Official: Avalon Darien Short of Key 8-30g Distinction

Darien was advised by a state official in February that Avalon Darien Community and Apartments would not qualify as a so-called "set-aside development," an opinion that—if upheld during an ongoing review process—could derail the town's request for an affordable housing appeals moratorium.

The judgment was expressed by Michael Santoro, Community Development Specialist for the Department of Economic and Community Development, in an email exchange with Andrea Aldrich, Manager of Community Development Services for Darien's Planning and Zoning Department. 

Though the email does not constitute a formal ruling and may differ from the department's final decision on the matter, Santoro is an expert on Connecticut statute 8-30g inside the DECD, which is responsible for reviewing the town's application.

After providing a detailed description of Avalon Darien's deed restrictions and approval process in a February 2 email, Aldrich asked, "Is it then considered a set-aside development?"

"Unfortunatey, no, they would not qualify as a 'set-aside' development, since the term is defined in statute, and not regulation," Santoro responded. "Presumably, the Legislature understood the ramifications of establishing the definition in statue, thus limiting and interpretory [sic] potential."

The messages were obtained through a Freedom of Information Act request.

Planning and Zoning Director Jeremy Ginsberg told Patch on Tuesday that Santoro had not reversed his statement in conversations with the town, but he cautioned that the department would not be able to issue a formal judgment without all of the relevant land records, which are included in the town's application.

"Almost every repsonse he gives back to use, the answer is 'generally.' ... In most of his responses, he gives that caveat," Ginsberg said. 

"He's extremely cautious about what he puts in writing," he added.

Darien announced in May that it would seek a four-year freeze on 8-30g, which permits affordable housing developers to overstep local zoning restrictions in many cases through an appeals process.

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.

For years, town officials believed that Darien was short of the needed "housing unit-equivalent points" to earn a moratorium, but a new calculus emerged from P&Z in the winter and spring of this year asserting that Avalon Darien deserved more points than previously thought. The difference—35.5 in all—would put the town over its 136-point minimum, officials claimed.

The legal rationale for this is open to debate, however, and is among the arguments challenged in comments submitted to the town by developers Chris and Margaret Stefanoni.

By the town's logic, the points arise from a clause of 8-30g that permits certain market-rate units to be credited toward a moratorium if they are 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 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 immediately 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—as the town believes it should—the development would appear to satisfy the set-aside requirements of 8-30g, thereby supplying the additional 35.5 points.

To bolster their argument, the town enclosed with its application a letter from land use attorney Timothy Hollister, who represented Avalon Darien at the time of its construction and sat on the blue ribbon commission that shaped the original 8-30g legislation.

"Since Avalon at Darien conformed to § 8-30g's requirements when it was approved, it remains a 'set aside' development that complies with § 8-30g." Hollister wrote in a March 2 letter addressed to Aldrich.  "I would also note that other pre-2000 § 8-30g developments, such as Avalon Gates in Trumbull, which was approved in 1994-5, have been treated by state agencies and the courts as fully conforming to § 8-30g."

"In fact, Avalon Gates has been recognized by the Department of Economic and Community Development in connection with Trumbull's four-year moratorium from § 8-30g applications," he added.

"He [Hollister] is one of the premier land use attorneys dealing with 8-30g," Ginsberg said Tuesday. "When we discussed this with Mr. Hollster, his belief was that it did qualify."

Ginsberg said the town had discussed the difference of legal opinions in multiple phone calls with Santoro, but that Santoro had not signaled whether he concurred.

"We said, 'Wait a minute, you're saying no, Tim Hollister says yes.' ... Two experts in the field disagree on this relatively recent project," Ginsberg said.

"I think the only thing he [Santoro] said to us verbally is 'I'll take a look at it,'" he added.

The town's application was officially deemed complete by the DECD on July 27. The department has 90 days from that date in which to approve or reject the request; absent a response during that time, the application will be considered provisionally approved.