Affordable Housing Advocates Look to Revive ‘Fair Share’ Bill Before End of Session

On Monday, House Bill 6611, the so-called “Fair Share” affordable housing bill was killed in committee, but State Rep. Jason Rojas, D-East Hartford, who sponsored the legislation, said he is not giving up. 

“My strategy is I am going to talk to [State Rep. Craig Fishbein, D-Wallingford] who had threatened to filibuster the bill, which is exactly why it died. I’m actually going to talk to him and see if there’s an opportunity to find some middle ground,” Rojas told CT Examiner on Thursday.

The Fair Share legislation would have assessed each town in Connecticut with a goal for affordable housing, in some cases halving or doubling housing goals under the state’s existing housing statute, 8-30g. The new goals would be based on a formula that includes town wealth, comparative median income, percentage of multifamily housing stock and percentage of poverty. 

The legislation would also create new legal avenues for nearby towns, housing organizations, developers and others to challenge towns failing to meet their “fair share,” in court.

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Rojas said towns would determine for themselves exactly how to develop their affordable housing plans and the courts would be used as the enforcement mechanism instead of state agencies.

“If we look at the history of housing in this country, we’ve always had to rely on the courts to actually help us achieve civil rights,” he said. “Part of the challenge of leaving it up to the state government is that the people who are in office can change from time to time. We didn’t want it to be subjected to political winds of change in the executive branch right whether it’s Republican governor or Democratic governor.” 

The legislation has been praised by housing advocates as a better alternative for the state than the 30-year-old 8-30g law establishing a goal of 10 percent affordable housing for every municipality. As of 2020, only 31 of Connecticut’s 169 towns have met that goal.

Fair Share has been opposed by a number of state and local leaders, including the grassroots CT169Strong which has held rallies across the state, and warns that the legislation would require a massive increase in housing construction to meet the bill’s goals.

From New Jersey to Connecticut

The bill is modeled on what advocates call the Mt. Laurel Doctrine — drawn from two landmark New Jersey Supreme Court cases, Mount Laurel I (1975) and Mount Laurel II (1983), which together decided that the state’s municipal land use regulations cannot discriminate against the poor for the purpose of housing, and ordered each town in New Jersey to plan and zone for a “fair share” of the region’s need for affordable housing. 

Adam Gordon, executive director at Fair Share Housing Center in Cherry Hill, N.J., told CT Examiner in an interview, that the New Jersey model is appropriate for Connecticut because the state shares similar governance structures and barriers to the creation of affordable housing.

“The responsibility for the equivalent fair share process there was taken back by the courts because it was evident that the state could not oversee this itself. Rather than going through a whole rigmarole like New Jersey, we crafted this, learning from their experience and just structured it from the very beginning [that] the court would have a role.”

“We have many small towns in the state, substantial suburban areas and also major cities — it’s a similar dynamic in terms of racial and economic segregation and very localized zoning decisions,” he said “The thing that is most important is that you have a real check on the unfettered power of local towns to do zoning whatever way they want and there are different ways to do that.”

Regional goals for affordable housing under the Fair Share model

Erin Boggs, executive director of Open Communities Alliance, helped craft Connecticut’s Fair Share legislation. She said H.B. 6611 took lessons from the New Jersey law, which at first charged state agencies with enforcing the law, but later gave that role to the courts.

“The responsibility for the equivalent fair share process there was taken back by the courts because it was evident that the state could not oversee this itself. Rather than going through a whole rigmarole like New Jersey, we crafted this, learning from their experience and just structured it from the very beginning [that] the court would have a role.”

Compliance and the courts

Under the bill, the courts would oversee the creation of affordable housing plans for each town. A judgement of compliance by the courts would then provide a “safe harbor” from litigation for a period of 10 years. 

More controversially, the legislation would provide standing for a number of potential aggrieved parties to challenge a town in court for noncompliance with the law including developers, nonprofit organizations, individuals qualifying for a fair share unit and other municipalities in the town’s planning region that are either exempt or have received a judgement of compliance.

Boggs said the provision would provide a form of community enforcement. 

“The hope is that you wouldn’t have very many bad actors, but if you did, you want to create a sense of regional pressure to have everybody play ball … Like any system that we have, sometimes you need a traffic cop.”

Boggs said that a court judgment of compliance could provide peace of mind to a town, but it’s expected that not all towns would pursue a judgment from the courts.

“The hope is that you wouldn’t have very many bad actors, but if you did, you want to create a sense of regional pressure to have everybody play ball … Like any system that we have, sometimes you need a traffic cop.”

“A town does not absolutely have to seek a judgment of compliance. If they have a strong plan that they’re confident in, they can just submit it to the Department of Housing and OPM. It’s possible that they could be challenged, but any such challenges will be unsuccessful if the plan is good,” she said. “If a town doesn’t actually have a good plan, they might think if they don’t want to bring scrutiny to their bad plan — they’d rather just wait and cross their fingers and hope that no one notices.”

What it would mean for existing goals and legislation

“I think the thing that people need to understand about this bill is that it has to be compared to the current regime,” said Boggs. “The current system, 8-30g, says if a town has less than 10 percent affordable housing, a developer can come to a town, propose affordable housing, and if they are rejected by the planning and zoning commission, the developer can appeal to court.”

The burden of proof, Boggs said, falls on a town to demonstrate that it has acted reasonably in a case involving affordable housing. 

“Rather than having something of the wild west — where towns are sort of just trying to not be visible to developers and then the developer puts in something that [the town] might not like very much — the towns are really in the driver’s seat,” she said. “They have incentive to proactively partner with developers and seek out developers that do the kind of housing that the town is interested in.”

According to Boggs, Fair Share legislation would subsume 8-30-g, not replace it. 

“We’ve done an estimate of how long it would take towns to reach a moratorium under 8-30g if they were accomplishing their fair share, even the over 10 years. And on average, it would take two years for towns to get to the moratorium level and then be out from 8-30g and that production would continue and keep them exempt from 8-30g as they continued along. So I think 8-30g should stay in place as well while the fair share process is being allowed to work — and so [8-30g] basically becomes irrelevant.”

In addition to 8-30g, each town in Connecticut is already completing a housing needs assessment and affordable housing plan, under 8-30j. Towns are required to complete these plans by July 2022.

“I think it would be extremely frustrating for towns that have demonstrated their commitment to developing the plans and then have the legislature change the requirements dramatically.”

Rojas said that it was possible that the towns’ 8-30j plans could be used or repurposed for the H.B. 6611 bill. 

“The plans that they were already developing would actually help them implement the number of units that when it came out of the fair share plan,” he said.

Elizabeth Gara, executive director of Connecticut Council of Small Towns, or COST, said her organization opposes H.B. 6611 in part because it would result in a duplication of time and resources that towns and the state have already spent on the requirements of 8-30j. 

“It would be a shame if all that effort went to waste and they replaced that with what appears to be a very cumbersome housing planning process when we’ve been focusing on this other existing process,” she said. “I think it would be extremely frustrating for towns that have demonstrated their commitment to developing the plans and then have the legislature change the requirements dramatically.”

Sewers and infrastructure 

Language in the legislation also treats efforts by a municipality to secure funding to expand sewer and other infrastructure needed for the development of affordable housing as evidence of compliance. 

Boggs said that if additional sewer infrastructure is needed, a town could be allowed additional time to complete their fair share. She also said there is untapped federal funding available for infrastructure projects.

“Right now, Connecticut is getting millions of dollars from the federal government in infrastructure money. The state gets to decide how to spend that money. Right now suburban towns without significant sewer infrastructure have no incentive whatsoever to go to Hartford and say, ‘Give us some of that money so we can put in a sewer.’ If they have a fair share obligation to meet, suddenly their interests change.” 

“I shouldn’t say ‘difficulty’ — it’s not an attainable goal because the amount of available land that they have will not support that type of development. I think we need to revisit that threshold and determine what is realistic for some of these communities based on the amount of land that they have that is truly buildable.”

But according to Gara, the bill “fails to consider barriers to housing development, including insufficient water and sewer capacity, and environmentally sensitive lands, such as watershed lands and wetlands.”

Gara said that the thresholds would need to consider what land is truly buildable and what housing goals were realistic. 

“Because many towns lack wastewater capacity or have environmentally sensitive lands or other land use conditions, they have difficulty meeting the 10% threshold,” she said. “I shouldn’t say ‘difficulty’ — it’s not an attainable goal because the amount of available land that they have will not support that type of development. I think we need to revisit that threshold and determine what is realistic for some of these communities based on the amount of land that they have that is truly buildable.”

The future of Fair Share

According to Boggs, the Fair Share bill could still be attached to another vehicle this session. She also emphasized the importance of passage this year. 

“Ultimately this is up to the legislature and it’s up to the governor to show some leadership on this stuff. If we can’t do it the year after massive protests all across the state in response to the killing of George Floyd, when are we going to get something done through legislation?” 

Gara told CT Examiner that “given the complexity of the bill,” she did not foresee a revival of H.B. 6611 in this year’s legislative session. 

“Ultimately this is up to the legislature and it’s up to the governor to show some leadership on this stuff. If we can’t do it the year after massive protests all across the state in response to the killing of George Floyd, when are we going to get something done through legislation?” 

“I think the best thing that the state could do would be to wait for the [towns’ affordable housing] plans to be developed which are due next year and then look at what towns have discovered in terms of barriers to housing development, and help towns begin to address those barriers, whether it’s by addressing the wastewater issues that they have or supporting more flexible approaches to zoning laws.” 

Rojas said he would continue to pursue passage of H.B. 6611 and reflected on objections to building multi-family housing that he has heard. 

“It’s interesting that people don’t seem to be concerned about developing 40 single family homes but they’re concerned about building 40 units of housing. Nobody seems to be opposed to taking 100 acres of farmland and building 40 single family homes — McMansions — but they’re worried about 40 units on maybe an one- or two-acre lot.”

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