The agency’s denial was “fundamentally flawed because neither the law nor DOH’s own past precedent supports the interpretation now relied upon by DOH,” according to an administrative appeal filed Dec. 2 in state Superior on the town’s behalf.
The Department of Housing “has prejudiced the substantial rights of the Town” because its decision violated state law, according to the complaint, filed on the municipality’s behalf by lawyer Nicholas Bamonte of Berchem Moses PC, the town attorney’s firm. The agency “ acted contrary to its own past practice and procedure under analogous circumstances,” Bamonte said in the six-page complaint. The denial was “arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion, in that DOH has previously awarded a Certificate of Affordable Housing Completion/Moratorium to at least one municipality with the same facts, but arbitrarily made the opposite decision when considering the Town’s Application,” the complaint said.
The lawsuit is separate from the petition the town filed with the state Housing Department last month, asking the agency to reconsider its decision to deny New Canaan’s application for four years of relief from a 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, as it had signaled, on Nov. 28 denied the site application at Weed and Elm.
In the lawsuit, the town takes issue with the way the state has counted the “housing unit equivalent” or HUE points needed to achieve a moratorium. The state said in its denial that the town hadn’t correctly calculated its HUE points. While the state was considering the town’s application for the moratorium, First Selectman Kevin Moynihan said during a public meeting that the town had been “led to believe” it would be approved—an assertion that the DOH flatly denied.
Moynihan said this past summer that the town would not sue the state agency over a denial. During a Town Council meeting in June, Moynihan said, “[W]e are not going to force a state agency to change their position by litigation.”