Academic journal article The Yale Law Journal

Connecticut Retrenches: A Proposal to Save the Affordable Housing Appeals Procedure

Academic journal article The Yale Law Journal

Connecticut Retrenches: A Proposal to Save the Affordable Housing Appeals Procedure

Article excerpt

I. INTRODUCTION

The Connecticut General Assembly recently enacted significant changes to the state's Affordable Housing Appeals Procedure.(1) This Note explains why these amendments, which took effect on October 1, 2000, fail to advance the statute's original purpose of increasing the amount of low- and moderate-income housing throughout Connecticut.(2) The amendments, while purporting to help low-income housing consumers, are likely to slow considerably the construction of affordable housing in the state.

The Appeals Procedure was originally enacted to promote the construction of housing for low- and moderate-income families by providing developers an opportunity to obtain judicial review of towns' denials of their applications to develop affordable housing. The law applied both to nonprofit and public housing organizations and to private developers. It allowed private developers to appeal denials as long they placed restrictive covenants on twenty percent of the units in their development, creating so-called deed-restricted units.(3) Since the procedure was enacted more than a decade ago, private developers have constructed by far the greatest number of housing units under the Appeals Procedure, more than nonprofit or public-sector housing developers. Studies have shown that not only the deed-restricted units that private developers have constructed under the Appeals Procedure, but also the market-rate units they have produced in the same developments, have provided cheaper housing than previously was available in many towns.(4)

The 2000 amendments to the Appeals Procedure impose more stringent requirements on private developers who want to bring appeals under the statute. The amendments increase the percentage of units to which a developer must attach restrictive covenants in order to qualify under the statute. They also require the developer to restrict the affordable units to even lower prices and for a longer period of years than before. Together, these new restrictions will significantly increase the costs of private development under the Appeals Procedure and slow the production of affordable housing in the state. The amendments may even be an intentional attempt to sabotage private developers, promoted by an alliance of affluent suburban towns and nonprofit housing organizations, both of whom would benefit from getting private developers out of the business of building affordable housing. But whatever the legislature's motivation, the amendments fail to further the goal of producing affordable housing because they cripple private developers.

Even if nonprofit developers were able to fill all of Connecticut's needs for low- and moderate-income housing by building deed-restricted units, this would not be a good solution. Connecticut's experiment with deed-restricted affordable units has been plagued with a variety of problems. Because developers have shown that they can provide moderate-income housing at market rates as long as they can build at reasonably high densities, Connecticut should allow developers to trigger the Appeals Procedure with proposals for medium- to high-density multifamily housing developments. This procedure would build on the successes of the Appeals Procedure while eliminating the problems created by deed-restricted housing units.

Connecticut's experience with creating and administering affordable housing units during the last decade is instructive for the many other states that have actively experimented with legislative, administrative, and judicial solutions to their own lack of affordable housing. These states' approaches have varied widely. Massachusetts and Rhode Island, for example, have created administrative appeals processes by which developers who apply to build deed-restricted affordable housing units may appeal the denial of these applications to an administrative appeals board.(5)

Other states have established agencies to oversee municipalities' planning and zoning decisions. …

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