In Darien's 8-30g App, So Much Depends Upon 'Set-Aside'

Whatever else can be said of section 8-30g of the Connecticut General Statutes—and quite a bit has been said about it around Darien in recent years—few would describe the law as easy to understand.

The statute allows developers to build denser housing complexes than would normally be permitted by local communities if, as in Darien's case, less than 10 percent of a town's residential units are considered affordable by the state. 

As many Darienites are now aware, a town can obtain a four-year moratorium on the law if it picks up a certain number of "housing unit-equivalent points" from affordable developments. The points must equal two percent of the total available dwelling units in the community for it to qualify.

But the formula used for tabulating those points can be extremely complicated—a fact put in high relief by last month's revelation that Darien may have been eligible for a reprieve since 2003.

Indeed, despite the intense scrutiny applied to the town's affordable housing situation by the Planning and Zoning Department, the Darien Affordable Housing Advisory Commission, the Board of Selectmen, and numerous other key players, it seemed a potential stockpile of points—35.5 out of roughly 136 required for a moratorium in Darien—had been underplayed or wrongly regarded as invalid during previous tallies.

Only after another exhaustive inventory and additional consultations with outside counsel did Planning and Zoning conclude that the town could apply the points, which derive from market-rate units at Avalon Darien Community and Apartments. On the basis of the finding, the department filed a notice of its intent to seek a moratorium in mid-May.

But with less than a week remaining in the public comment period of the application and a state review process of up to 90 days in the offing, the town employee largely responsible for breaking through the legal jumble is about to see her position drop from full-time to part-time due to cutbacks.

That rollback, instituted by the Board of Selectmen to close a gap in the FY 2011 budget, highlights an odd contrast facing town hall: the likely procurement of a widely-coveted moratorium on one hand, and the consequences of an ongoing budget crunch on the other.

POINT SOURCE

If you're not a land use lawyer, the origin of the new housing points may be a bit baffling.

In short, they arise from a clause of 8-30g that permits certain market-rate units to be credited toward a moratorium if they're built alongside affordable units. The state grants 0.25 points for each one of these dwellings, whereas affordable units can earn around 0.5 to 2.5 points apiece.

But under the law, market-rate units must be part of something called a "set-aside development" to qualify for those quarter points. Roughly speaking, a development is considered "set-aside" when 30 or more percent of its dwellings are deed-restricted to remain affordable for at least 40 years and when a certain percent of its units are rented or sold to low-income earners.

At first glance, that would seem to rule out the 142 market-rate units at Avalon Darien—completed in 2003—where only about 25 percent of dwellings earn the affordable designation.

But the 30 percent figure wasn't always in place: back in 1999, when Avalon Darien was originally authorized by the Planning and Zoning Commission, the threshold for an affordable housing development stood at just 25 percent. (The "set-aside" terminology wasn't even defined until the law was revised in 2000.)

If the state were to evaluate Avalon Darien by the affordable housing standard in effect at the time of its approval, it would appear to satisfy the "set-aside" requirements of 8-30g, thereby supplying the additional 35.5 points now claimed by the town.

After extensive research—and on the basis of similar cases around Connecticut—town officials believe the state will do just that. Planning and Zoning's tally combines the 35.5 apparent points with 108.5 more from affordable units at Avalon Darien, Clock Hill, The Cottage in Darien, and Village Pond. The total, 144 points, is in excess of the town's required minimum of 136.

NOTHING OFFICIAL

The notion of counting market-rate units at Darien Avalon is not a new one, but confusing feedback on the issue from the state and the limited weight given to it in subsequent town proceedings kept it largely in the shadows for years.

In 2007, the Darien Affordable Housing Advisory Commission made several attempts to determine the eligibility of market-rate units at Avalon Darien with the state's Department of Economic and Community Development. While initial reactions suggested they did not qualify, the department never offered an official response.

"DAHAC did ask DECD if Avalon counted as set-aside points," said Andrea Sangrey Aldrich, Manager of Community Development Services for the Planning and Zoning Department. "They didn't get a formal response. ... They couldn't get an answer from them."

After DAHAC wrapped up its work, the mantle of affordable housing fell to Planning and Zoning—including Aldrich, who had just begun serving at the department that year.

"They had done some work and some reviews and some analysis, and then we picked up from that," said Planning and Zoning Director Jeremy Ginsberg.

ONE SENTENCE

In January 2009, as Planning and Zoning worked on the town's affordable housing plan, a draft presented to the Board of Selectmen made another reference to the prospect of counting market-rate units at Avalon Darien.

"A total of 47 units of affordable housing were built on 31.5 +/- acres at AvalonBay on Hollow Tree Ridge Road. At this location, a number of market rate units were also built and the Town will seek approval from the State of Connecticut Department of Economic and Community Development (CT DECD) to allow those units to count towards the 8-30g moratorium," the report read.

As the report was being finalized, however, the reference to "market rate units" was removed from the section during a round of edits by then-First Selectman Evonne Klein, who said she was attempting to make the body of the report more readable by shifting information to its endnotes.

Klein said that the omission was unintentional and that the market-rate option had never been emphasized to the board by the town's paid staff as a means of achieving a moratorium.

"I did not receive any memos or have any meetings where this possibilty was raised," Klein said. "There was one sentence in the draft which was never brought forward as a recommendation, as a strategy."

Klein pointed to a series of moratorium tactics outlined toward the end of the plan—a total of 18 in the January draft—saying that the market-rate option should have been featured in that section if the town's staff had considered it a viable recourse.

"When we reviewed that affordable housing plan, we expected that all the work in there was complete and done to the best of the staff's ability, and we used that plan to make decisions," Klein said. "To be clear, the charge was to answer the question: How do we get to the moratorium?"

"What shouldn't get lost—and I think this is really an imporant point—is all the good, hard work that has been done that actually laid the groundwork for so much of the activity that has happened," Klein added.

A NEW PUSH

When newly-elected First Selectman Dave Campbell came into office in November 2009, he instructed Aldrich to reevaluate the points available to Darien for a moratorium application. During the preceding campaign, Campbell had vowed to "push back against state mandates that adversely affect our town," including 8-30g.

"He came in to kind of get a review of everything, and that was one of the things. 'Okay, what does it really mean? What points?'" Aldrich said.

As Aldrich conducted her research, consultations between the town and land use attorney Tim Hollister—previously the attorney for Avalon Darien when it had come before the Planning and Zoning Commission in 1999—began to yield information helpful for the undertaking.

"Tim Hollister, who [also] represented Garden Homes in their application in fall of '09, talked to us on numerous occasions and then noted to us his belief that Avalon should count as a set-aside development," Ginsberg said.

With town officials now thinking that the Avalon Darien market-rate units would put the town's point total over the top, Aldrich set about preparing the application for a moratorium earlier this year.

In a March letter, Hollister noted that similar developments—including another Avalon property in Trumbull—had been recognized as "set-aside," despite being approved before that term was defined by the state.

"All I was asked to do is to clarify the status of the affordable units at the Avalon Darien property," Hollister emphasized in an interview. "All I did was clarify the chronology of when those events occurred." 

"I have no position on the town's application. I have not helped prepare the application," he added.

Still, town officials clearly found some value in Hollister's statements.

"I think Mr. Hollister's experience in the field gave us reason to reevaluate," Ginsberg said.

And so over the spring, town officials quietly inched closer to what they hoped would be Darien's first 8-30g moratorium.

CUTBACKS

On April 8—just under a month before the town's intentions became public—Campbell submitted a budget proposal to the Board of Finance that caught members off guard: cut the town's part-time fire inspector completely, and reduce Aldrich's full-time job as Manager of Community Development Services to a part-time position.

The plan came as Campbell was struggling to find $68,000 to trim from the FY 2011 budget, noting at the time that Planning and Zoning "sees less work because of the economy." Beyond her role in the moratorium, Aldrich works on community development, parking, housing, and grant writing.  

Given approval by the Board of Finance to make a general reduction, the Board of Selectmen ultimately decided to cut down Aldrich's post but to keep the fire inspector, trimming a series of smaller items—including Campbell's expected raise—instead.

"We didn't have enough going on, and it was the one job that could be cut back," Campbell said later in an interview. "It was just one of things unfortunately. ...There are a few jobs that she's doing, and there's enough time for her to get done what needs doing."

The town's new fiscal year begins July 1.

Though the decision came just weeks before Aldrich would submit a notice of intent for the moratorium application, she said she didn't think the rollback would have negative ramifications for the town.

"No, it doesn't indicate anything of that sort," Aldrich said, "I think it's a budgetary process that people went through."

"I think it's just very important that the town does get an 8-30g moratorium," Aldrich added. "I think it's been in the works for such a long time, and I find it to be such a rewarding learning experience, as I feel the same way with the FEMA grants and all the other work that we get to do."

Campbell said he also didn't believe the cut would adversely affect development matters for the town, adding that he hoped Aldrich's job could be restored to a full-time position in the next budget cycle.

"Jeremy [Ginsberg] has to get more involved in things" in the meantime, he said.

THE NEXT STEP

As part of the state-mandated process, Planning and Zoning published a notice of intent in the May 18th edition of the Connecticut Law Journal. That marked the beginning of a 20-day period for public comment, during which the department is accepting written statements regarding the moratorium application.

At the end of that period, the department will either submit the application to the DECD, or—if a petition with at least 25 signatures is received—hold off for another 20 days to conduct a public hearing.

"Once they have the formal application, and it's complete, and they deem it complete, then they [DECD] have 90 days to decide," Aldrich said "Which means 'yes,' 'no,' or 'no decision.'"

If a finding is not made in 90 days ("no decision"), the town would receive a moratorium, Ginsberg said, but the state would still have some ability to weigh in after that period. 

But, Ginsberg added, "we're so early in the process that we're not worried what's going to happen three, four, five months from now."