Stefanonis: Town Still Not Entitled to Moratorium

Despite adding more detail to its application, developers Chris and Margaret Stefanoni say the town of Darien has still failed to show its eligibility for a moratorium on the 8-30g appeals process and is now "just beating a dead horse."

Though the developers' arguments rest on a fairly complex set of legal distinctions—par for the course in the area of land use law—they would significantly jeopardize the town's chances for a moratorium if accepted by the Department of Economic and Community Development.

Last week, the town officially filed its request with the DECD for a four-year freeze under statute 8-30g, which normally allows residential developers to sidestep local zoning restrictions through a state appeals process in order to encourage affordable housing construction.

Communities where at least 10 percent of housing units qualify as affordable are exempt from that process, but Darien is well short of that figure. Instead, it is seeking a temporary reprieve, granted when a town can show that it has collected affordable units—or the equivalent—totaling 2 percent of its overall stock.

The Stefanonis have become the lead critics of that project, arguing that the town is inflating the number of "housing unit-equivalency points" it has earned by ignoring disqualifying features of many units. And while the town's final application included rebuttals to comments submitted by the Stefanonis in June, they say Darien is still overlooking key legal issues.

"It is ... noteworthy that the overall response by the Town of Darien to our comments never quotes or relies on the controlling statutory language or definitions of Section 8-30g to support their position," Chris Stefanoni said in an email to Patch. "The reason is that the Town's application simply fails to comply with the statute."

When the town announced its intention to apply for the moratorium in May, it seemed that points claimed from market-rate units at Avalon Darien Community and Apartments—which relied on an intricate legal argument designating the complex as a "set-aside development"—might be the deciding factor.

While the Stefanonis are still challenging that aspect of the town's application, a second major sticking point has emerged with respect to Clock Hill Homes and Villager Pond. In their original comments, the Stefanonis argued that deeds at both locations were not adequately restricted to residents earning less than 80 percent of median income, as the law requires of affordable units.

8-30g defines median income, after adjusting for family size, as "the lesser of the state median income or the area median income for the area in which the municipality containing the affordable housing development is located." Because the SMI is 31% lower than that of the AMI—$86,200 for the state versus $125,700 for the area—the Stefanonis contend that the state figure must be used.

If they are correct, deed restrictions for units at those locations would appear to exceed allowable limits, invalidating 32 of the town's 144 claimed points. 136 points are needed to achieve a moratorium in Darien's case.

In its responses, the town asserted that the "lesser of" test only applies to set-aside developments, and that neither Clock Hill Homes nor Villager Pond was being asserted as such. In the case of regular affordable units, median income is pegged only to the AMI, the town said, citing a phone call and email from DECD Community Development Specialist Michael Santoro.

"In general, a deed restricted unit serving a family at or below 80% of the area median income for forty years would qualify for one point," Santoro said in the email.

The legal basis of that argument is not entirely clear, however, as the text of 8-30g does not differentiate between set-aside and regular units on this count. Asked to clarify, Andrea Aldrich, Manager of Community Development Services for the Planning and Zoning Department, declined to specify the exact source of the distinction.

"I figured out a nuance, based on research of the Housing Blue Ribbon Commission, in the CGS's [Connecticut General Statutes], but will wait until DECD gives its feedback," Aldrich said in an email.

For their part, the Stefanonis intend to submit further arguments to the DECD during the additional 30-day comment period required by 8-30g.

"We will address the Town's arguments for The Cottage and Avalon later, but they are equally without merit," Chris Stefanoni said.

"The requirements for a moratorium have been laid out by the statute and corresponding agency regulations and no matter what Darien tries to say, it continues to be unable to show that it meets these requirements," he added.