canaan had but that the state extended that town’s moratorium.
“Brookfield and New Canaan are similar,” Bamonte said. “Brookfield already has a moratorium, New Canaan already had a moratorium. DOH is saying to New Canaan, as of October, ‘Well, we’re not going to let you use these older units that were CO’d prior to when you got your first moratorium.’ That was the justification, because they think that’s what 8-30g says. But months prior to that, DOH found the exact opposite with Brookfield, because Brookfield’s application did include those front-loaded units. They did include additional units that were built prior to Brookfield receiving its first moratorium.”
Town resident Jeff Stein, who has helped organize opponents to the Hill Street proposal—and was one of the only hearing attendees to address P&Z—said, “It’s a real shame that the prior Board of Selectmen did not deal with this proactively, because if it literally was just a matter of months with DOH changing their position between Brookfield and us. If we had been prepared to submit a moratorium when the last one expired, we probably would have gotten the same treatment as Brookfield and we wouldn’t be spending money on an appeal in Hartford now.”
Stein said he was “very glad” that a local Affordable Housing Committee “that will be looking at this and proactively dealing with this issue going forward” finally has been established.
“But it’s a shame that we were not in that position previously,” he said.
The hearing opened with a presentation from Carey that summarized 8-30g and milestone dates in the moratorium process. (One date left off of the presentation was July 17, 2023, when the town—under the former first selectman—lost its appeal of the prior moratorium application denial.)
First Selectman Dionna Carlson thanked Carey, calling her a “rock star,” as well as Bamonte, “for all their assistance in helping us assemble the application.”
“One thing I forgot to mention when I made my introductory remarks is both myself and Selectman [Amy Murphy] Carroll in our race this fall, both of us in that time period mentioned to the public that we would be pursuing a moratorium if elected,” Carlson said. “That was part of our campaign.”