Actions the CT legislature can take to promote more affordable housing

This is the fifth of a five-part series exploring issues surrounding Connecticut’s affordable housing needs. Parts One , Two , Three and Four are here.

In this final piece, I propose bolder steps to attaining Connecticut’s affordable housing goals. All of them could promote more lower-cost housing.  None is intended to make life difficult for local land use boards and town planners, if they will screen out the myths and misconceptions that should not be part of the conversation.

These proposals are intended to match up with and avoid or ameliorate the obstacles I have identified in prior articles.

My list:

Repeal the “protest petition” provision of General Statutes § 8-3(b). This law, part of the original 1920s Zoning Enabling Act (and specifically called out in the book The Color of Law by Richard Rothstein as a pernicious tool of segregation), allows owners of 20 percent or more of land within 500 feet of a proposed zone change or regulation amendment to force a “supermajority” (two thirds) vote at a zoning commission when a zone change is proposed. Let’s just say that (unless the proposal is under § 8-30g and a petition can’t be filed) when neighbors band together and file a protest petition against a housing proposal, sound land use planning is generally not their primary concern. We should inter this remnant of legal segregation.

Allow “middle housing” – two to four units on one parcel – as-of-right (objective standards, no special permit required) where sewer and water are available, or water and sewage disposal can be provided in compliance with the public health code. This proposal parallels the zoning issue in a current state court case: If, for example, a 4,000 square foot, eight bedroom single-family house is allowed on a two acre lot with only an administrative zoning permit, then why not four 1,000 square foot attached units in one building on the same lot, assuming the health code is met?

Adopt a standard for inland wetlands and watercourses commissions along the lines of, “No commission shall impose stricter impact standards when evaluating a regulated activities permit for a middle housing or multi-family housing development plan than for other applications.” Yes, this may be hard to enforce, but sometimes just setting a rule of conduct is helpful. When a wetlands agency applies inconsistent standards, the problem is usually apparent to the development professionals.  Note that this proposal does not promote laxity in wetlands regulation or permitting, only consistency.

Amend our state sewer statutes to require every municipal sewer system with more than X gallons of capacity to set aside X percent (five, perhaps) specifically to support middle and multi-family housing. This will force sewer commissions to do a modicum of capacity planning for multi-family and affordable proposals.

Add a property owner’s “bill of rights” to the state sewer statutes, stating that, “A property owner who proposes middle or multi-family housing on land within a designated public sewer service district shall have a right of access to the sewer system, provided sufficient capacity is available and an extension and/or connection is physically feasible and will meet engineering requirements.”

Further, with respect to sewers, which are often essential to multi-family housing: “No sewer commission may establish or administer a capacity allocation system that restricts sewer discharge available to a specific parcel to the amount necessary for one single-family home.”

Sewer commissions sometimes adopt a “sewer matrix” in which no property owner, regardless of acreage, is entitled to more capacity than a single-family home.  While commissions claim this is a planning tool, it is often used to preserve the status quo of single-family zoning and prevent lots from being converted to middle housing or multi-family units.

In addition, the legislature should adopt a standard for what are called “sewer avoidance areas,” so sewerable land cannot be arbitrarily designated as unsewerable.  There should also be a uniform, statewide standard for sewage discharge calculations per person, which can range locally from 50 to 150 gallons per day, per person; the unjustified high end of the scale, by limiting residential density, is an exclusionary tool.

Modify 8-30g by eliminating the “industrial zone exemption, ” and clarifying the state’s point system for four-year moratoria from § 8-30g applications. The industrial exemption was adopted in 1995 ostensibly to protect heavy industry from having its business disrupted or curtailed by complaints from adjacent multi-family development.  But the exemption has been deployed, for example, to exclude affordable housing in “light industrial” areas where the uses are nominally industrial but have no impacts incompatible with housing.

As to the moratorium rules, in recent years, several towns have devised a strategy of approving affordable units only to achieve an ongoing exemption from § 8-30g. But these rules are intended to be a rest stop, not an off ramp.  At a minimum, the General Assembly should clarify that towns seeking a moratorium must submit proof of annual, ongoing compliance with maximum income and rent/price limits at the units claimed for points; cannot claim points from one development to achieve multiple moratoria; and must deduct points if they demolish existing affordable units to make way for new ones.

It is sad to see so many religious institutions shrink or go out of existence, but the reality is upon us. Connecticut should, therefore, follow California’s lead and allow multi-family and affordable housing as-of-right on underutilized or vacated religious properties.

Modular housing (built in a factory, transported to a site) and manufactured homes have proven to be less expensive than so-called “stick-built” homes. Each type has strict construction code.  Connecticut has a statute that purports to prohibit discrimination against certain types of manufactured homes, but we need a more affirmative statement from the legislature in support of these alternatives.

The General Assembly should revise the 2021 Public Act to prevent towns from “opting out” of the ban on excessive parking requirements. In my experience, no town that has opted out had a valid reason to do so.  Excessive parking is exclusionary and results in unnecessary paving.  And bear in mind that limits on parking and minimum unit size, in combination, can make a big difference in density on many parcels.

In the context of group homes for the disabled, our courts have recognized that special permits, which are highly discretionary zoning or planning commission decisions, can be a tool of discrimination. The General Assembly should take this cue and identify categories of housing, such as all middle housing (two to four units) proposals and multi-family plans for less than 100 units, and direct that they cannot be required to obtain a special permit.  Commissions should specify clear, objective, standards that, if met, will result in site plan approval.

In the first article, I mentioned that local zoning discretion in adopting regulations and evaluating permit applications has been a tool of exclusion and segregation in part because, except for § 8-30g cases, judges are directed to defer to local choice and not substitute their judgment for that of local agencies. But this deference is also a remnant of our exclusionary past. There is nothing in the Zoning Enabling Act or inherent in judicial review that compels courts to endorse or facilitate exclusionary zoning. We need the legislature to overrule this tenet of judicial review.

Alternatively, if a case involving discrimination in housing that makes its way to our Appellate Court or Supreme Court, one of the parties or a friend-of-the-court in a brief could invite the Judges/Justices to review judicial deference to exclusionary zoning and fashion a revised standard, something like: “In reviewing a zoning or planning commission decision to deny an application for middle housing, multi-family housing, or affordable housing not proposed under § 8-30g, a trial court shall conduct a plenary [non-deferential] review as to whether all denial reasons serve a proper purpose of zoning.” This would establish review not as deferential as the traditional judicial standard, but not as stringent as § 8-30g and its shifting of the burden of proof to local commissions.

A word about the “Fair Share” program that has been proposed to and considered by the General Assembly in recent sessions. In general, coming up with an equitably determined number of housing units for which each town must be responsible is a worthy goal. However, the administrative details, such as matching development goals to infrastructure, are complicated. Moreover, Fair Share is based on the town-centric governance that I described in the first article in this series as problematic. In any event, everything proposed in these articles is complementary to programs like Fair Share. If all the steps proposed here were to be implemented, all housing programs, whether federal, state, or non-profit sponsored, should benefit.

Finally, while our state has done exemplary work to reduce homelessness, assisting this population suffers from the fact that while towns have an amorphous obligation to “care for the poor,” there is no state mandate that towns in their zoning regulations designate at least some sites for a homeless shelter, and so most do not. Siting a shelter could be a regional/multi-town cooperative effort, but the legislature needs to direct all towns to participate, through land use, in sheltering the homeless.  Our state’s supportive housing programs that try to transition the homeless to permanent housing are heroic, but the first step on the ladder is providing more places to come in from the cold.

I thank the Connecticut Mirror for this opportunity to present this series; and my assistant Annamaria Zocco, and my housing friends (you know who you are), for helping me prepare them.