Land Use Attorney: New Canaan’s ‘Moratorium’ Application Is Incomplete and Non-Approvable

New Canaan’s widely anticipated application for four years of relief from an affordable housing law—which town officials had said would be submitted to the state April 28—is incomplete and won’t be approved as written, according to a memo from a prominent land use attorney.

The town’s voluminous application for a “moratorium” under state law 8-30g is “unapproveable” and “should not be submitted to the Connecticut Department of Housing, for at least two reasons,” according to a 10-page memo filed with the town planner by attorney Timothy Hollister of Hartford-based Hinckley Allen.

First, the town has not obtained the “housing unit equivalent” or “HUE” points needed for the moratorium because it hasn’t obtained a permanent Certificate of Occupancy, Hollister said in his memo (available here, minus attachments).

The memo was filed with Town Planner Lynn Brooks Avni as part of a required 20-day public comment period, whose deadline was extended from April 28 to 29 “[b]ased on a delay in Town offices in making a copy of the application available,” Hollister said.

“Every town that qualifies for a moratorium under the rules and regulations should be granted one, but this application, at this time, is well short,” he said in the memo, obtained by NewCanaanite.com.

The second major reason that the application falls short is because it “does not contain evidence of annual, ongoing compliance with maximum household income and rent requirements,” as required by state law, “does not address the demolition of units at Millport and Canaan Parish,” and “does not explain the justification for using ‘holdover’ points,” Hollister said.

“Finally, the application copy provided to us on April 19 contains several other deficiencies that must be corrected before submission to DOH,” he said in the memo.

Hollister is the attorney representing the owner of 751 Weed St., where a 102-unit housing complex—with 31 apartments to be rented as affordable units—is planned. 

Even if the Planning & Zoning Commission denies the application, state law allows for an appeal process for towns like New Canaan where less than 10% of all housing stock qualifies as “affordable”—a threshold municipal officials expect never to achieve— effectively allowing developers to skirt local P&Z regulations when they put in for projects where at least 30% of all units will be rented at affordable rates.

The town had secured four years of relief from such applications by creating a sufficient number of affordable units with the denser redevelopment of the complex at Mill Pond in 2017, and had hoped to chain a second “moratorium” from the state law by similarly redeveloping the Canaan Parish property at Route 123 and Lakeview Avenue. Yet the Canaan Parish project was delayed in early-2019 by financing problems, and then again by the pandemic. 

Many in New Canaan have criticized the town for what they’ve described as a “lapse” in the planned chain of moratoria, calling for an explanation of or investigation into what happened. Others, such as Town Council member Penny Young, have said such probes are misguided. “I can assure you Town leadership and town hall staff are committed to protecting the welfare of our citizenry and do not deserve harsh speculation” of incompetence or neglect, Young wrote in a comment on this site. (The Town Council is not charged with developing or overseeing affordable housing in New Canaan.)

Tucker Murphy, administrative officer in First Selectman Kevin Moynihan’s office, said during an April 19 Board of Selectmen meeting that the town expected to file the application for a new moratorium April 28. Once received, the state Department of Housing will have up to 90 days to make a decision the application.

It’s unclear whether the application already has been sent to Hartford, whether Hollister’s comments prompted the town to hold off and, if so, how long it will delay the filing. It’s also unclear whether Hollister is calling for the town to finish the second phase of the redevelopment project at Canaan Parish prior to filing the application. (Last October marked completion of phase one.)

Brooks Avni confirmed that Hollister’s letter had been received at Town Hall and said it may be requested via public records request.

In it, regarding the CO status of Canaan Parish, Hollister said, “In contrast to the units at Millport, for which individual, ‘permanent’ certificates of occupancy are apparently provided in the application, the Canaan Parish points are based on an October 23, 2021 letter [his emphasis] from Building Official Platz stating that ‘the units’ in Building 1 have been inspected and deemed ‘in substantial compliance with the Connecticut State Building Code’ and ‘the building in its entirety is approved for immediate use and occupancy.’ ”

Though “a temporary CO may be issued for units (for example, in a phased development) if occupancy will be safe,” Hollister said, “a permanent CO may be issued only upon completion of the development.”

“The plain and simple fact is that Canaan Parish, as of the date of this letter, is still under construction,” he said in the memo. “Those residing there live at an active construction site, with limited emergency access, and according to the building’s management, are living with dust, noise, and vibration.”

Hollister added that “[a]ll of this raises a substantial question about the Town Attorney’s April 5, 2022 opinion letter, contained in the application, which inaccurately states that ‘Certificates of Occupancy’ for the units ‘were issued in 2021.’ ”

The town’s claim of points without a permanent certificate of occupancy violates state law and regulations, an opinion of the Connecticut Attorney General, New Canaan’s own regulations and “case law regarding certificates of occupancy,” he said.

Further, Hollister said in the memo, “evidence of annual, continuing compliance with the maximum income and rent requirements of an approved affordability plan should not be a surprise, as the Town’s Attorneys were directly involved in the litigation of this issue in the Town of Westport during 2019-2021,” refer to the law firm of Berchem Moses PC.

“That case was settled, but why New Canaan’s application does not contain such evidence is inexplicable,” Hollister said.

Specifically, under state law and each development’s “Affordability Plan,” an annual report—detailing the collection, evaluation and compliance with maximum household income and maximum rent requirements—is to be filed by Jan. 31 of each year, he said.

“For Millport, for 2017-2021, the application contains no such documentation,” Hollister said. “All that is included in the application are letters dated September 2018 and 2020 from a company called Spectrum, which letters appear to be reports in connection with the federal Low Income Housing Tax Credit program and IRS requirement to ensure that the development is compliant with federal financing rules. However, the letters do not address compliance with the Affordability Plan for Millport, and they do not at all cover 2020 or 2021 (the September 2020 letter covers 2018 and 2019).”

He added, “Providing copies of annual, statutorily required compliance reports should be a simple matter of inserting documents, already received, into the application, making their omission both inexplicable and suspicious.”

There are other, clerical problems with the town’s application, too, Hollister said, such as unsigned documents, Post-It notes and handwriting on several pages and failure to number pages and provide subject matter tabs.

Hollister’s comments on the application come as the town reviews and submits a state-required plan regarding affordable housing development in New Canaan. The Planning & Zoning Commission discussed the draft plan during its April 26 meeting. There, P&Z members spoke in favor of several recommendations in the plan, including appointment of a standing committee on affordable housing. They noted that many residents who had attended a public session regarding the plan earlier in the week were frustrated by a perceived lack of response from those who drew it up, and that many in town appear not to understand the state’s affordable housing law and its requirements.