Every year since 1990, when the Connecticut General Assembly first enacted the Affordable Housing Land Use Appeals Act, General Statutes § 8-30g, legislators have filed bills to repeal it, gut it, or substantially amend it. While changes have been made – longer affordability periods, more units set aside for lower income households, procedures to give towns more control of the § 8-30g process, and a four-year moratorium from applications in towns where a substantial number of affordable units are built – in 27 years, the act’s core provision has remained intact: In towns where less than 10 percent of the housing stock is financed by a government program or preserved as affordable by a deed restriction (currently 138 of 169 towns), when a permit applicant appeals a municipal planning and zoning commission’s denial to court, the burden of proof is on the commission to prove the denial was based on a substantial public health and safety concern that “clearly outweighs” the town’s need for more lower cost housing.
In July 2017, the General Assembly, overriding Governor Malloy’s veto by one vote in the House and one vote in the Senate, amended § 8-30g’s moratorium system and tweaked several aspects of the act. Public Act 17-170 does not change affordable housing application requirements, processing procedures, the commission’s burden of proof in court, or the relief that a court may order to overturn or modify a denial. Rather, the 2017 amendments (1) make it slightly easier for 64 towns with less than 3,750 housing units and six cities with more than 20,000 units to obtain a multi-year moratorium from § 8-30g applications; (2) provide a way for the City of Milford – and it alone – to eventually apply for a moratorium based on a unique formula for counting its existing mobile home units as affordable; (3) mandate that all 169 towns adopt an “affordable housing plan”; and (4) make the definition of “median income” in the state’s Incentive Housing Zone (IHZ) program the same as the § 8-30g definition, so that IHZ units, when built, will qualify for moratorium points.
The 2017 Amendments: Lower Moratorium Requirements for 64 Towns
The first thing to note about the 2017 amendments is that, while all of the provisions became effective July 24, 2017, the day the General Assembly overrode the Governor’s veto, several provisions “sunset” on September 30, 2022, meaning that the pre-July 2017 law will go back in place on October 1, 2022 (unless, of course, the legislature revises this date in the future).
The most significant aspect of P.A. 17-170 is the lower threshold, applicable to municipalities with 3,750 or fewer housing units (based on the 2010 federal census) for achieving a four-year moratorium. There are 64 towns eligible for the lower threshold. Before P.A. 17-170, the requirement was the greater of two percent of all dwelling units in the municipality, or 75 points. The new threshold is the greater of two percent or 50 points. Mathematically, this change impacts towns with 2,500 or fewer housing units, all of which now only need 50 points for a moratorium; and towns with 2,500 to 3,750 housing units where the reduction from 75 points to the 50 point minimum is 25 points or less. The chart at the end of this Alert highlights in bold and blue which towns have had their point requirements lowered. However, the point total change will sunset in 2022.
The next substantial change is the addition of new sources to achieve HUE points:
- Units that are not age-restricted and contain three or more bedrooms achieve one quarter point, in addition to their points based on median income level;
- If at least 60 percent of units identified in a moratorium application are non-age-restricted, then the age-restricted units qualify for an additional one-half point; and
- Non-age-restricted units in an Incentive Housing Zone Development as defined in § 8-13m (which may already qualify based on being income-restricted), qualify for an added one quarter of a point.
These changes will also sunset in 2022. Again, HUE points are issued for constructed units, not those that have received land use permits.
Affordable Housing Plan
The next change is a requirement that all municipalities – even those currently exempt from
- 8-30g – adopt and revise every five years an “affordable housing plan.” Each town must explain how it will “increase the number of affordable housing developments within the town.”
“Median Income” in the IHZ Program
The Act also changes the definition of “median income” in the Incentive Housing Zone, General Statutes § 8-13m. When the legislature adopted this more-friendly-to-towns program in 2007, it set median income as “area” median, which means that affordability calculations take into account differences within regions within Connecticut. The § 8-30g standard is the lesser of the area median or the statewide median. P.A. 17-170 adopts the § 8-30g standard (the lesser of area or statewide) for IHZ developments. This change does not expire in 2022.
Qualifications for a Second Moratorium
The next change is the qualification standard for a second moratorium: If a municipality has 20,000 or more dwelling units, has adopted an “affordable housing plan,” and has previously qualified for a four-year moratorium, the threshold for a second moratorium is the greater of 50 points or 1.5 percent of housing stock, and the second moratorium is five years, not four.
Only six municipalities that are currently subject to § 8-30g have more than 20,000 dwelling units: Milford, Fairfield, Stratford, Hamden, Greenwich, and West Hartford. It should be noted that of these six towns, only Milford’s ability to apply for a first moratorium has been changed by the 2017 Act. This change does not expire in 2022.
Several provisions of P.A. 17-170 affect only the City of Milford. The Act contains a lengthy definition of “resident-owned mobile home park,” and a set of HUE points specifically written for such a park. To our knowledge, the only mobile home park in Connecticut that meets P.A. 17-170′s definition of “resident-owned mobile home park” is the Ryder Woods Community in Milford. Thus, P.A. 17-170 allows Milford to count the existing units at Ryder Woods in a moratorium application.
Implications of P.A. 17-170
For those seeking to develop affordable housing under § 8-30g, our advice in light of the 2017 amendments is to (1) determine whether the subject property is in a town whose moratorium threshold is now lowered; (2) calculate how many points a proposed development will generate when completed; and (3) calculate how many moratorium points a town needs to obtain a moratorium, and when it may be able to document the necessary point total. If a proposed development will help a town achieve a moratorium, that may be a selling point.
Tim Hollister is a partner in the Hartford office of Shipman & Goodwin LLP and co-chairs its Real Estate, Environmental, and Land Use practice.