Affordable Housing: State Moves To Dismiss Town’s Lawsuit


Saying the town’s application for relief from an affordable housing law does not amount to a “contested case” under Connecticut law—and therefore their own denial of that application is not appealable—state officials on Friday filed a motion to dismiss the municipal government’s lawsuit against the Department of Housing.

The town applied last July for four years of relief from the state affordable housing law commonly known by its statute number, 8-30g. In towns that cannot meet a threshold whereby 10% of all housing stock qualifies as “affordable,” applicants for housing developments where a certain percentage of units are set aside at affordable rates may appeal to the state after they’re denied by a local Planning & Zoning Commission. 

The town had qualified for a four-year moratorium in 2017, with the denser redevelopment of the New Canaan Housing Authority-owned apartments on Millport Avenue, and hoped to qualify for another through the redevelopment of the Canaan Parish complex at Lakeview Avenue and Route 123. Yet financing difficulties with the project emerged in April 2019, and then the COVID-19 pandemic caused further delays, officials have said

As a result, the window opened for 8-30g applications here in mid-2021. Since February 2022, New Canaan has received three such applications. P&Z has denied two of them.

In October, the DOH denied New Canaan’s new application for a moratorium, denying First Selectman Kevin Moynihan’s suggestion that state officials had led the town to believe that it would be approved.

The town filed a lawsuit in December seeking to overturn the denial. In its complaint, the town alleged that state officials reneged on a promise to count some of the units completed at Millport Apartments toward a future moratorium. Specifically, the town claims that in approving the 2017 moratorium, the state stated that 31 units at Millport Apartments “will be claimed in a future application.”

Yet no part of 8-30g requires the Department of Housing to hold a hearing when towns apply for four years of relief from it, according to the motion to dismiss filed Friday on behalf of the DOH by Connecticut Assistant Attorney General Anthony C. Famiglietti. 

“The statute provides that the Commissioner [of Housing] shall decide the moratorium application based on the written submissions of the applicant and the public comments, if any, submitted during the thirty-day comment period,” Famiglietti said in a memorandum in support of the motion to dismiss.

He continued, “The regulation lists the documents a municipality must submit with its moratorium application and clarifies the procedure it must follow for notice and public comments. The regulation requires a municipality to provide notice in the Connecticut Law Journal of its intent to apply to DOH for a moratorium. The regulation also requires the Town to provide notice that the application shall be available in the municipal clerk’s office for review, and that members of the public may submit comments to the municipality.”

Famiglietti added, citing 8-30g, “If during that public comment period, 25 residents of the municipality file a petition with the municipal clerk requesting a public hearing, then ‘either the municipality’s legislative body or its zoning or planning commission shall hold such a hearing.’ ”

Yet there is “no similar requirement” of the state, he said.

“The lack of a requirement for DOH to hold a hearing is dispositive that its decision on the Town’s application was not a contested case,” Famiglietti said in the memo.

Because it’s not a contested case, Famiglietti said, the DOH’s decision on the application is not appealable, and state Superior Court lacks jurisdiction.

“[T]his Court must dismiss the Town’s complaint for lack of subject matter jurisdiction,” he said in the memo.

The town has until Feb. 24 to file an objection, with replies due March 10 and oral arguments to be heard March 15, according to an order from Judge Ted O’Hanlan.

The town has already spent more than $45,000 in legal fees alone on the moratorium application.

Meanwhile, other agencies within the town government have been working toward longer-term solutions for New Canaan.

The Town Council Bylaws & Ordinances Committee on Jan. 25 voted in favor of recommending a proposed new ordinance to the full legislative body, allowing the town to create an Affordable Housing Committee. The ordinance can be further modified by the Town Council and is subject to review and recommended changes from the town attorney, Committee members said.

8 thoughts on “Affordable Housing: State Moves To Dismiss Town’s Lawsuit

  1. It would be great if the 5 people representing New Canaan in Hartford could write an op-ed to this publication (preferably done jointly) or even better yet hold a public forum (also preferably a joint session) about what they are actually doing (please be very specific) to help the town on this case.
    Irrespective of where residents shake out it on the affordable housing and moratorium issue, it is difficult to understand the position that the CT DOH appears to be taking. Is it really policy for the state to tell a town please build affordable units – your lawyer said to both you and your local planning and zoning board that they would count toward a moratorium by the way – but after you build them at great expense and to high standards throughout the worst pandemic in 100 years and related supply chain issues – sorry those units do not count and perhaps never will?
    Am I missing something in all of this?

    • For those following this thread, the communication from the state in 2017 that Giacomo is referring to can be found on page five of Appendix A (not page six, as the complaint from New Canaan’s rather expensive town attorney’s firm wrongly notes) here.

      Of course, the state’s argument in the motion to dismiss has nothing to do with that letter from the Department of Housing. Unfortunately, it looks like the town might be getting out-lawyered here, and not for the first time. Also not sure that this bodes well for the town’s chances of winning what will be the property owner’s appeals with respect to the three 8-30g projects already filed. Pete Gelderman, a lawyer in the town attorney’s firm, offered little comfort back in October in observing that he and fellow lawyer Ira Bloom “have done a few of these over the years and our experience is just that it is a tough burden.” (That story here.)

      • Hi Mike – I am going back even a bit further to 2015 starting with the Millport (re)development – the lawyer who is presently representing the developer at 751 Weed was representing the New Canaan Housing Authority at the time. The minutes from the P&Z meeting were pretty clear about the moratorium progress that Millport would give to New Canaan – this is even before the Canaan Parish project (where the same lawyer also represented the New Canaan Housing Authority) – here is the link point 3 I could presume this legal assurance provided some of the justification for the town and housing authority to make the investments they did on behalf of the residents and taxpayers of New Canaan and in accordance with the 8-30g legislation.
        At some point I think the community needs an answer about what legally changed since 2015 regarding moratorium calculations – if things changed is this good public policy by the state – and if not what are our elected officials in Hartford doing to help sort out this situation.

  2. I am not a lawyer but what is most maddening to me is that the state (and Mr Karp who has filed as an intervenor in this case for all 3 of his LLC’s) is not even addressing the substance of what the town is arguing. They are merely saying that the court does not have proper jurisdiction to hear the town’s claim and therefore the town’s claim should be dismissed. And if I understand their argument fully the state (and Karp) suggest that not only does this court lack jurisdiction but there is no valid venue for the town to properly contest the ruling on our moratorium application!! So, the state can tell us one thing, do another and there is no place to remedy that!!!! Is it any wonder that citizens lose faith in government! What a load of bolix!

    • That’s true, Jeff, and it’s also worth noting that, regardless of whether the town is successful in its appeal of the moratorium denial, that would not have stopped the three 8-30g applications from coming in, because the last one had lapsed in June 2021.

      • Hi Mike – if the town had applied for its moratorium when Canaan Parish received its initial COA in October 2021 (i.e. when it first could have) and the normal time for processing by the State of CT had passed, the town would have been covered by the moratorium prior to the first 8-30g application of April 2022 (the first iteration of 751 Weed was withdrawn) as well as the 2 subsequent 8-30g applications. Back to the process issue in this article with regards to access to Superior Court for appeal it should be highlighted that that the lawyer for the developer of 751 Weed asserted access to Superior Court on the moratorium issue and as such it is strange the town would not have similar access (page 15 of this link–1-62972889.PDF).

        • But that assumes that the 8-30g applicant was unaware of New Canaan’s situation with respect to the existing moratorium, Giacomo — I don’t think it’s a safe assumption. And I don’t think these applications are simply pulled together in the weeks prior to their filing. Just my opinion.

          • The key issue on this moratorium is that all residents and property owners (not just on or off the sewer) – and real estate brokers most importantly as they are the ones selling the town externally and as such need to advise prospective residents about the actual zoning situation in town – need to understand that since the lapse of the last moratorium (June 2021) zoning rules and permitting processes in New Canaan may not be what they appear on the surface or what you logically might imagine. The longer the State of CT keeps this open through non approval of the towns moratorium request the higher the likelihood you will personally be impacted by this change, just due to the nature of real estate transactions, either your own or one close to you and the passage of time.

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