New Canaan’s legislative body last week called for the town to consider getting a second legal opinion on whether the municipality should move forward now with an application to the state for relief from a widely discussed affordable housing law.
First Selectman Kevin Moynihan said earlier this month that, following discussions with the Connecticut Department of Housing, the town will wait until the second phase of the Canaan Parish is completed to apply for a four-year “moratorium” from the state law known by its statute number, 8-30g. Towns like New Canaan, where less than 10% of all housing stock qualifies as “affordable” under the state’s definition, are susceptible to the 8-30g law. Under it, developers can use an appeal process to effectively skirt local zoning regulations when applying for multi-family housing project where at least 30% of all units are rented at affordable rates.
Moynihan has said that, based on discussions with the state, the town “does not currently have enough affordable housing ‘points’ to qualify for a moratorium.”
Specifically, the town in drawing up its application for relief—allowable under 8-30g for municipalities that create a certain number of new affordable units—had not accounted for “deductions” for pre-existing affordable housing that were demolished as part of a pan to rebuild with higher density.
Even so, “we believe our facts are distinguishable based on the kinds of units that we have,” Moynihan told members of the Town Council at their June 15 meeting, held at Town Hall.
“And we still have some hope they [state Department of Housing officials] may change their position,” he continued. “But we are not going to force a state agency to change their position by litigation.”
Moynihan also noted that in order to submit the moratorium application, a lawyer would need to provide an opinion certifying that it complies with the law. But lawyers with the town attorney’s firm, Berchem Moses PC, have argued against doing so, Moynihan said.
Some Town Council members questioned the town’s strategy, even calling for New Canaan to find a lawyer who may have a different opinion.
“There is a part of me that says, try to get another legal opinion, roll the dice and submit the moratorium application,” Councilman Hilary Ormond said. “That’s not litigation.”
“Otherwise we are just sitting here,” she added. “Now we have almost three affordable housing applications by Arnold Karp, we have two.”
When Moynihan responded, “I don’t think any of those will succeed because they’re not economic. He’s not going to build something that’s not economic,” Ormond said, “Well, they’re there.”
“You are telling us wait until November until Canaan Parish is complete—that’s not acceptable to me when I think there’s another option we should be exploring,” she said.
Councilman Mike Mauro—who, like Ormond, is a lawyer—agreed, saying, “What I am concerned about is relief for the town, as we all are, and making sure that the town is properly protected moving forward.”
“I think that perhaps we should look to find another counsel to take a look—I get it, it’s an extremely niche area of Connecticut law and there’s probably very few attorneys that are knowledgeable in the area. That doesn’t mean that we can’t find somebody to take a look. I think there’s a lot of discontent and very much a large amount concern on behalf of the citizens, especially those in the Weed Street area, saying ‘What can we do? Are we pushing every lever that we can?’ And I’m not specifically targeting any particular project. But it’s just overall in the larger scope of what the town needs to do in coming up with their marshal plan, so to speak, and how we comply with the state statute. It has to be complied with. We have moratorium that we have to be applied but that can’t be our strategy in perpetuity.”
Moynihan disagreed, saying that under 8-30g as written, moratoria were the only relief available to towns like New Canaan, where development is cost-prohibitive due in part to the price of real estate and in part due to the scarcity of parcels of the size needed for such projects. He also said that the Berchem Moses lawyers advising New Canaan are experienced in this area of law.
Much of the discussion focused on attorney Tim Hollister, whose firm is representing Karp in the two 8-30g applications already filed. Hollister had been retained by the New Canaan Housing Authority in the past, Moynihan said, at the time the town prepared to develop the Canaan Parish complex at Route 123 and Lakeview Avenue.
Yet it was also Hollister’s comments on the completed moratorium application that led the town to decide, on the advice of its own lawyers, to put off filing until the Canaan Parish project is done (which involves building a 40-unit structure and obtaining a Certificate of Occupancy for it).
Ormond said that Hollister “has a conflict which I find very problematic and I find his position here extremely problematic.”
Mauro said it “would be a great idea to have a public forum on a large discussion about this issue.”
“I think the town in general would be well served if there were elected officials at least hosting something—a forum or something to that effect—invite them in, yourself, the town attorney, experts, Planning & Zoning, have a larger discussion for the town, for residents,” he said.
Meanwhile, the Planning & Zoning Commission is scheduled to take up the application at 751 Weed St. during a special meeting scheduled for 6 p.m. Wednesday.
On June 7, the town’s Water Pollution Control Authority—a role taken on the Board of Finance—voted unanimously that the proposed development requires an extension to the sewer system. Under Section 8-24 of the Connecticut General Statutes, that means the request is referred to P&Z for a municipal improvement report. P&Z during a special meeting June 16 voted unanimously for a negative report. Hollister argued against the WPCA’s finding during its meeting and again at P&Z. It wasn’t immediately clear what effect, if any, the negative report will have during the expected appeal process under 8-30g, or whether it will be litigated separately.
During the Town Council meeting, Moynihan called 8-30g “a dumb law” that doesn’t work for lower Fairfield County towns such as New Canaan. The discussion then turned political, with officials shilling for their own political party members. It’s a state election year. It wasn’t clear whether the proposed public forum would serve as a tool for similar campaigning.
[Note: This article has been updated with the correct starting time of the June 22 P&Z meeting.]