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.]
Hi Mike – part of the issue on April 25th was the developer and another member of his development team and the survey crew arrived unannounced accompanied by a New Canaan Police Officer – apparently hired by the developers team. To say this was an unsettling situation would be an understatement – and yes the survey stakes remain in the ground on our property. I believe the use of New Canaan Police as private contractors regarding this issue has now been sorted out by the Chief of Police.
I provided a longer version email summary of those events to town bodies and the CT States Attorney, which I expect you can FOIA.
Thanks Giacomo. All of your good points are in the police report, yes. I would have included them if I were writing a story just about its contents, but I don’t think the April 25 incident merits standalone coverage. If readers want, I’m happy to upload that police report to this story.
If you upload the police report please upload my email of April 30, 2023 to the Police Commission and various other bodies which is possible to access via FOIA. That email provides much more context and I believe more accuracy about what has taken place with regards to ‘visitors’ to our property both before the event sited in this article as well as subsequent events – including later the same day with one of the individuals associated with the morning events. This issue regarding the easement remains an ongoing one and anyone in town who may have easements associated with their properties should follow the case closely.
Giacomo if you want me to see your email, could you please just send it to me?
Hi Mike – Sorry as this is a police / legal matter I do not believe I should distribute my email w/ attachment separately – I believe it is however FOIA’able if that is a word.
Giacomo, although I’d be surprised if this were an active police matter, the first selectman may have opened the town to liability by wearing the neighbor and first selectman hats after saying he wouldn’t, so I understand this could be yet another developing lawsuit for New Canaan. It’s almost as if lawyers cause more legal problems than the rest of us. Anyway I’m not hearing an outcry for the incident report so we’ll just leave this alone for now. Thanks.
Giacomo- in addition to NCPD officer hired by Karp to accompany the crew, wasn’t said officer off duty but nonetheless in NCPD uniform and armed which would seem completely in appropriate and unsettling, if correct?
How could an officer be both working and off-duty at the same time, Robert? What you are saying makes no sense. This thread is not yet closed but for other readers who wish to comment, let’s please keep this factual and on-the-rails. Thank you.
I think Robert’s point may be that if an officer is off duty but working on a moonlighting project, that perhaps he/she should be unarmed and not in uniform. The uniform might imply he/she were on police business and not acting as a private contractor. The town police may have protocols around that. Maybe the police would comment to the extent they have protocols.
Thank you, Erik. Please see my response to Robert.
The officer wasn’t on duty. He was hired by Karp to intimidate the residents and act like he had authority in the easement manners . He does not. Check it out Mike and feel free to report other facts beside what Karp feeds u.
Greg, this article cites a New Canaan Police Department case report. Arnold Karp wasn’t interviewed. Please consider taking a tip from your fellow neighborhood residents in this thread on how to compose yourself in the comments. You may also consider keeping these collusion/conspiracy theories to yourself—it honestly detracts from the points you are trying to make here. Thank you.
What are the collusion-conspiracy theories you ate referring too? I state facts not propaganda or conspiracies. Anyway Keep up the good work Mike. New Canaan is lucky to have you.
OK thanks Greg. I’m happy to let it go.
The officer was moonlighting for Karp while off duty for NCPD yet he was wearing his uniform. Karp in fact sent me an email confirming this. I’m shocked it’s legal.
Thank you, Robert. I am asking police for clarification on this. My own sense is that when police are hired for extra-duty jobs such as this, or other similar work, such as when a resident has a large event at their home and traffic control is required, that the officers are not only expected but required to wear their regular uniforms. It would be more shocking to me if a citizen could hire an officer in an “undercover” type role. In this case, the officer hired by Arnold Karp is referred to in the sergeant’s incident report multiple times, and the context shows that the officer is working with the additional arriving officers just as anyone would expect them to on a regular shift. I’ll add that when an officer is hired for an extra-duty job, he or she is acting in their capacity as an officer of the town of New Canaan—the citizen who requests an officer pays the town, not the officer directly, and payment is processed through the finance department (it’s not “moonlighting,” it’s police work). I will upload the incident report to the article and put a link to it at the end of the story. And I’ll circle back to this thread when I hear back from police. Thanks again.
Now that you have uploaded the incident report please upload my email to the Police Commission so residents of the town can understand the totality of the situation (and for the record nobody from the Police Commission has reached out to me). I am sure the Police Department can process your FOIA request rather quickly (or at least much quicker than I could get a copy of the police report which I had to FOIA) or you can ask the BoS, Water Pollution Control Board or the T/C members for a copy.
As mentioned before, we continue to have stakes in our lawn – we have no construction permitted at 751 Weed Street and we have according to town employees multiple statements by the developer that their is no mechanical issue with the easement that requires maintenance or repair or any other disturbance. On top of that anybody driving by 751 Weed can look in the driveway and see the intentional state of disrepair most visibly with the Belgian blocks removed from the driveway (yes they came out manually one by one over a matter of the last couple of weeks with a ‘clink clink’ noise about every 2-3 minutes) which will cause water run off to neighbors on top of ‘no mow May.’
OK Giacomo, I will FOI your email. It typically is a two- to four-week turnaround time, though it would be faster if you sent it to the Board of Selectmen. Can you please tell me if the selectmen were cc’d on it? Thanks.
All elected bodies in New Canaan and people representing New Canaan in Hartford have this as well as the unelected Water Pollution Control Board and town planner. Make sure you discuss with the town lawyer / police commission before you post to make sure they have redacted anything that needs to be.
Hi everyone. Following up on my comments above, I did hear back from the public information officer of the New Canaan Police Department regarding extra-duty jobs. Here is what I received via email:
“Good Morning Mike. Yes, while working extra-duty jobs officers conduct is governed by the policies, procedures and rules and regulations of the New Canaan Police Department. Officers are required to wear their uniform and equipment, sidearm, portable radio, etc. There are times when officers are requested to wear civilian clothes. For example; store security detail. This is on rare occasion.”
Also, I will note that I have added a link at the bottom of the story to Giacomo Landi’s April 30 email to town officials, as requested.
Thank you.
Thanks for posting the letter Mike – I have already gotten comments from people surprised at the totality of what we are dealing with over here.
Does the state’s rejection of the moratorium mean that nothing was gained by the town in getting credit for affordable housing by the Canaan Parish project?