Moynihan: Town Cannot Apply for Affordable Housing Moratorium As Planned

After asserting for several weeks that the town was close to filing, New Canaan’s highest elected official said Tuesday that the municipality cannot apply at this time for four years of relief from a widely discussed affordable housing statute.

The town did prepare its application for a four-year “moratorium” from a state law known by its statute number, 8-30g. In towns where less than 10% of all housing stock qualifies as “affordable,” under the state’s definition, the law effectively allows developers to skirt local planning decisions in projects that set aside a certain percentage of units at below-market rates.

The town had qualified for one such moratorium in 2017, with the denser redevelopment of New Canaan Housing Authority-owned apartments Millport Avenue, and hoped to qualify for another through the redevelopment of the Canaan Parish complex at Lakeview Avenue and Route 123, which was partially completed last October.

Yet during a required public comment period on the new moratorium application, a prominent land use attorney—Tim Hollister, from a firm representing a local developer in two 8-30g applications, at Weed and Elm Streets, and on Main Street—said the town’s application was incomplete and would not be approved.

Part of the problem with the application, Hollister said, was that the town has not obtained the “housing unit equivalent” or “HUE” points needed for the moratorium. It also failed to address the demolition of units at Millport and Canaan Paris, and failed to explain how it was using “holdover” HUE points in its calculation. 

First Selectman Kevin Moynihan said at first that Hollister’s comments had delayed the town’s filing. Yet during this week’s regular Board of Selectmen meeting, Moynihan said that, in fact, the town would not be able to apply for its next moratorium until the Canaan Parish project was complete. The phase that remains undone—building a 40-unit structure and obtaining a Certificate of Occupancy for it—won’t be finished until at least November, Moynihan said.

After consulting with the state, town officials have “determined that the Town does not qualify for a moratorium at this time,” Moynihan said during the meeting, reading out from a statement (printed in full below).

“The Town does not currently have enough affordable housing ‘points’ to qualify for a moratorium,” Moynihan said. 

He provided two reasons for that. First, Moynihan said, there have been COVID-related delays such as Eversouce gas getting hooked up to the complex at Canaan Parish. And second, the town had been unclear on just how the state Department of Housing—the agency that receives and reviews the moratorium application—was calculating the HUE points.

Moynihan failed to mention that the Housing Authority had run into financing difficulties with the project in April 2019, nearly a full year prior to the pandemic. 

Asked about the newly opened 8-30g window at the time the first phase of Canaan Parish project as finished, Housing Authority Chair Scott Hobbs told NewCanaanite.com, “It’s really a shame on the part of Connecticut, where the project was initially delayed for, I believe, around six months because of Connecticut budget issues and the need to get allocations from the affordable housing tax credits, and then a additional roughly four to six months due to COVID.”

During the selectmen meeting, Moynihan focused, in part, on Hollister himself and the state’s process for moratoriums application. 

“It’s kind of unusual the way the process works,” he said. “You file an application and then an attorney has to write an opinion certifying that you comply. That’s kind of unusual in our experience. Usually an applicant applies and the body, whether state or federal has to decide whether, on the facts, whether you comply.”

Since the town last secured its own moratorium in 2017, litigation about a similar effort in Westport (in 2019) that involved Hollister also led a change in how the statute is interpreted, Moynihan said.

“It appears that the rules changed with respect to deducting units that were formerly affordable,” he said. “In our case, our strategy was to demolish units that had become obsolete and replace [them]. So there has been a bit of disagreement over this whole thing. Obviously the people who put the strategy in place do not agree. But at the end of the day, the rules are the rules that the state decides to follow, and if they change the rules, we have to follow the rules.”

He later added that, in light of Hollister’s comments on the town’s application, there has been “little agreement” even among lawyers in the town attorney’s office, which “came as a great surprise” to Moynihan. 

Still in the end it didn’t matter whether those lawyers agreed with each other, Moynihan said, because “the fact of the matter is we now have definitive confirmation from the Department Housing as to what they’re going to apply when they receive our application.”

“The town attorney has to write an opinion/certification that we comply,” Moynihan said. “If they cannot do that we can’t file.”

The comments came as the selectmen prepared to approve a state-required affordable housing plan developed by a committee of the town. Moynihan and Selectmen Kathleen Corbet and Nick Williams voted 3-0 in favor it. 

Corbet did raise several questions about the plan prior to the vote, though Moynihan noted that the public comment period on it had ended. At one point Corbet pointed to part of the plan that calls for revision of the New Canaan Zoning Regulations “to incentivize the creation of senior, special needs and workforce housing” and “evaluating the efficacy of eliminating or modifying square footage minimums.” 

“Is this underway?” Corbet asked.

Town Planner Lynn Brooks Avni responded, “No, this was one of the recommendations that the town or subsequent committee should consider considering.”

Williams took aim at the state law itself and indicated that Gov. Ned Lamont could have granted New Canaan relief from 830-g moratorium delays associated with the COVID-19 pandemic. 

When Moynihan said that “Ned Lamont’s Greenwich” has 11 affordable housing applications, Brooks Avni said the number in the governor’s hometown is up to 14 or 15.

“So you’re going to see the ‘urbanization’ of downtown Greenwich like no other,” Moynihan said. “Seven-story buildings in Greenwich.”

Even if New Canaan does successfully secure another four-year moratorium, it’s unclear how the town will achieve its next one, Moynihan said.

“We have a lot of work to do to make another project that will qualify for another moratorium in four year’s time,” he said. “You know, I searched in vain to find 2.5 acres for a Police Department, and if you cannot find 2.5 acres for an essential building it’s equally hard to find property in town for affordable housing.”

The town had spent $7,074 in legal fees on the moratorium application through April of this fiscal year, according to a legal bill approved by the selectmen at their May 17 meeting. The town also hired a consultant in December at $120 per hour, plus some expenses, to help draft the moratorium application, for between 50 hours ($6,000 total) and 150 hours ($18,000). It wasn’t immediately clear how much money that consultant has been paid. Town CFO Anne Kelly-Lenz did not respond to a message seeking comment.

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Full text of Moynihan’s statement “Regarding New Canaan’s Section 8-30g Moratorium Application”:

“The Town Attorney’s office, Berchem Moses PC, has been working with Town Planner Lynn Brooks Avni for the past several weeks preparing to file an application with the State Department of Housing (CT-DOH) for an affordable housing moratorium under Section 8-30g.  

“In the course of this review, including receipt of public comments from Attorney Tim Hollister and consultation with CT-DOH, Town Attorney Nick Bamonte and Town Planner Avni determined that the Town does not qualify for a moratorium at this time.  However, the Town will qualify and will file an application for a moratorium once the additional 40 units of the Canaan Parish affordable housing expansion project are completed and occupied, which is estimated to occur in November.

“The Town does not currently have enough affordable housing “points” to qualify for a moratorium because of: 1) delays completing all of the units at Canaan Parish as a result of COVID pandemic and supply chain disruptions—“that refers to Eversource’s gas delays and getting gas hooked up”, and 2) deductions for pre-existing government assisted affordable housing that were demolished because they were obsolete.  The Town did not fully account for these deductions in its initial calculations for the moratorium application due to a lack of clarity in CT-DOH’s affordable housing points calculation methodology, which CT-DOH has now clarified.”