Things to Watch Out For: Affordable Housing, Fair Housing, And Religious Land Uses Connecticut Land Use Law For Municipal Land Use Agencies, Boards, and Commissions Wesleyan University March 5, 2005 Timothy S. Hollister Shipman & Goodwin LLP One Constitution Plaza Hartford, CT 06103-1919 PHONE: (860) 251-5601 FAX: (860) 251-5318 E-MAIL: thollister@goodwin.com
AN INTRODUCTION TO AFFORDABLE HOUSING, FAIR HOUSING, AND RELIGIOUS LAND USES Presentation Outline – March 5, 2005 Affordable Housing 1. Why do we have an affordable housing statute? 2. The Zoning Enabling Act (Conn. Gen. Stat. § 8-2) and affordable housing 3. The State's "Ten Percent List" and exempt/non-exempt towns/moratorium 4. Two types of "affordable housing development" 5. Sample calculations of maximum prices/rents for affordable units 6. Burden-shifting section of Conn. Gen. Stat. § 8-30g; how it differs from traditional appeals 7. The four-prong test 8. What land use applications are covered by the Act? 9. "Substantial public interests in health or safety" 10. "Clearly outweigh the need for affordable housing" 11. Processing the § 8-30g application 12. The resubmission procedure
Fair Housing 1. Federal and Connecticut prohibitions/protected classes 2. Fair housing concerns in planning and zoning 3. “Familial status” 4. Age-restricted housing 5. Housing for persons with disabilities Religious Land Uses 1. Connecticut statute 2. Federal statute 3. "Religious exercise" 4. Examples from across the U. S. 5. Compelling governmental interests 6. Least restrictive means 7. How to handle religious land use applications
TABLE OF CONTENTS – Supplementary Materials PAGE Power Point Slides for March 5, 2005..................................................................... 6 Affordable Housing Experience of Timothy S. Hollister with Affordable Housing................................... Conn. Gen. Stat. §§ 8-2, 8-30g, 8-30h.................................................................... Connecticut State Agency Regulations, §§ 8-30g-1 to 7 (2002)............................. Sample "Affordability Plan" – Olde Oak Village, Wallingford, Connecticut (2002) ............................................................................ Connecticut Conference of Municipalities Publication – Applying the Affordable Housing Land Use Appeals Act: Guidelines for Boards and Commissions....................................................................................... Fair Housing Connecticut Fair Housing Act, Conn. Gen. Stat. § 46a-64c.................................... Federal Fair Housing Act, 42 U.S.C. §§ 3601 et seq.............................................. Federal Housing for Older Persons, 24 C.F.R. §§ 100.301 et seq. ........................ Religious Land Uses A. Souchuns, "We All Gotta Get Religion: A Primer on Religious Land Use, and Institutionalized Persons Act of 2000, Connecticut Planning, April 2001.............................................................. Conn. Gen. Stat. § 52-571b ................................................................................... RLUIPA Complaint: St. Mary's Parish Corporation v. Ridgefield Planning and Zoning Commission (2002)...............................................................
BIOGRAPHICAL NOTE FOR Timothy S. Hollister Timothy S. Hollister is a partner in the Hartford office of Shipman & Goodwin LLP, where he practices land use, environmental and municipal law. He graduated from Wesleyan University in 1978, received a Masters Degree in Urban Studies from Occidental College (Los Angeles) in 1980, and a law degree from Boston University in 1982. In 2002, Tim was awarded the designation of "Local Government Law Fellow" by the International Municipal Lawyers Association, becoming the first Connecticut attorney to received this recognition. In 2004, he received the Distinguished Service Award from the Home Builders Association of Connecticut for his work on affordable housing, federal civil rights cases, and state wetlands legislation. He served in 1996-97 as Chair of the Environmental Law Section of the Connecticut Bar Association and is the current Chair of the Association's Affordable Housing and Homelessness Committee.
Things to Watch Out For: Affordable Housing, Fair Housing, and Religious Land Uses Affordable Housing Connecticut Land Use Law For Municipal Land Use Agencies, Boar ds and Commissions Wesleyan U niv ersity March 5, 2005 Timothy S. Hollister Shipman & Goodwin LL P One Constitution Plaza Hartford, CT 06103-1919 PHONE: (860) 251-5601 FAX: (860) 251-5318 E-MAIL: thol lister@goodwin.com 1 2 Why do we have an Obligation of ALL municipalities affordable housing statute? with respect to affordable housing: . . . [The] Subcommittee nonetheless believes that too often the equally important concern of pr oviding General Statutes § 8-2 an adequate supply of housing at affordable prices has been ignored in the decisions of some local Such regulations shall also encour age the development of land use commissions . . . . housing opportunities, including opportunities for multifamily dwellings, consistent with soil types, terr ain and infr astructur e . . . [It] appear s that many times the local capacity, for all r esidents of the municipality and the planning commissions’ decisions elevate vaguely-stated and region in which the municipality is located . . . . Su ch relatively unimportant concerns over the important regulations shall also promot e hou sing choice an d need to build affordable housing. econom ic diversity in housing , in cluding housing for both low and moderate inco me hou seho lds . . . . - Report of the Governor’s Blue Ribbon Commission to Study Affordable Housing, 1988. 3 4 The “Ten Percent List” – permanent Under “Section 8-30g,” two types of exemption from affordable housing statute: “affordable housing developments”: 1. DECD’s Count of: - CHFA mortgages - Governmentally-assisted units - Deed restricted units – Set aside developments: Applicant agrees to preserve, for 40 years, 15 percent of units for households earning 2. Intent: A measure of impact of government housing funds 80 percent or less of area median/statewide median on a municipality (whichever is less), and 15 percent for households 3. The list is NO T: earning 60 percent or less - State’s determination that 10% of housing stock as affordable is sufficient or -A measure of local need for affordable housing – Units built w ith financial assistance from the 4. Today, 30 of 169 municipalities exempt government 5 6
Example: Set aside development (60 % of median), Example: Affordable (80% of median), tw o bedroom sale unit, Wallingford, CT (2004): bedroom rental unit, Ridgefield, CT: – Median income, adjusted for unit/household size: $64,800 – $64,800 x 60% = $38,880 – Median income, adjusted for household size: $64,800 – $38,880 x 30% = $11,664 – $64,800 x 80% = $51,840 – $11,664 ÷ 12 months = $972/month – $51,840 x 30% = $15,552 – Minus estimated monthly taxes, insurance, mandatory fees, – $15,552 ÷ 12 months = $1,296/month utility allowance $365 – Compare to 120 percent of – Left for mortgage, HUD Fair Market Rent 2005 principal, and interest $607/month (take lower number) $1,330/month – $607 at 7% for 30 years will support mortgage of $92,000 (appr ox.) – Maximum monthly payment – Maximum downpayment 20% $23,000 (including utility allowance) $1,296 – Maximum sale (or resale) price $115,000 7 8 The basic feature of § 8-30g: burden of proof Four prongs of shifts to commission to defend denial reasons: burden of proof: Traditional Land U se C ase - Property owner’s/applicant’s burden As to each reason for denial, commission must prove - To show lack of evidence to suppor t, or illegality (1) Sufficient evidence in record - Court defer s to local commissioner s’ decision factual findings, interpretations of regulations, conclusions (2) Of a “substantial public interest in health or safety or other matters that the commission may legally Affordable H ousing Case consider” - Burden on commission on appeal to court - Limited deference (3) This interest “clearly outweighs the need for - Court, not commission, decides, based on review of record affordable housing” (4) Commissioners’ concerns cannot be addressed Note: Burden shifts for (1) denials and (2) substantial modifications by “reasonable changes” to development plan or conditions of approval that impact affordability 9 10 What land use permit applications Substantial public interests are covered by § 8-30g: Court conducts independent review – no deference to commission opinions: - Amendment to regulations - Zone changes Substantial interests - Special permits/exceptions - Inadequate water supply - Site plans - Inadequate sewage disposal capacity - Variances - Documented traffic safety problem - Subdivisions - Inadequate emergency access What is not covered Not substantial or not legal - Wetlands - Aesthetics - Sewer - “Character of the town” - Other utility connections - Existence of other affordable (but market-rate) housing - State Traffic Commission - In general, existing density - Other federal, state and local permits - Impact on schools, taxes, property values 11 12
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