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STAMFORD – During a public hearing on proposed changes to the city charter – a matter that has stirred controversy statewide – a Yale Law School memo unexpectedly surfaced.
A member of a housing advocacy group raised it during the hearing hosted by a Board of Representatives committee.
It was not entirely clear what prompted a professor from Yale to enter the debate over the once-a-decade revision of Stamford’s charter, or why the memo appeared when it did.
The memo, dated July 18, the same day as the hearing, was about a proposal to change the charter to allow Stamford residents to protest zoning decisions by gathering 300 signatures from landowners living anywhere in the city.
The authors of the memo wrote that the Stamford Charter Revision Commission had no authority to expand protest petitioning, and that the change was contrary to the law.
But the memo was written more than a month after the state legislature had already passed a law in June prohibiting Connecticut towns from changing their charters on a whole slate of zoning matters, including protest petitions.
That law made headlines across Connecticut after Stamford Mayor Caroline Simmons, a former state representative, apparently asked colleagues in Hartford to slip it into a major bond bill just before the legislature closed for the session. The prohibitions on charter changes passed without debate as part of the bond bill.
The law was met with an outpouring of anger from voters in Stamford directed toward Simmons for preventing a vote on the changes to how the Stamford handles zoning and development — the city’s hottest current debate.
Now, more than a month later, a Yale professor has released a memo defending the law for preventing the city from stumbling into “bad policy,” by expanding the petition process.
So how did the memo come to be?
Housing advocates and the memo
Christie Stewart, director of Fairfield County Center for Housing Opportunity, told CT Examiner that her organization often calls Yale Law School’s Community and Economic Development Clinic, run by Professor Anika Singh Lemar, to ask for advice and interpretation.
Stewart said her organization “did not commission a report or ask for any sort of memo” on zoning-related charter proposals in Stamford, but “we do call Anika and their experts often with questions.”
In May, the director at Fairfield County Center for Housing Opportunity called Lemar to ask about the protest petition proposal by the Stamford Charter Revision Commission, Stewart said.
“My understanding is that we were one of a few people who called to ask and so she looked into it and shared the findings with us,” Stewart said.
The clinic run by Lemar provides legal services to “organizations seeking to advance economic opportunity,” according to its website, with clients that include affordable housing developers, community development financial institutions, fair housing advocates, and neighborhood associations.
Lemar said she was approached by Aicha Woods at the Fairfield County Center for Housing Opportunity for advice, not legal counsel.
“I do not represent them; I am not their lawyer,” said Lemar, wife of New Haven Democratic State Rep. Roland Lemar. “The clinic sometimes acts as a think tank, writing reports and memos on topics of broad interest.”
The memo was written by law students Charles Scharf and Jungi Hong.
“I supervised and stand by their work,” Lemar said.
‘Terrible public policy’
Scharf and Jungi wrote that the proposed expansion of protest petitioning does not comply with the special act that created the city charter, or with state statutes. They said the Charter Revision Commission used an inappropriate statute to cite its authority to expand protest petitioning.
The charter now allows 300 signatures from landowners citywide to protest a zoning change that applies to two or more zones. The commission proposed that 300 citywide signatures be the requirement no matter how many zones are affected, since residents anywhere in the city can be affected by traffic, parking and neighborhood congestion, loss of green space, and other conditions resulting from a development.
But, the authors wrote, the Supreme Court has decided “that the purpose of protest provisions is to protect owners who object to a change that will affect their property.”
The proposal would have “subjected the city to legal challenge on multiple fronts,” the memo states.
Members of the Charter Revision Commission say that the five mayoral appointees who comprise the Zoning Board already have enormous power, and the revisions would provide a better balance for residents fighting the effects of big development. But according to Scharf and Jungi, protest petitions ,across the country, are generally used to block multifamily housing.
“At public hearings, residents have complained the signature proposal is ‘unquestionably designed to make it far more difficult to get developments approved,” say Scharf and Jungi in the memo.
Opposing this view are residents who have complained that it is difficult to petition under the existing requirement that they gather signatures from 20 percent of the landowners within 500 feet of the development site, or 100 residents, whichever is fewer. That is not possible when developers own large swaths of their neighborhoods, residents have said, since they cannot gather signatures to protest a development when the adjoining properties are owned by the developer.
Lemar told CT Examiner that press coverage and the political debate in Stamford “completely missed that the proposed charter revisions were illegal … and ignored the fact that most states have done away with protest petitions generally because they are quite terrible public policy.”
That prompted her interest, Lemar said, and she shared the memo with anyone who requested it, including Steve Mednick, one of two attorneys advising the Stamford Charter Revision Commission.
“We wrote the memorandum because I really wanted to understand what was going on and, once I did, I thought it was important that other people understood it, too,” Lemar said.
Lawyers don’t do policy
Mednick, the Stamford Charter Revision Commission attorney along with attorney Richard Roberts, said it is not the job of attorneys to determine policy.
“Yale could have testified before the commission on whether it was good or bad policy, but we did not see them there,” Mednick said. “It’s not clear what the purpose of the Yale paper is, coming late in the process after an issue that has been mooted by the state.”
The memo “is framed in broad terms where the authors say the changes do not comply with the Special Act that established the charter, or the general statutes, and it narrowly concludes that an expanded protest petition would be subject to legal challenge,” Mednick said. “It doesn’t take into account Home Rule.”
The Special Act was adopted in 1953. But in 1957 the state adopted the law of Home Rule, which allows municipalities to write and adopt their own charters and amend existing charters.
“The way Home Rule works is that towns have no inherent powers locally. They have those powers expressly granted to them by the state, but they also have those powers incident to or implied by the power granted to them,” Mednick said. “The blanket argument in the memo that the commission’s proposals are illegal doesn’t carry water, because there is no analysis of Home Rule.”
Stamford’s Special Act provides a petition provision, and “provisions have been amended over the years with no challenge, no criticism,” Mednick said.
“In our proposals, we have stronger legal arguments in some cases and weaker legal arguments in other cases, but there was nothing the Charter Revision Commission proposed that was not rooted in the law of Home Rule,” Mednick said. “A court can consider a number of things and say that what we believe was an implied power was not implied – that’s fair game. But if someone is going to say something is not legal, show us a case.”
In Mednick’s view, the most cogent argument made in the Yale memo is that the Charter Revision Commission proposed a new type of petition.
“But you could argue that if you have the authority to petition, why can’t you, under Home Rule, establish a new category of petition? It falls within the express grant of authority,” Mednick said.
Has development been hurt?
About half a dozen protest petitions have been filed in recent years, and half made it to the Board of Representatives to consider for appeal, Mednick said.
“The question to ask is, has development failed in that time? Or has development moved forward?” Mednick said.
In contrast, Simmons has argued that expanded protest petitioning would have stifled development, and in a January 2022 email Simmons wrote that she wanted to eliminate Stamford’s petitioning process altogether.
Charter Revision Commission members have said their goal was to make it easier for residents to appeal zoning decisions by petition, to provide more public hearings where residents could comment on development plans, and to improve public noticing so they will be more informed about upcoming projects.
They also proposed to require a greater number of votes before the city could take private property by eminent domain, and before public land could be sold.
Those changes now are prevented by the new state law passed with Simmons’ support.
The Charter Revision Commission must issue its final report to the Board of Representatives by mid-August. The board has the rest of the month to hold another hearing and discuss the remaining items in the report. That will be followed by board votes on which items will go on the ballot, and whether the items will go before Stamford voters this November or in November of next year.