Back in the late 1980s, a state representative from New London and a local lobbyist were integral in the creation of a state law that has since shaped the development of affordable housing in Connecticut.

Then, as today, housing and rent prices were skyrocketing amid limited supply. Strict regulations in many towns meant developers seeking approval for multifamily construction projects were frequently denied by local zoning commissions, and there was little recourse in the court system when it came to appealing the denials.

Democrat Bill Cibes, New London’s representative in Hartford at the time, said development outside the city focused largely on single-family houses with large lots. That priced out the suburbs for a lot of people, segregating lower-income earners in urban areas.

“Representing New London, I really thought that the towns surrounding us didn’t do their share in creating affordable housing,” Cibes said.

New London resident Charles Duffy, a retired lobbyist and then-executive director of the Council of Small Towns, recalled going with the New Britain-based Connecticut Legal Services attorney Raphael Podolsky to talk with Cibes about much-needed legislation to promote affordable housing.

Duffy told The Day Cibes directed the two men to “go out and write something.”

“So we did,” Duffy said.

Known in statutory shorthand as 8-30g, the law makes it possible for developers to get around local zoning restrictions by suing the town if their plans for affordable housing are rejected. The burden of proof in such cases shifts to the municipality to show the risk to public health or safety outweighs the need for affordable housing.

Podolsky described the collaboration as an effort to find “common ground.”

Cibes, Duffy and Podolsky emphasized that the responsibility for each municipality to address affordable housing was already written into state law at the time. They pointed to the state statute giving cities and towns the authority to set their own zoning policies.

“The zoning act, even back then, required towns to zone for diversity of housing,” Podolsky said. “But a lot of towns didn't, and a lot of towns still don’t.”

A provision went into the state’s general statutes in 1984 requiring a town’s zoning regulations to “encourage the development of housing opportunities for all citizens.” By 1991, the language had been expanded to specify the need for “housing choice and economic diversity” — including housing for low and moderate income households.

The model drafted by Duffy and Podolsky to encourage affordable housing borrowed from a law that had been in place for 20 years in Massachusetts. The difference was that developers whose plans are rejected in the Commonwealth appeal to a state board made up of people from administrative agencies, while appeals in Connecticut would be heard by judges.

“That seemed like it was more palatable to more towns, that we would use an existing judicial structure with what are essentially neutral deciders in the court system,” Podolsky said.

Municipalities are beholden to the requirements of 8-30g until 10% of their housing stock is deed restricted as affordable. Once the threshold is met, developers no longer get an automatic appeal when they put forth plans that don’t meet zoning regulations.

The most recent data from the state Department of Housing shows only 31 municipalities currently meet the 10% threshold. In Southeastern Connecticut, there are three: New London, Norwich and Groton.

Places like Waterford and Pawcatuck, which have been identified by the state as opportunity-rich areas for affordable housing, have seen more interest from developers lately. Old Lyme, on the other hand, has been similarly positioned by the state as desirable, yet its affordable housing stock remains among the lowest in the region at 2%.

There has not been much activity in Old Lyme since an application for 37 units near Interstate 95 was pulled by nonprofit developers in 2018 due to what they called “intense” local opposition. Many who objected to the project said they supported the idea of affordable housing but not the location, citing traffic issues for vehicles and pedestrians.

A March analysis by Tim Hollister and Andrea Gomes of the Hinckley Allen law firm credits the law with helping to generate 8,500 units of affordable housing since its implementation in 1990.

Character and conservation

The statute is not without controversy.

Some critics of 8-30g argue the real benefits are reaped by developers who use it to build a higher number of apartments than they might otherwise get approval for, or as a threat to yield concessions in other zoning or real estate matters. In a state with 169 different cities and towns representing a deeply-ingrained home rule philosophy, the loudest cry is that 8-30g usurps local control.

A bill raised this year in the General Assembly to require a study of the effects of 8-30g – which many viewed as an attempt to weaken it – got support from suburban Fairfield County homeowners trying to preserve town character as well as statewide environmental groups looking to conserve natural resources.

The nonprofit Save the Sound organization submitted written testimony expressing concern about the costly and time-consuming process of fighting developments in environmentally sensitive areas.

Save the Sound was part of legal action by multiple commissions in East Lyme and environmental groups who have been fighting one particular development in court for decades. They want to prevent Landmark Development from following through with their 2015 plans for an 840-unit development – 252 units of which would be affordable – in the Oswegatchie Hills overlooking the Niantic River.

Save the Sound’s attorney, Christopher P. Kelly, acknowledged in his testimony that Save the Sound has prevailed in some court cases through 8-30g’s exception for public health and safety regulations, but noted the carve out does nothing to prevent litigation because only a judge can decide if the exception applies.

“Moreover, it miscasts environmentalists and housing advocates as natural opponents instead of allies in the fight to create sustainable and just communities,” Kelly said.

Save the Sound said it supports development in town centers and “transit-oriented communities” while preserving open space. A bill that was proposed this year, but died in committee, would have required towns to allow 15 units per acre as of right within a half mile of public rail, bus or ferry stations. “As of right” describes administrative approval by town staff, as opposed to going through the zoning commission and a public hearing.

According to the advocacy group DesegregateCT, there are 62 rail and bus stations in the state but only two in New London County. The stations are located in New London and Stonington.

Podolsky, when asked about opposition to the Oswegatchie Hills proposal, said a development of that size “is not typical.” But he said 8-30g has had success increasing the availability of affordable housing and slowly helping town officials realize the benefits of negotiation over litigation.

“This is not to say that you cannot have a proposal that’s inconsiderate of the environment and really is not a good idea. And so I’m not trying to say that there are no such proposals. But I think that by and large, the track record is pretty good,” he said the law he helped create.

The moratorium

The trio of men credited the addition of a moratorium system in 2000 with strengthening 8-30g. The change exempts municipalities from the law’s appeals provisions for four years if officials show they have made a certain amount of progress since 8-30g was implemented, or since they last received a moratorium.

Podolsky said those are four years during which a developer would not be able to use the statute to challenge a zoning denial. In that time, a town could seek out affordable housing developments on its own terms.

“They could actually start looking for developers and telling them ‘we will not give you a hard time with zoning if you will do a development at this location’ – rather than some other location – ‘or if you will make your development a little bit smaller,’” he said.

The state Office of Legislative Research in August reported moratoria are in effect in Brookfield, Milford, South Windsor, Suffield, and Westport. Towns previously granted moratoria are Berlin, Darien, Farmington, New Canaan, Ridgefield, Trumbull, and Wilton.

Cibes described the moratorium provision as a “way to make some progress” toward what he said is ultimately an issue of fairness.

“The idea is, it’s only reasonable and fair to enable people to live throughout the state in a home that’s affordable to them, and not be barred from a community because of zoning regulations,” he said.

e.regan@theday.com

Population, median household income and affordable housing data compiled by the Partnership for Strong Communities from the U.S. Census Bureau’s 2020 American Community Survey, 5-year estimates. The percentage of affordable housing in each town is based on the number of housing units designated as affordable under Section 8-30g. The poverty figures were compiled by CTData Collaborative and AdvanceCT (formerly the Connecticut Economic Resource Center) from the U.S. Census Bureau’s American Community Survey, 2015-2019.