Fate of Town's Moratorium App Now Up to State

Darien's application for an 8-30g affordable housing moratorium is finally in the hands of state officials, as the town submitted its materials to the Department of Economic and Community Development on Wednesday.

The state will now have 90 days to approve, reject, or issue a "no decision" finding on the application, which was initially announced by the town in early May.

If the request is approved, Darien will be granted a long-sought four-year freeze on Connecticut statute 8-30g, which permits residential developers to overstep local zoning restrictions in many situations in order to encourage affordable housing construction.

Normally 10 percent of a community's housing units must qualify as affordable for it to be exempt from the statute, but if a town can show that it has added affordable housing units—or the equivalent—equaling 2 percent of its total stock, it can qualify for a temporary moratorium.

In its application dated July 6, the Planning and Zoning Department contends that Darien has done exactly that. Citing affordable units at Avalon Darien Community and Apartments, Villager Pond, Clock Hill Homes, and The Cottage in Darien, the town asserts that it has surpassed the 136 "affordable housing equivalency points" needed to be eligible.

Newly appended to the application are written comments challenging the town's math from developers Chris and Margaret Stefanoni, as well as comments from RTM member John Sini and a video of the June 29 public hearing triggered by the Stefanonis' petition. The law requires communities to include all such public feedback when applying for a moratorium.

Also enclosed is a compulsory set of responses to the Stefanonis' criticisms, in which the town seeks to refute the developers' claim that many of its declared points are invalid.

The largest bone of contention appears to be Avalon Darien. Earlier this year, the town adopted new legal arguments asserting that the complex is a "set-aside development," a distinction which would allow its market rate residences to be counted alongside affordable dwellings at .25 points apiece. These units–35.5 points in all—form a make-or-break component of the application.

In their June 3 comments, however, the Stefanonis challenged the town's reasoning, arguing that the approval date of Avalon Darien—1999—makes it ineligible for the "set-aside" designation, which was not codified until 2000. The failure to adhere to the new definition, they argued, means the development cannot reap the accompanying benefits.

"The Town of Darien is claiming that the stringent aspects of the definition of a 'set-aside development' that require a 40-year deed restriction, higher percentages of affordable units, and lower maximum income levels do not apply to Avalon, but is simultaneously claiming the beneficial aspect of the definition, specifically the moratorium points for market-rate units, do apply to Avalon," the Stefanonis wrote.

In its response, the town counters that the deed restrictions for Avalon Darien reflect the 8-30g provisions in place at the time and that similar developments from the same period—including examples in Trumbull and Milford—have previously been deemed "set-aside" by DECD.

"Substantive changes to statutes only apply prospectively, unless the legislature specifically states that a law has retrospective application," the town quotes from a letter by attorney Timothy Hollister. "Public act 00-206 does not apply retroactively. Thus ... it [Avalon Darien] remains a 'set aside' development that complies with CGS 8-30g."

Planning and Zoning further challenges the Stefanonis' assertion that Clock Hill Homes and Villager Pond do not qualify for points because their unit deeds "exceed the maximum income levels allowed by Connecticut General Statutes Section 8-30g."

"This is not a set-aside development, thus if units are restricted at or below 80% of AMI, they will qualify for moratorium points. The Stefanonis incorrectly used the State Median Income (SMI) rather than the Area Median Income (AMI)," the town writes of Villager Pond. (The same logic was repeated for Clock Hill.)

Lastly, Darien attempts to disprove the Stefanonis' claim that The Cottage has been spuriously reclassified from a single-family home to a multi-unit complex. The town refers to DECD's 2009 and 2010 Affordable Housing Appeals Lists, which recognize six units at the site.

Now that the town's application has been submitted, the Stefanonis—or any other developer—have 90 days to file a project proposal under 8-30g to guarantee it would not be affected by a moratorium, if one is granted.

The couple is currently challenging the town's rejection of a proposed development—a 16-unit senior housing complex at Leroy and West—and has made recent property purchases on Hoyt Street and Tokeneke Road.

In June, Chris Stefanoni told Patch that his petition of the town's application is not a stall for time, but rather an attempt to lend transparency to Darien's affordable housing agenda.

"My applications—if I want to submit them—have been ready for months," Stefanoni said.

"There was so much secrecy, and they [town officials] were fudging the numbers," he added.