Zoning and Affordable Housing

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EXPLANATION OF THE DIRTY DOZEN

SEE BILL LANGUAGE BELOW

  • This bill creates an “unfair” fair share!
  • State (OPM and DOH) to determine “fair share” affordable housing plan for each region and a target “fair share base” for each town.
  • WestCOG and MetroCOG are to be combined into one larger planning region for the purposes of allocating a fair share of needed affordable housing.
  • Towns must create 10-year plans to meet the State mandated goal, update zoning regs, and update their Plan of Conservation and Development – failure means they cannot seek an 8-30g moratorium.
  • Towns required to fund the expansion of sewer and other infrastructure to allow affordable housing development – when many towns receive little to no infrastructure spending support from the state.
  • Puts immense burdens on CT towns to have attorneys draft and vet zoning regulations inclusive of these requirements and keep towns on the hook to foot legal bills, fines should anyone take legal action to say that the town has not fulfilled its “fair housing plan” responsibilities.
  • It does not recognize what is naturally existing market rate affordable housing, so it does not reflect what is already existing.
  • Other zoning bills have as of right market value development that will lead us further away from meeting the “fair share” and will penalize towns.
  • Allows aggrieved parties (and non-profit advocacy groups) to sue a town for not getting a fair share, very vague construct, who decides a town’s honest efforts?
  • Courts play a substantial role in determining whether towns are providing realistic opportunity for development; courts can approve development; courts can give towns more time or reduce goal for public health/land’s characteristics.
  • Section 5 still allows As Of Right Accessory Apartments in a town to remain in the bill and zoning regs can designate locations or zoning districts to allow one apt per single-family dwelling with one parking spot allocated to the apt.
  • Removes “to provide adequate light and air; to prevent overcrowding, and prevent undue concentration of population” will this remove town height restrictions in suburban towns, “prevent overcrowding,” “undue concentration of population.”
  • P&Zs “May” require using a vehicle-miles traveled instead of level of service traffic calculations, which remains the gold standard in calculating traffic impact.
  • Local P&Zs Cannot have a fixed cap of number of dwelling units that constitute multifamily housing over four units, middle housing or mixed-use that may be permitted. (The As-Of-Right multifamily development language in Section 6 of SB1024 was removed, but this has remained? Will section 6 be added back later? )
  • Limits parking to 1space for a studio or 1BR and 2 spaces for 2BR+
  • Cannot deny a project on character.
  • If the municipality does not change its code, to comply to Section 5, it becomes null and void. It also may not impose additional standards beyond what is outlined in Section 5.
  • Outlines an alternative sewage system with higher capacities. There are public health and environmental concerns with new sewer systems.
  • Section 10 state each municipal water pollution control authority “may prepare” a water pollution control plan, which delineates areas served, planned or proposed sites, proposed community sewerage systems, etc.
  • Section 2 limits the fees that can be charged by a municipality for a development projects. Bill requires the return of excess applicant fees and no additional developer fees allowed to be collected by a town. For New Canaan, it can end decades of funding of the New Canaan affordable housing fund, which is how New Canaan funded affordable housing in our town. Will this prevent towns from creating or using an existing affordable housing development fund?
  • Lines 147-150 requires consideration of affordability for neighboring communities – how would this even be applied? It does not consider the cost of property varies by town.
  • P & Z cannot impose conditions on the development, this will increase property taxes on residents.
  • Form based codes must remain optional, at the discretion of the local P & Z commissions and if created by an appointed committee, it should include adequate representation from cities, suburbs and rural areas with communities of all economic levels.

This bill requires the regulations to provide for, rather than encourage, a variety of housing development opportunities to meet local and regional needs and further the Federal Fair Housing Act;
Concerns:

  1. Eliminates a requirement that the regulations be made with reasonable consideration as to the “character” of a district; a word which only goes to describe a town’s unique identity.
  2. Prohibits regulations from imposing conditions on mobile manufactured homes and associated mobile lots that are substantially different from those imposed on single family developments.
  3. Allows for Air Rights to be transferrable, may impact a local P&Zs ability to control density and building height.
  4. Requires all municipalities that exercise zoning powers to demonstrate to the Office of Policy and Management (OPM) that their regulations provide varied housing development opportunities and promote housing choice and economic diversity in housing.
  5. Requires municipalities to comply with existing affordable housing planning laws and outlines reporting requirements.
  6. Requires Office of Policy Management secretary to convene a 13-member working group to study incentivizing and measuring compliance with (a) the affordable housing planning requirement and (b) zoning requirements related to housing choice and to create recommendations for compliance with affordable housing plan. The group should be specifically tasked with developing nuanced solutions that reflect the uniqueness of our 169 municipalities in the state not just one size mandates that do not fit all. This small appointed working group is comprised of members that are slanted almost exclusively towards housing advocacy and there is not enough representation of suburban and rural communities. Could involve development of policy by towns that will never be impacted by the laws they create, like some bills this session that exclude towns with less than 7,500 residents. The appointed committee will make recommendations to the OPM and there is no indication if these recommendations will be carrots or sticks. The “recommendations” must be brought to the legislators and to a full public hearing before a vote.

Starts us down the slippery slope of state oversight/mandates over local zoning control (if you open the door on state regulation, more rules will come in the future)

  • What works in one town will not work in every town
  • Mandates numbers/percentages of affordable housing which are not achievable in all towns (density challenges, public transportation access, costs, implementing the new intricate rules into town official documents)
  • Eliminates resident input, right to petition by forced compliance
  • Requires submittal of Fair Housing Plan/Plan of Conservation every 5 years, which is then posted online by OPM (Creating a readily available public record of town who do - or do not comply)
  • Requires municipality to post their draft affordable housing plans to their websites (if residents pose concerns to plan, this legislation still forces towns to comply with Federal Fair Housing)
  • Creates a working group to study guidelines and incentives to comply with 8-30j
  • Assumes municipalities are not working to improve housing options & affordability.
  • Raises the limit for alternative sewage/community sewerage systems from 5,000 gallons (equivalent to 33 one-bedroom, 22 two-bedroom, or 11 three-bedroom homes) to 10,000 gallons per day (66 one-bedroom, 44 two-bedroom, or 22 three-bedroom homes) DEEP would no longer be in charge; DPH would. Unclear DEEP/DPH position on this. Why is this new threshold being proposed? What is the problem that is addressing? Specificity of number suggests a situation in mind.
  • Similar bill in SB1024 raises the capacity from 5,000 gallons to 7,500 gallons.
  • Sets in motion potential for state mandated local development of multi-family housing on State Parking Lots or on town owned properties. Most if not all, Metro North train stations have state owned parking lots. This bill may attempt to set in motion a potential override of local decision making on siting of multi-family housing developments. Section 1 specifically stated "5" transit stations: Why not name the five specific transit stations and their towns?
  • This legislation requires the same number of commuter parking spaces to be provided for transit, with no mention of additional off-street parking required for the new units in the housing development itself. It does not account for the possible lack of availability of adequate on-street parking near the targeted state lots for multifamily and mixed-use development. Considering other TOD bills being proposed require no off-street parking at all, the need for off-street parking for such development must be properly addressed as those living in suburbs will continue to need vehicles.
  • If it is state owned property, who collects the property tax on that development? IF it is the state, are the towns left to deal with the increased infrastructure costs while the state would get all the property tax revenues?
  • This bill seeks to identify and target state and town owned properties for multi-family development and can potentially be tied to other bills that would allow outside Housing Authorities to build a project in a municipality up to 15 miles away.
  • No training required in impact analysis (!). Economics of land use decisions critically important.
  • AICP members excluded from training requirement. Why? 49 states including CT do not require professional certification to work as a planner; none require AICP.
  • Allows municipalities to require 5+ hours training per year for ALL zoning board members.
  • Need to remember members are volunteers – this is a substantial commitment of time.
  • Training biased in favor of affordable housing (2 of 4 hours).
  • All bills deserve consideration in full sunshine - in the light of day in an open public hearing and fully drafted.
  • SB 1066 gives little clue as to what changes might be expected post Public Hearing – possibly taking away a town’s ability to choose to enter into an interlocal agreement and making it mandatory.
  • Legislators, especially members on the committees hearing these zoning bills have a responsibility to inform their constituents about hearings and what is in the language of the actual bills.
  • The use of dummy bills may be the most compelling reason for term limits and a return to checks and balances in our state government. Absolute power corrupts absolutely. If any legislators have to stoop so low to submit dummy bills in order to enact their poor public policy in the middle of the night, it is likely that the bill is not worth the paper it would be written on! Shame on you!
  • All bills deserve consideration in full sunshine - in the light of day in an open public hearing and fully drafted.
  • SB 1066 gives little clue as to what changes might be expected post Public Hearing – possibly taking away a town’s ability to choose to enter into an interlocal agreement and making it mandatory.
  • Legislators, especially members on the committees hearing these zoning bills have a responsibility to inform their constituents about hearings and what is in the language of the actual bills.
  • The use of dummy bills may be the most compelling reason for term limits and a return to checks and balances in our state government. Absolute power corrupts absolutely. If any legislators have to stoop so low to submit dummy bills in order to enact their poor public policy in the middle of the night, it is likely that the bill is not worth the paper it would be written on! Shame on you!
  • Raises the limit for alternative sewage/community sewerage systems from 5,000 gallons (equivalent to 33 one-bedroom, 22 two-bedroom, or 11 three-bedroom homes) to 7,500 gallons per day (50 one-bedroom, 25 two-bedroom, or 16 three-bedroom homes) (ll. 20, 84-85)
    1. Enables more homes to be served in unsewered areas
    2. Unclear DEEP/DPH position on this and how it may affect their oversight
    3. Why is this new threshold being proposed? What is the problem that is addressing? Specificity of number suggests a situation in mind

  • Requires water pollution control authorities to set aside capacity for apartments (ll. 67-70).
    1. Tells WPCA how to do their jobs.
    2. Puts multifamily housing ahead of other uses (e.g. industrial).
    3. No provision for WPCAs at capacity with current or future projects. Will result in high development costs to expand capacity through tax dollars.

  • Replaces “character” with “physical suitability” (ll. 241-242)
    1. No consideration of economic suitability, e.g. a “farming community” or a “manufacturing zone” or a “biotech cluster”

  • Requires zoning to include the “express allowance of housing that could feasibly be occupied by both low and moderate-income households” (ll. 261-262)
    1. Confusion between planning and zoning; plans do not have the power to allow

  • Requires zoning to “expressly allow” (rather than encourage) “the development of housing which will meet the housing needs identified in the state’s consolidated plan for housing” and the state POCD (l. 264)
    1. State housing and POCD now set parameters for local zoning
    2. No consideration of statutorily-required affordable housing plans (CGS §8-30j)
    3. Why even address this locally then?

  • Requires zoning to provide for accessory dwelling units (ADUs), middle housing, and mixed-use buildings with at least 4 dwelling units

  • Requires municipalities to allow ADUS units by right (ll. 467-538)
    1. Eliminates public hearings for ADUs
    2. Required to be allowed by right in all lots of at least 20,000 square feet (approx. 1/2 acre) that either has a single-family home or is zoned for single family homes
    3. ADUs must be allowed within, attached to, or detached from primary dwelling (municipalities cannot prohibit ADUs in additions or outbuildings)
    4. Municipality cannot set a maximum size of ADU less than the lesser of 30% of the primary dwelling unit or 1200 square feet
    5. 1200 square foot ADU is the size of many single-family homes (average home in 1950 was approx. 1500 square feet)
    6. Essentially doubles housing unit density in most of the state without going through the subdivision process
    7. Overrides local setbacks; max 10 feet from side and rear lot line
    8. ADU setback often less than setback for home or outbuilding (e.g. detached garage)
    9. Prohibits requiring parking for ADUs
    10. Prohibits conditioning ADU on correction of nonconforming use
    11. Prohibits any height, landscaping, or design standards that “adversely affect affordability”
    12. Prohibits municipalities from using/imposing “additional standards beyond those set forth” in the bill
    13. Guts the ability to regulate ADUs as most standards can be argued to affect affordability – ADUs essentially exempted from any PZ oversight

  • Requires municipalities to allow “middle housing” by right (ll. 539-577)
    1. Middle housing is duplexes, triplexes, quadplexes, townhomes, and cottage clusters (high-density single family with a central open area)
    2. Note: inclusion of townhomes means no limit on number of units in complex
    3. Eliminates public hearings for middle housing
    4. Required to be allowed by right in 50% of the area within ½ mile of every commuter rail or bus, bus rapid transit, and ferry terminal in a municipality
    5. Required to be allowed by right in 50% of the area within ¼ mile of every commercial center, every concentrated residential or commercial district, or village district
    6. Prohibits any height, setbacks, landscaping, or design standards that “adversely affect affordability”
    7. Prohibits conditioning middle housing on correction of nonconforming use
    8. Prohibits municipalities from using/imposing “additional standards beyond those set forth” in the bill
    9. Guts the ability to regulate ADUs as most standards can be argued to affect affordability – most housing of 2+ units essentially exempted from any PZ oversight
    10. Eviscerates any inclusionary zoning regulations

  • Caps fees for municipal approvals at $250 per unit (ll. 602-604)
    1. Regardless of project complexity or unit size
    2. In-house costs of reviewing projects may exceed this
    3. Potential cost shift from applicant to existing taxpayers or inadequate reviews
    4. Undermines affordable housing trust funds that are funded by approval fees

  • Prohibits municipalities from requiring affordable housing applications analyses to go beyond the Fire Safety Code (ll. 646-649)
    1. Focus on building design only, not emergency response
    2. Eliminates ability for municipalities to consider ability to respond (e.g., a municipality may not have the equipment needed to serve a tall building, or may not have the staffing and engines needed to serve a large number of units)
    3. Ethics of applying a lower level of risk assessment to residents of affordable housing!

  • Enables court to award attorneys’ fees to 8-30g plaintiffs (ll. 671-673)
    1. May increase costs of 8-30g litigation for municipalities

  • Limits the ability of third parties to intervene in 8-30g proceedings (ll. 1463-1470)
    1. Limits the ability of the public to participate

  • Gives a 20% housing unit equivalent point bonus for developments built without the affordable housing appeals procedure (ll. 800-805)
    1. Incentive not to go through 8-30g for municipalities
    2. BUT bill would eviscerate inclusionary zoning, so it is unclear whether this would come into play
    3. The ADUs and middle housing required by right have no affordability requirements; by forcing more market-rate housing, the bill may force municipalities away from the 10% goal under 8-30g, rather than draw them toward it

  • Establishes process to create “model zoning guidelines for municipalities to adopt” (ll. 819-853)
    1. Unclear if this adoption is voluntary or required

  • Enables public housing authorities to expand their jurisdiction to (very) high opportunity census tracts within a 15-mile radius of the authority’s home municipality (ll. 854-1147)
    1. No extension of eminent domain or police authority
    2. Unclear on ability for local oversight of Housing Projects by a town’s own housing authority.

  • Requires PZC, ZBA, and IWWC members to take 4 hours of training annually
    1. At least 2 hours on affordable and fair housing annually
    2. How to compel volunteers to take more time? Question of participation
    3. Question of applicability of training – is 2 hours every year on affordable housing the best and most pressing issue?

  • Would require zoning restrict development on ridgelines and to prohibit clear cutting and quarrying (ll. 344-352)

  • Enable PZCs to terminate nonconforming uses after a certain period of time (ll. 402-409)
    1. Runs counter to a recent public act that establishes the right to maintain a nonconformity as long as the property owner intends to continue its use (PA 17-39)
    2. Enables termination of nonconforming uses even if they have been continued
  • Establish a STATE PROPERTY TAX on residential and commercial real property, and exempts first $300,000 of the assessed residential value. Calculated based on the percentage of affordable housing developments, as defined in section 8- 30g of the general statutes, located in a municipality as follows:
    1. for > OR = to 10 % affordable, 0 mill
    2. from 8% to < 10%, 0.4 mill
    3. from 6% to < 8%, 0.8 mill
    4. from 4% to <6%, 1.2 mill
    5. from 2% to <4%, 1.6 mill
    6. From 0% to <2% 2.0 mill

How to calculate this unprecedented STATE PROPERTY TAX: Only municipalities tax property now!
Assume a home or business property with an ASSESSED value of:

$500,000: $500,000-$300,000= $200,000/1000= 200 and if only 0-2% affordable, $200 * 2.0 mill = $400 add’l state property tax
$1,000,000: $1,000,000 – $300,000= $700,000/1000= 700 and if only 0-2% affordable, $700 * 2.0 mill = $1,400 add’l state property tax

  • IF THIS BILL IS COMBINED WITH THE NUMEROUS ZONING BILLS FLOODING OUR TOWNS WITH MARKET VALUE DEVELOPMENT (with a density of 15+ units PER ACRE), ratio of Affordable Housing will be driven DOWN relative to the increased total housing stock. We will be set-back and paying even higher mill rates of state-wide property tax than we are now!
  • This Bill will disproportionately impact towns closest to NYC, with higher land costs. It will have a negative effect on the real estate market in Fairfield County at a time when it is finally just recovering from a long period of depressed values. CT is the only state in the country where property values have not recovered to where they were prior to the Great Recession.
  • It is further concerning that this property tax will be tied to existing natural affordable housing not recognized by 8-30g. The current 8-30g guidelines specifically excludes any naturally existing market value affordable housing that is not deed restricted or built roughly before 1990. Naturally affordable properties certainly exist in every municipality and have not been quantified and ADUs and Accessory Apartments should be part of that calculation.
  • We have seen from past tax increases in recent years that this will have a chilling effect on the upper end of the Fairfield County real estate market. So, why should legislators cares?
    1. Highest-income earners have the greatest mobility to establish residency elsewhere in states with more favorable tax structures.
    2. Net outmigration prior to COVID has reduced property and income tax revenues. Covid-19 has permanently changed how we live and work. Employees may no longer need to be geographically tied to NYC. This greater flexibility means that now more than ever CT must become more competitive since CT will no longer be competing just with our neighboring states but essentially the entire country.

CLICK BELOW TO READ THE SUBSTITUTE LANGUAGE THAT PASSED OUT OF COMMITTEES

“Fair Share” Calculator by Town

Consider the below example playing out at the same time in virtually every town – forced by state edict to double or triple their housing stock  or face potentially ruinous lawsuits. Exponential multifamily overdevelopment when the state population has been declining due to poor economic policy that is chasing businesses out – policies that are churned out by the very same Leadership that is now proposing these ill conceived housing bills? 

The fatal flaw of this bill is that it is not based in reality. In calculating fair share they rely mainly on grand list, income, poverty (all three of those highly correlated already), and existing multifamily housing. There is no capacity assessment to consider the infrastructure impacts of the allocations on individual towns.

Here is the explanation of the three options, taking New Canaan as an example:
Example of Option 1: New Canaan builds the "fair share" 1,350 units of Affordable Housing. The total "Fair Share" number is 20% of all housing currently in New Canaan. The cost per unit to New Canaan, excluding land cost is $450-600K PER UNIT. To create all 1,350 the minimum expense would run well over $600 million! No town can afford to pay for that.
Town Existing Housing Units* Number of Affordable Units
Required by Fair Share*
Total Housing Units
After Fair Share is met
{{vm.myTown}} {{vm.current}} {{vm.affordable}} {{vm.current + vm.affordable}} ({{vm.percentage}}% Increase)
Example of Option 2: Using a 10% affordable rule, as was in SB1024 and other plans, New Canaan would have to permit developers to only build projects over 10 units, and they would need to build 13,500 units of mostly multifamily to achieve the 10% or 1,350 affordable units. New Canaan's current total housing stock is 6,749 for the whole town. New Canaan would need to triple their entire housing stock to accommodate all the affordable units.
Town Existing Housing Units* New Units Required
if ONLY 10% Must be Affordabe
Total Housing Units
After Fair Share is met
{{vm.myTown}} {{vm.current}} {{vm.affordable10}} {{vm.current + vm.affordable10}} ({{vm.percentage10}}% Increase)
Example of Option 3: Same idea, at 20% affordable rule, similar to Westport model, developers would build 6,749 new units, of mostly multifamily, with 20% or 1,350 units of affordable, doubling the housing stock in town.
Town Existing Housing Units* New Units Required
if ONLY 20% Must be Affordabe
Total Housing Units
After Fair Share is met
{{vm.myTown}} {{vm.current}} {{vm.affordable20}} {{vm.current + vm.affordable20}} ({{vm.percentage20}}% Increase)
* per Open Communities Alliance