Connecticut Supreme Court Puts Teeth Back into State's Affordable Housing Law

FOR IMMEDIATE RELEASE

HARTFORD, CT — The Connecticut Civil Liberties Union today hailed a unanimous State Supreme Court decision that restores the state’s affordable housing law to its original intent and strength and clarifies the role of judges who review local denials of proposals to develop affordable housing.

“”From the beginning, the purpose of the affordable housing statute has been to break down barriers that cities and towns may erect through their land-use regulations to prevent racial and economic integration,”” said Philip Tegeler, Legal Director of the Connecticut Civil Liberties Union. “”By clarifying that the key factors in affordable housing decisions are to be evaluated independently by judges, this decision will prevent barriers from being enforced.”

Connecticut’s “Affordable Housing Appeals Procedure,” originally adopted in 1989, requires that local land-use commissions justify their denial of affordable housing proposals. These agencies must support each of their reasons for denial before a local board. The board must then prove that each of these reasons is a “substantial public health and safety interest” that “clearly outweighs” the need for affordable housing in the town, and that the commission’s concerns cannot be addressed by “reasonable changes” to the development plan.

In a controversial decision involving the Town of Glastonbury in 1999, the State Supreme Court lowered the burden of proof for towns in affordable housing cases, ruling that towns should prevail so long as there was “sufficient evidence,” for each of the factors listed in the statute. The ruling prompted then-Justice Robert Berdon, in a dissenting opinion, to say that the Court had “ripped the heart out of the affordable housing statute.”

In 1999 and 2000, a Blue Ribbon Commission appointed by the Governor and other state leaders met to consider the affordable housing statute, including the burden of proof standard and the Glastonbury decision.

The legislators proposed an amendment to make it clear that on the issues of substantial interests in health and safety, need for affordable housing, and reasonable change, judges must make their own evaluation of the evidence received by the local board, rather than deferring to the views of its members.

In support of the amendment, the Connecticut Civil Liberties Union, the Connecticut Housing Coalition, and the Connecticut Fair Housing Center jointly filed a friend-of-the-court brief in the case, Quarry Knoll II Corp. v. Planning and Zoning Commission of Greenwich, arguing that judges should review local denials independently, rather than deferring to local denials if there was any reasonable basis for them.

In today’s decision, Justice Joette Katz wrote that a court reviewing an affordable housing case “must review the commission’s decision independently, based on its own scrupulous examination of the record.” A local commission must prove to the court, based on the evidence, that its decision “is based upon the protection of some substantial public interest; the public interest clearly outweighs the need for the affordable housing; and there are no modifications that can reasonably be made to the application that would permit the application to be granted . . .””

“Justice Katz’s opinion clearly settles the rules for affordable housing court cases, and in doing so does a great service to affordable housing proponents, local land use commissions, and judges who review these cases,”” said attorney Timothy S. Hollister, an ACLU cooperating attorney. “”This opinion clarifies the responsibilities of everyone involved in the process.”