A prominent Connecticut attorney specializing in housing law last week filed comments with the state that are critical of New Canaan’s recent application for relief from a widely discussed affordable housing law.
Raphael L. Podolsky of New Britain-based Connecticut Legal Services, who served on the first Blue Ribbon Commission on Housing from 1987 to 1989—the panel that drafted the proposal that was adopted in 1989 and codified as Section 8-30g of the Connecticut General Statutes—said New Canaan’s moratorium application has two major shortcomings.
They are the counting of “holdover points” and “the subtraction for demolished affordable housing,” Podolsky wrote in an Aug. 31 letter to Connecticut Department of Housing Commissioner Seila Mosquera-Bruno.
“I believe that New Canaan’s interpretation of the statute on these issues is contrary to the letter of the law and undercuts the underlying purpose of those sections of the statute,” Podolsky wrote in the letter, obtained by NewCanaanite.com. “In effect, it produces a moratorium when the required point minimum has not been achieved. I hope that the Department will reject those interpretations and preserve the integrity of the statute.”
He added, “We urge the Department to protect the integrity of 8-30g’s moratorium provisions. It should not create exceptions to 8-30g by counting pre-moratorium units toward a new moratorium or by failing to set off demolition of housing built as affordable units when such units are demolished to make way for new housing.”
There is much at stake for New Canaan with respect to its application.
First Selectman Kevin Moynihan, after saying in June that New Canaan did not qualify for a moratorium, said in late July that the town had, in fact, filed its application for four years of relief from 8-30g, kickstarting a 90-day statutory review period.
Under 8-30g, in towns where less than 10% of all housing stock qualifies as “affordable,” by the state’s definition, developers can 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. (Part of the application for a moratorium involves demonstrating that a municipality has earned sufficient “housing unit equivalent points,” under the state’s formula — for example, by creating new affordable dwellings.)
Yet the Housing Authority ran into financing difficulties with the Canaan Parish project in April 2019, nearly a full year prior to the pandemic. Then there were COVID-19-related delays, officials have said.
According to Tim Hollister, who represents developer Arnold Karp in an application for an 8-30g project at Weed and Elm Streets, the town has not obtained the “housing unit equivalent” or “HUE” points needed for the moratorium. During a state-mandated comment period prior to submitting the application to the state, Hollister also said that the town’s application fails to address the demolition of units at Millport and Canaan Parish, and failed to explain how it was using “holdover” HUE points in its calculation.
In the wake of Hollister’s comments, Moynihan at first presented that lawyers with the town attorney’s office were declining to certify that the application met the requirements of the state law, then said later that those attorneys were willing to certify it.
Hollister also has filed his objections with the Connecticut Department of Housing.
Podolsky in his own letter to the state agency took aim at the town’s strategy for counting sufficient “points” to qualify for relief, saying 8-30g “simply does not allow the counting of holdover points in order for a town to obtain a moratorium.”
“The statute is clear,” Podolsky wrote in his letter. “C.G.S. 8-30g(L)(3) explicitly authorizes the counting of units constructed during a first moratorium toward a second moratorium. It reads: ‘Eligible units completed after a moratorium has begun may be counted toward establishing eligibility for a subsequent moratorium.’ This is obviously in contrast to units completed before a moratorium has begun. From a legislative drafting perspective, its function is to make clear that the moratorium provision of 8-30g is not limited to a one-time moratorium for each town. Instead, a town can obtain multiple moratoria by continuing to actively develop new 8-30g-compliant affordable housing.” [His emphasis.]
Podolsky also cites New Canaan’s failure, in making its calculations, to subtract for the demolition of government-assisted or deed-restricted housing.
“The statute requires subtraction for units that ‘cease being counted as an affordable housing unit,’ ” Podolsky wrote. “Because demolished (or otherwise discontinued) units are existing units, the test for counting them against moratorium points is necessarily based on their status on the 10% list, not on whether it they would qualify for moratorium points. That is because moratorium points are based on new units, which must meet the current affordability requirements of 8-30g. Demolished units, in contrast, are older affordable units, which will have met affordability standards years before when they were built, i.e., they would have been eligible for the 10% list.”
New Canaan’s interpretation of the statute “is also directly contrary to the purpose of the 8-30g moratorium,” he added. “The goal of the moratorium is to add affordable units to the housing stock. It is not intended to reward a town for demolition of affordable housing. It is certainly not meant to incentivize demolition.”
The town has spent about $8,000 in legal fees already on the moratorium application, according to invoices from the town attorney. The figure does not include fees for a consultant who helped put the application together.