Town Attorney’s Office: ‘Substantial’ Legal Burden on P&Z in Affordable Housing Applications


Planning & Zoning Commission’s have “a very limited ability” to deny applications for affordable housing developments, according to a memo from the town attorney’s office.

Considerations such as standards set out in local zoning regulations—building height, coverage and setbacks, for example—density requirements, neighborhood character and parking, cannot be a reason for a P&Z Commission to deny such applications, attorney Peter Gelderman of Westport-based Berchem Moses PC said in a memo to the town planner.

“The only valid basis upon which a commission may deny an affordable housing application is by determining, based upon sufficient evidence in the record, that a denial is necessary to protect an identified and substantial public interest such [that] denial outweighs the need for affordable housing and the application could not be amended to protect the public interest,” Gelderman said in the memo, dated Feb. 22 and more recently published on the municipal website. “Only towns that equal or exceed the ten percent affordable dwelling unit threshold or that have a moratorium in place are exempt from the burden of proving that the above balancing test supports a denial.”

The memo is dated about one week after a Feb. 14 affordable housing application filed with P&Z that calls for a 102-unit multi-family residential development at Weed and Elm Streets. 

The proposed development at 751 Weed St.—a 3.1-acre parcel owned by 751 Weed Street, LLC—is being filed as an “8-30g” application, a reference to the section number under Chapter 126a of the Connecticut General Statutes. 

Gelderman’s memo, which does not address the application at Weed and Elm specifically (P&Z has not yet formally taken up the filing), reviews the original of the 8-30g law, “sometimes referred to as the ‘Affordable Housing Land Use Appeals Act’ because it establishes certain appeals standards when an application is denied that are unique to affordable housing applications and not applicable to other applications that come before the commission, like special permit application[s], site plan applications, and text or map amendment applications.”

“The Act applies to every municipality in Connecticut in which less than 10% of all dwelling units in the municipality are affordable,” Gelderman said.

He continued, “If an affordable housing application is denied by the commission, the commission must prove by sufficient evidence in the record before the commission that 1. (A) the decision is necessary to protect substantial public interests in health, safety or other matters which the commission may legally consider; (B) such public interests clearly outweigh the need for affordable housing; and ( C) such public interests cannot be protected by reasonable changes to the affordable housing development, or 2. (A) the application which was the subject of the decision from which such appeal was taken would locate affordable housing in an area which is zoned for industrial use and which does not permit residential uses; and (B) the development is not assisted housing. If the commission does not satisfy its burden of proof under this subsection, the court shall wholly or partly revise, modify, remand or reverse the decision from which the appeal was taken in a manner consistent with the evidence in the record before it.”

In simple terms, that means “the legal burden on any Planning and Zoning Commission that denies an 8-30g application is substantial, thus accounting for the fact that historically Planning and Zoning Commission close most of these appeals. The state of Connecticut policy has articulated in this statute is to encourage development of affordable housing.”

New Canaan is not expected to achieve the 10% threshold. 

The town achieved four years of relief from the state law, from 2017 to 2021, by redeveloping New Canaan Housing Authority properties on Millport Avenue at greater density in order to create more affordable units. 

Officials had hoped to earn another four-year “moratorium” with the rebuilding of the Canaan Parish complex at Lakeview Avenue and Route 123, a long-planned project. But financing was delayed by state budget difficulties and the pandemic, Housing Authority officials have said, and the town is now susceptible to 8-30g applications. The town currently is preparing to apply for its next Certificate of Affordable Housing Completion, though no matter when that application goes in, it will take at least 90 days for the state to issue the Certificate, and 8-30g applications filed up until its issuance must be processed.

News of the proposal at Weed and Elm broke last week, after a separate application from the property owner—made to the New Canaan Water Pollution Control Authority, regarding sewer capacity and approval for hook-ups—was made public. (In New Canaan, the Board of Finance acts as WPCA, and at its Feb. 10 meeting formally noted the application’s filing and said it would make a decision in April-May, as per a 65-day timeframe spelled out under state law.)

Arnold Karp is developer and owner of the property, the sewer application said.

In comments on the article and social media, dozens of residents have criticized Karp and the proposal, saying it’s too big, unwanted and would negatively impact the neighborhood and town.

2 thoughts on “Town Attorney’s Office: ‘Substantial’ Legal Burden on P&Z in Affordable Housing Applications

  1. Sounds as if the the town attorney has thrown in the towel before the fight has even begun. Private citizens haven’t and won’t.
    There is always more than one side to a story, especially a legal one. As reference, Bill Cibes, an advocate for affordable housing, recently wrote in the Ct Mirror:
    “8-30g does not allow developers to “largely ignore zoning regulations.” To the contrary, 8-30g explicitly states that the town can deny an application on a showing of “substantial public interests in health, safety or other matters which the [zoning] commission may legally consider.” While the most compelling reasons are often those based on health and safety, 8-30g allows “any” factor to be weighed, as long as the factor is one that is legally within the scope of the commission. For example, height, bulk, and setback are factors that can be considered. So are historical factors. But the weighing process is different. They must be sufficiently compelling to outweigh the need for affordable housing. The town, in other words, cannot avoid affordable housing development by simply zoning it out or by saying we don’t need any more housing.”

  2. Between this article and Lazlo’s, the town is trying to “set the table” and avoid any responsibility for the moratorium lapse or a specific plan for 8-30G. Furthermore, the town refuses to answer which agency was responsible for the lapse and what people were involved. Rest assured, We will get those answers one way or another.

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