In rare move, court upholds affordable housing denial
FAIRFIELD — A court has upheld the town’s denial of an affordable housing project on High Street — a rare move that generally only happens 20 or 30 percent of the time, officials said.
Some land-use attorneys and advocates say developers’ high success rate in courts has helped increase the amount of affordable housing in the state over the past three decades. It’s also a reason they’re seeing fewer denials from local planning boards at the start. Town officials have repeatedly said they don’t want to approve certain projects for various reasons but their hands are tied by state statute 8-30g.
“The courts have been a very huge help and the statute works,” said Carol Martin, executive director for the Fairfield Housing Authority.
State statute 8-30g limits why town boards can reject an affordable housing project and allows those projects to circumvent local zoning laws.
Under the statute, towns must prove that the public health, safety or environ
mental concerns outweigh the need for affordable housing. It applies to localities where less than 10 percent of the housing stock is considered affordable by the state.
It went into effect in 1990 as a way to help increase affordable housing in the state. It has become controversial because towns say it opens the possibility for projects to go into areas that aren’t appropriate for that type of housing and takes away local control.
“An appeal of an affordable housing application as a very difficult appeal,” said Joel Z. Green, a Bridgeport land-use attorney who defended the denial in the High Street case.
About 75 percent of appeals are decided in favor of the developer, experts say.
There is such a narrow area for why a project can be rejected and a high burden of proof is needed for the denial to be upheld. This means popular critiques from towns about the project’s impact on traffic, schools, sewer capacity and the character of the area, as well as the project’s density and height aren’t considered.
Tim Hollister, a land-use attorney with Hinckley, Allen & Snyder in Hartford, said something would be wrong with the law if the percentage of denials overturned was lower.
How did this happen?
Sean Ghio, the policy director for Partnership for Strong Communities, said it’s hard to say how many 8-30g proposals go to court because there isn’t a central database. He said it’s more common in Fairfield County where there is more demand for housing than other parts of the state.
Hollister said historically there have been about 10 8-30g cases brought to court a year for the past 25 or so years.
Martin said there weren’t a lot of cases when the statute was first adopted because either developers weren’t building under it or not bringing it to court if towns denied the proposal.
As more developers began being denied, however, theys began taking the cases to court where the majority of the denials were overturned, she said.
“It’s not until you get enough court decisions that attorneys start looking at it,” she said.
Hollister said most of the earlier appeals went to court and now about one-third or half of the cases denied end up in full court. He said towns are approving or settling more and more proposals in recent years.
It took from the 1990s to the early 2010s for towns and developers to really get a handle on the projects that work in towns, as well as what would be upheld or not in court, he said.
“Over time, towns began to realize affordable housing had benefits,” he said, adding they recognized the need for the people working in their communities to be able to live there too.
Creating a partnership
Affordable housing advocates said they’ve seen developers and towns working together at the onset more frequently over the years since 8-30g went into effect and the outcomes in court.
Advocates and lawyers say this is both attributed to towns recognizing the costs associated with unsuccessfully going to court, as well as the need for affordable housing.
Both Ghio and Green said Fairfield does a good job at trying to increase its affordable housing stock beyond these 8-30g projects.
“I think a lot of people in Fairfield have spent a considerable amount of time and effort in trying to solve the affordable housing problem,” Green said. “While there is admittedly a long way to go, we’ve made some real progress.”
Even with these efforts though, Ghio said the town’s overall percentage and number of affordable housing units is decreasing.
“Fairfield isn’t the exception,” he said, adding it’s happening all over the state as affordable housing restrictions expire, deeds lapse and older public housing projects coming down. He said the biggest variable is the singlefamily mortgages that become harder to use as towns become more expensive.
Towns are recognizing most 8-30g denials will be overturned in court and the project will happen anyway, so they’re starting to work with the developer to try to make sure the project fits within the existing zoning laws and plan.
They’re also trying to decide if they want to spend all of the money it will take to bring it to court and have it be rejected.
North Haven was faced with this exact dilemma in 2014.
Towns are settling the projects already denied too, recognizing they’ll likely lose and working out a compromise so some of their changes will go into effect on the original plan.
Westport recently settled a case over a contentious project that had been in the works for 18 years. In May, the planning commission announced it would settle based on the recent loses the town had on other projects. Members said by settling they could make this proposal safer and help the town keep its moratorium, preventing other 8-30g proposals from being filed for some time.
Milford also settled a case several years ago.
In their favor
On the flip side, some towns use the courts as a way to prevent the development from coming to fruition either because the developer won’t want to submit a proposal in the first place because of the delay or because they can no longer sustain the project or afford the taxes on the land while they wait for the case to make its way through the courts, Ghio said.
Developers can also use the 8-30g to their advantage, submitting proposals under the statute to shoehorn certain developments in because they know they’ll have a good chance of winning in court.
“For some developers, this provides an opportunity that would not have otherwise existed,” Green said.
He said that’s not usually the case though.
“Some developments are appropriately sized and of little impact and help satisfy the need for affordable housing,” he said. “In certain instances, there are developments that are not of an appropriate scale and can impact neighborhoods.”
Martin said this can happen among for-profit developers, but that isn’t the norm. Some cases involve a developer who worked on a project with the town, submitting it under the town’s regulations only to have it rejected by the elected board. Sometimes
On the flip side, some towns use the courts as a way to prevent the development from coming to fruition either because the developer won’t want to submit a proposal in the first place because of the delay or because they can no longer sustain the project or afford the taxes on the land while they wait for the case to make its way through the courts, Ghio said.
these developers will then come back under 8-30g.
“The vast majority of 8-30g applications are not of that nature,” she said, adding most developers are looking to fill the need for affordable housing while also making a profit.
Need for affordable housing
Many acknowledge the need for affordable housing in Connecticut, especially Fairfield County, which is a big economic diver for the state.
Green said it’s important to balance that need by ensuring the proposal is appropriate, factoring in green space, the location and access to public transportation.
“Somehow we need to develop more effective mechanisms in Connecticut for creating affordable housing — for meeting the need we have for affordable housing, while balancing that with the need for ensuring the development is well-placed and effective in achieving that objective,” he said.
Hollister said he has seen a modest uptick in the number of affordable housing applications in the last three or four years and sees the need growing even more as people look to move out of denser areas during the pandemic.
Generally about 30 percent of 8-30g projects have affordable units under the state definition, but Hollister said those other units are still cheaper than other housing options in those towns. He estimates about 7,000 to 8,000 affordable units have been built through 8-30g projects over the years with another 15,000 or so lower costs units built as a result.
“Every unit that comes online, it creates an opportunity for housing for a family that will otherwise not exist,” he said.
Ghio said preventing or stalling affordable housing from going in Fairfield County is preventing the state from becoming healthier.
“It’s like driving with the break on,” he said.
Martin said there is a housing crisis and it’s only going to get worse as pandemic-related unemployment benefits and eviction moratoriums expire.
“We’re going to have a tsunami soon,” she said. “We should be building units now.”
She said more people are starting to better understand the need for affordable housing in their communities as they see certain projects being built and their neighbors or relatives looking for this type of housing.
Ghio said 8-30g is just a small piece of the overall affordable housing landscape.
“It’s a very important part of the affordable housing universe but it’s only a small part,” he said.