Municipal officials are asking the state to reconsider its recent decision to deny the town’s application for four years of relief from an affordable housing law.
The Connecticut Department of Housing in its Oct. 18 denial letter to First Selectman Kevin Moynihan said that New Canaan fell short of the required “housing unit equivalent” points required for the moratorium. The town failed to correctly calculate its points, DOH Commissioner Seila Mosquera-Bruno said in the letter, and as a result is not exempt for a four-year period from the state law known by its statute number, 8-30g. Under it, developers who propose housing projects where at least 30% of units will be rented at affordable rates can get around local Planning & Zoning Commission decisions through an appeals process.
New Canaan since its last moratorium lapsed in July 2021 has received three such applications, at Weed and Elm Streets (120 units), Main Street (20 units) and Hill Street (93 units). P&Z is poised to deny the application at Weed and Elm, and hearings are underway for Main Street, with Hill Street expected to follow shortly.
According to a Nov. 2 petition letter filed on behalf of the town by lawyer Nicholas Bamonte, who works in the town attorney’s firm of Berchem Moses PC, the basis of the state’s denial, prohibiting “consideration of affordable units completed prior to when a moratorium has begun – is fundamentally flawed because the law does not actually say that, nor would a court’s review support the interpretation relied upon by DOH.”
“Moreover, the decision is in clear conflict with DOH’s own past practice and rulings,” Bamonte said in the petition letter.
Under state law, an entity may ask for reconsideration of a decision such as the DOH’s denial on the grounds that “[a]n error of fact or law should be corrected,” among other reasons.
According to the petition letter, “The effective result of this wholly unexpected and never-before-seen rationale for denial is that the Town of New Canaan can never include 31 completed affordable units in a moratorium application to DOH; 31 units that cost tens of millions of dollars to construct after years of planning and construction. These units were built by the New Canaan Housing Authority as part of a 100% affordable development in Town, similar to the vast majority of other affordable housing created in New Canaan that would not have otherwise been constructed due to the high cost of land and the resulting economic disincentive to private developers. The broader impact of the decision signifies an alarming policy shift by DOH contrary to the intent of 8-30g to encourage the ongoing creation of affordable housing. For all these reasons, the Town believes the decision was rendered in error and must be reconsidered by DOH.”
The state Housing Department has 25 days from the filing of the petition to decide whether to reconsider its decision. “The failure of the agency to make that determination within twenty-five days of such filing shall constitute a denial of the petition,” under the law.
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 through the redevelopment of the Canaan Parish complex at Lakeview Avenue and Route 123, which was partially completed last October. Yet financing difficulties with the project emerged in April 2019, nearly a full year prior to the onset of COVID-19 here, and then the pandemic itself caused further delays, officials have said.
According to Bamonte, the state itself had said at the time the first moratorium was granted that 31 of the new affordable units at Millport that weren’t needed to qualify at the time could be used in a future application. But then the state disallowed the inclusion of those very units in issuing its denial, Bamonte said.
“DOH should have approved the Town’s Application because the law does not prohibit consideration of affordable units completed prior to the issuance of a moratorium in future moratorium applications – this is supported not only under the law of statutory interpretation, but also under DOH’s own past practice,” he said in the petition letter.
“The rationale for the decision rendered by DOH on October 18, 2022 denying the Town’s Application is shocking,” the letter said. “Section 8-30g(l)(3) simply does not say what DOH believed it to say, and past practice further reinforces that DOH’s current interpretation is incorrect. Not only does the decision unfairly and arbitrarily prejudice the Town after years of effort, it also signifies an alarming and bizarre policy shift by DOH counter to the ongoing creation of affordable housing, a goal clearly encouraged by § 8-30g. For these reasons, the Town respectfully requests that DOH reconsider the reasons for its denial, reverse its decision and ultimately approve the Town’s Application.”