Town Asks State To Reconsider Denial of Affordable Housing Moratorium Application


Rendering of proposed development at Weed and Elm. Specs by The Eisen Group

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.”

14 thoughts on “Town Asks State To Reconsider Denial of Affordable Housing Moratorium Application

  1. Kevin—So what is the towns plan for affordable housing. Oh, we have no plan so even if granted a moratorium today— there is No plan going forward.
    How’s the town committee on affordable housing coming.

  2. A great and immediate opportunity for bipartisan work between the new (and existing) Legislative team representing New Canaan in Hartford, and the town and its various elected town bodies to come together and hopefully get this moratorium issue over the line with the DOH. The first place to start should be a joint letter from all the legislators representing New Canaan supporting the town on this request. If the case is how the town lawyers have set it out, this really should not be a political decision and no reason not to support the town on this.

  3. Giacomo,
    I couldn’t agree more. As a New Canaan resident and not in my capacity as a Town Councilperson, I just sent this email to our newly elected representatives calling for such a letter:

    Good Morning!

    I’m reaching out to you about New Canaan’s appeal to the CT Department of Housing which requests that our 8-30g moratorium be granted. Here’s are the details:

    I would like to kindly request that a joint bipartisan letter be written to the CT Department of Housing supporting New Canaan’s appeal. Ceci Maher and Keith Denning do not have established state emails yet so it would be great if our incumbents could reach out to them forthwith to invite them to jointly sign this letter. Based on LWV debates and other campaign literature, I believe that local control of zoning was supported by all recently elected candidates.

    Thank you!
    Kim Norton
    Resident of New Canaan

    (This letter is written as a private citizen and not in my capacity as a member of New Canaan’s Town Council)

  4. Stop only focusing on a moratorium and create a plan for affordable housing in New Canaan. A moratorium is a 4 year holding pattern. Isn’t it long past time to create a committee and have a plan.

    • A three step process could look like (all of which could be initiated rather quickly):
      step 1) withdraw without any reservations your three proposed developments in town so that the town and its residents no longer need to focus so much energy and resources on addressing / responding to these proposals.
      step 2) encourage existing and new legislators representing New Canaan and government entities in Hartford to support the town in its moratorium application so everybody can get some breathing room.
      step 3) have a diverse committee (with hopefully new faces and controls on the influence of self interested parties) be put together to start with the existing town affordable housing plan and find out how the identified items can be actioned and in a transparent, equitable and appropriate manner be implemented. Such a committee should be very open and transparent with the public, and be part of the educational process of the overall issue for the community, as well as take into account what is actually feasible within the natural constraints of New Canaan (extent of town that is developed already – natural housing market developments (i.e. how do we protect existing lower priced homes from redevelopment) – existing town infrastructure – available town owned land and total financial sums involved etc.). Hopefully a much improved affordable housing plan will come from this, and action can actually be taken to really make an impact on the genuine affordable housing issue.

  5. Mr. Karp here’s is a proposed plan.
    It is my understanding that when you built the 99 unit Vue, you had zero affordable housing units which means that you put the town behind its quota by 30 units. According to your website, as of today, you have 21 of the 40 multimillion dollar condominiums still available for sale and three of the apartment units available for rent.
    A viable plan could be to convert those 24 available units to affordable housing units. Then, when the next 6 rental units become available you can designate those as affordable housing to make up for the 30 unit shortfall.
    If you were to implement this plan, I think it would go a long way toward demonstrating a genuine commitment to affordable housing in New Canaan.

  6. Attorney Durkin,
    There continues to be a lack of understanding among some regarding the affordable housing math in New Canaan, including that related to the Vue. The Vue added 99 total living units to NC, which works out to moving the town a total of 3 (2.9 actually but you round up) affordable units further away from the 10% goal. Mind you that the 10% figure is a goal, not a requirement. The confusion seems to come when people use the wrong denominator – the new development total as opposed to the total number of NC living units. Keep in mind that during the application process, the Vue team offered affordable units to the town, and that offer was rejected.

    It’s not clear why having 3 applications submitted for developments with a 30% affordable component does not demonstrate a genuine commitment to affordable housing. As opposed to significant town funds being spent on building more affordable housing, here is an opportunity to do so at zero cost to NC tax payers. As a private developer using private funding the 70% market rate units are what pay for the 30% affordable units. You may not be aware that the affordable units rent at rates set by the State of CT (roughly $1,200 – $1,800 per month). If the town would like to fund the building of 100% affordable housing we be happy to be the builder of much needed affordable housing, that helps to provide the diverse housing portfolio that’s been articulated in town documents for decades.

    • While I was not living in New Canaan at the time of the Vue approvals, it is my understanding that the Vue and its 99 units take the place of ~38 apartments that were there before (it is also my understanding that the homes, which were torn down to make way for the Vue, were relatively modest in price by New Canaan standards). As such the net increase in dwelling units in New Canaan is not 99 but fewer, but what has happened is a swap of in essence ~38 ‘naturally occurring affordable units’ even if not so defined by the CT DOH, for 99 (much) higher priced units. I still have not seen any documentation where the town restricted the developers of the Vue from including affordable units within the allowable building size.

  7. The Merritt Apts. were old, leaky, dysfunctional units in great disrepair. The buildings were riddled with lead and asbestos. And they were not “naturally occurring affordable units”, a concept often invoked by some in an attempt to rationalize not building much needed housing.

    As previously articulated, the offer to include affordable units at the Vue occurred at the hearings, not as part of the original plans. That offer was declined by the town.

    • Mr Stone – you and Mr. Karp have repeatedly said the town “rejected” affordable housing at the Vue. This is a grossly misleading statement. For one, you don’t need the town permission to designate units at the view affordable and charge qualifying affordable rents. Secondly, what did Karp and team demand of the town in “exchange” for these affordable units? Permission to build a larger structure at the Vue with more apartments, a larger footprint or additional floors? If you are going to continue to make the statement that you offered to make some units at the Vue qualified affordable housing, perhaps you should include the full context. In the absence of this context, your statements are not accurate.

      • Not misleading at all. We offered, it was rejected (indicating the town didn’t want an affordable component in that development – that was my point). No “demand” for anything in “exchange” was made. In fact through the approval process the approved building was smaller than the original submission. That’s the context, and it’s accurate. Repeating falsehoods doesn’t recreate the truth, however popular such tactics have become in the world today.

        Instead of bemoaning a “lost opportunity” (albeit a much smaller one than perceived by some due to the employment of inaccurate math as previously delineated), perhaps our collective efforts might be better spent focusing on new ways to provide a diverse housing portfolio in town that’s so sorely needed. The Vue, or any development, can’t be everything to everyone. There needs to be a multi-pronged approach.

        • No wonder people people who do not follow the minutia of this issue are confused – it is a full time job keeping track of all this (perhaps that is the point). Thank you Mike and the New Canaanite for helping us do just that :-).

        • From the November 30, 2016 issue of Newcanaanite referring to the Vue:

          “Karp indicated after the October hearing that his partners at M2 were unhappy with the figure of 105 units and willing to go the affordable housing route in order to redevelop Merritt Apartments”

          This is quote is Mr Karp threatening to use 8-30g to bypass town zoning laws to get a larger building at the Vue than the town was comfortable with. It does not sound like you were “offering” affordable housing and were turned down by the town.

          The town needs to address affordable housing issues. We can do that as a community with thoughtful government leadership, active resident participation, and working with responsible civic minded developers. Neither you nor Karp Associates are the right partners. I think Weed and Elm, the Red Cross building and other proposed projects and your willingness to use 8-30g to threaten the town makes that clear.

    • Perhaps we have found our first area of agreement.
      If affordable units were not included in the original plans for the Vue, despite ‘Merritt Apartments’ clearly being identified as a key area for such units in the town affordable housing plan, we have a challenge as a community with regards to actually implementing affordable housing plans we set out.
      I think that reinforces my suggestion on a three step process to move this issue forward (above), especially with regards to fresh resident faces on an affordable housing committee that your principal advocates, and in my view the need for controls on parties with significant financial interests at stake to ensure we have a very fair and equitable proposed solution.
      Here appears to be a CT State definition of ‘naturally offering affordable units’ “Market-rate affordable housing, often referred to as naturally occurring affordable housing (NOAH), is unassisted but can be affordable for a variety of reasons, including because it is in low-cost markets”

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