The state last week issued a ruling that bolsters its decision in October to deny the town’s application for four years of relief from a widely discussed affordable housing statute.
The town had pushed back following the Connecticut Department of Housing’s denial of its application for a “moratorium” from the state law known by its statute number, 8-30g. The law allows developers who propose housing projects where at least 30% of units will be rented at affordable rates to get around local Planning & Zoning Commission decisions through an appeal process.
The town had qualified for a four-year moratorium in 2017, with the denser redevelopment of New Canaan Housing Authority-owned apartments Millport Avenue, and hoped to qualify for another one, in part, through the redevelopment of the Canaan Parish complex at Lakeview Avenue and Route 123, which was partially completed in October 2021.
Yet that project was delayed by financing difficulties and the COVID-19 pandemic, officials have said. In the months after the 2017-issued moratorium expired, the town received three such applications, at Weed and Elm Streets (120 units), Main Street (20 units) and Hill Street (93 units).
Last July—more than one year after the 2017-issued moratorium expired—the town applied for another one. In denying that application, the state said that New Canaan didn’t have sufficient “housing unit equivalent” points required.
In November, an attorney representing the town asked the state to reconsider the denial. The following month, the town sued the state over the denial and, separately, filed a Petition for Declaratory Ruling.
At issue is the question of whether 31 affordable housing units at Millport Avenue that had been completed at the time of the 2017 application for a moratorium—but were expressly not “used” by the town as part of securing it—can be “held over” to count toward a new one.
According to the state, the answer is no.
In the 10-page Declaratory Ruling (read in full here), from DOH Commissioner Seila Mosquera-Bruno, the state notes that Section 1-3 of 8-30g states that “[e]ligible units completed after a moratorium has begun may be counted toward establishing eligibility for a subsequent moratorium.”
In other words, Mosquera-Bruno said in the Ruling, the 31 units at Millport that had already been completed at the time of the 2017 moratorium application do not generate “housing unit equivalent” points that count toward a new one.
“One need look no further than the plain meaning of the words in the statute on their face to understand that it means a municipality may count those eligible units completed after a first moratorium is in effect for a subsequent moratorium,” the Declaratory Ruling said. “It specifically does not provide that units completed prior to a first moratorium be counted to establish eligibility for a subsequent moratorium and there is no language to suggest those units should be counted.”
Another section of 8-30 makes it clear that “only points accumulated during a certain timeframe may be considered.”
Specifically, the state law says that “affordable housing appeals procedure shall be applicable to affordable housing applications filed after a moratorium expires, except ‘when sufficient unit-equivalent points have been created within the municipality during one moratorium to qualify for a subsequent moratorium,’ ” Mosquera-Bruno noted.
“While this section addresses the applicability of the affordable housing appeals procedure and not strictly the granting of a moratorium, it makes it clear that the relevant consideration in the context of Section 8-30g overall is the number of affordable units created during, not prior to, the issuance of the first moratorium,” she wrote in the Declaratory Ruling.
The town’s attorney is misinterpreting the state law, Mosquera-Bruno added.
“Rather than consider the plain meaning of the language as [the statute] requires, Petitioner’s interpretation requires one to imagine what the statute would mean if the word ‘only’ had been included, and to draw conclusions based on hypothetical consideration of the meaning of such language,” she wrote. “Petitioner suggests that anything not specifically prohibited by the statute is necessarily permitted. In fact, the opposite is true.”
Meanwhile, the town’s lawsuit against the state Department of Housing is ongoing. In January, the state filed a Motion To Dismiss in that case.
It’s unclear what effect the Declaratory Ruling will have on the active lawsuit or whether it will prompt the judge overseeing the civil action to uphold the state’s Motion To Dismiss.
The three applications for 8-30g affordable housing developments in New Canaan are proceeding as expected, with P&Z denying resubmitted plans filed on behalf of developer Arnold Karp, and an expectation that they’ll be appealed under 8-30g. (Even lawyers from the town attorney’s firm have said it’s difficult for municipalities to win in the 8-30g appeal process.)
Moynihan himself is a neighbor of the proposed development at Weed and Elm Streets. Moynihan has said that, as a neighbor, he is recusing himself from the 8-30g matter. Yet the first selectman recently became directly involved in a property dispute involving Karp. According to a police incident report obtained by NewCanaanite.com through a public records request, on April 25 Karp had a team surveying a sanitary sewer easement east of his property at 751 Weed St. when neighbors complained that their work constituted trespassing.
Police responded to the area after receiving multiple phone calls and emails about the dispute and were talking to Karp when Moynihan appeared, according to the incident report filed by Sgt. Aaron LaTourette.
“At this time Kevin Moynihan walked across the back yard of 339 Elm St to where Karp and I were standing,” according to the police report (read here in full). “Moynihan stated that neither of these homeowners have given permission. I asked Moynihan if he was the property owner of 339 Elm St and he stated that he was not and that he lived across the street and that he was the first selectman. I asked Moynihan if he was a legal representative of the owner of 339 Elm St and he stated that he was not. Moynihan stated that Andrew Livesay, the property owner at 339 Elm St, emailed him and stated that he was objecting to this. I asked Moynihan to wait in the driveway and that I would come speak to him after I spoke to Karp.” (Ultimately, no charges were filed and Moynihan departed while police spoke to some of the neighbors involved.)
Others in town government have taken a rather more measured approach to addressing the affordable housing issue. The Town Council recently adopted an Affordable Housing Committee ordinance and during its May 3 meeting made several amendments to it, including the elimination of a clause making the first selectman an ex-officio member of the appointed body.
[The full incident report from the April 25 dispute can be found here. A letter sent to town officials April 30 by New Canaan resident Giacomo Landi regarding the events of April 25 can be found here.]