Researcher: JSB Page 1 4/21/21
OLR Bill Analysis
sHB 6611
AN ACT CONCERNING A NEEDS ASSESSMENT AND OTHER
POLICIES REGARDING AFFORDABLE HOUSING AND
DEVELOPMENT.
TABLE OF CONTENTS:
SUMMARY
§ 1(b) — NEEDS ASSESSMENT AND DISTRIBUTION OF
RESPONSIBILITY
Requires a statewide affordable housing needs assessment; requires the unmet housing
need to be distributed among planning regions (establishing the regional need base) and
then further distributed among municipalities, considering equalized ratables, resident
incomes, and multifamily housing stock (establishing the municipal fair share base)
§ 1(h) — STATE RESPONSIBILITY FOR UNALLOCATED REGIONAL
BASE
Makes the state responsible for meeting housing needs that cannot be met locally;
specifies the state must meet this obligation with tenant-based vouchers or new
construction subsidies
§ 1(c) — MUNICIPAL FAIR SHARE GOAL
Requires municipalities, using their fair share base, to determine what types of units they
must provide development opportunities for; establishes requirements that prioritize
rental units, non-age-restricted units, and units serving the lowest income households
§ 1(d) — MUNICIPAL FAIR SHARE PLAN
Requires municipalities to develop a plan, including updating local zoning regulations, to
provide a realistic opportunity for achieving their fair share goal; plan must include two-
year, three-year, five-year, and 10-year housing development benchmarks
§ 1(a) — “AGGRIEVED PARTIES” DEFINED
Defines individuals and entities that can seek judicial review of a municipality’s
compliance with the bill’s requirements and court-ordered approval of a proposed
development; specifies who has standing to intervene in an action about municipal
compliance
§ 1(e) — JUDICIALLY-GRANTED SAFE HARBOR FOR
MUNICIPALITIES
Municipalities that comply with the planning requirement can ask the court to grant them
immunity from certain court actions (i.e., safe harbor); allows aggrieved parties to
intervene in these proceedings; requires municipalities with safe harbor status to report at
least annually to the court on their continued progress
§ 1(e) — FACTORS FOR COURT REVIEW OF COMPLIANCE 2021HB-06611-R000543-BA.DOCX
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Specifies numerous factors a court must consider when determining whether a
municipality complies with the bill’s fair share planning requirement (and is therefore
eligible for the safe harbor)
§ 1(e) — ACTIONS CONCERNING MUNICIPALITIES WITH A PLAN
THAT LACK SAFE HARBO R STATUS
Allows aggrieved parties to enforce the bill’s provisions against a municipality that
submitted a fair share plan but does not have safe harbor status
§ 1(f) — ACTIONS BROUGHT BY AGGRIEVED PARTY AGAINST
MUNICIPALITY WITHOUT A PLAN
Lists relief a court can grant an aggrieved party; requires the court to award a successful
aggrieved party costs and monetary losses attributable to the failure to create a fair share
plan
§ 1(f) — NO MORATORIUM FOR MUNICIPALITIE S THAT DO NOT
SUBMIT PLANS
Prohibits DOH from certifying a municipality’s qualification for a moratorium under CGS
§ 8-30g if it has not submitted a fair share plan
§ 1(e) & (h) — EXTENSION OF TIME AND GOAL REDUCTION
Grants the court authority to extend the amount of time a municipality has to achieve its
goal if infrastructure is insufficient; authorizes the court to reduce the goal under limited
circumstances related to topography and natural resources or phenomena; if a reduction
occurs, redistributes units throughout the planning region
§ 1(g) — RECOURSE IF STATE FAILS TO PERFORM DUTIES
Allows certain aggrieved parties to bring an action asking the court to compel the OPM
secretary or DOH commissioner to comply with the bill’s provisions
§ 1(c) & (d) — AFFIRMATIVE MARKETING PLAN AND INCOME
CERTIFICATIONS
Requires the entity managing a property to implement affirmative fair housing marketing
plans; requires income certification submissions; requires DOH to audit submissions;
makes municipalities jointly responsible for ensuring compliance
BACKGROUND
Provides information on affirmative fair housing marketing plans and inclusionary zoning
SUMMARY
The bill requires the Office of Policy and Management (OPM)
secretary, in consultation with the Department of Housing (DOH)
commissioner, by October 1, 2022, to assess the statewide need for
affordable housing; distribute the unmet need among planning
regions; and then further distribute it among municipalities in each
region. The bill specifies the factors under which these distributions
must be made. If the statewide need cannot be fully met by changes at
the local level, the state is responsible for providing housing vouchers
or construction subsidies to ensure that the needed units are made 2021HB-06611-R000543-BA.DOCX
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available.
The bill requires each municipality to determine the number and
type of units that need to be built to meet its assigned goal, using
parameters the bill sets. The bill requires municipalities to prioritize
rental units, non-age-restricted units, and units serving the lowest
income households. Municipalities must develop a 10-year plan for
meeting the goal. In limited circumstances, the goal may be reduced,
or the deadline extended, if meeting them is infeasible. Newly
developed units must be affirmatively marketed to ensure a diverse
population of residents.
The bill gives the Superior Court’s Hartford judicial district land use
litigation docket responsibility for adjudicating claims brought by
private parties (e.g., nonprofits and developers) concerning state and
municipal compliance. Municipalities that provide a realistic
opportunity for developers to build units that would help them meet
their goal are subject to more limited court oversight. If the court
determines a municipality is not in compliance, it can, among other
things, order the local zoning authority to approve a development or
appoint an expert to form a plan on a municipality’s behalf.
EFFECTIVE DATE: October 1, 2021
§ 1(b) — NEEDS ASSESSMENT AND DISTRIBUTION OF
RESPONSIBILITY
Requires a statewide affordable housing needs assessment; requires the unmet housing
need to be distributed among planning regions (establishing the regional need base) and
then further distributed among municipalities, considering equalized ratables, resident
incomes, and multifamily housing stock (establishing the municipal fair share base)
The bill requires the OPM secretary, in consultation with the DOH
commissioner, by October 1, 2022, to assess the statewide need for
affordable housing and then allocate responsibility for meeting that
need to each planning region (for these purposes, the regions
represented by the Metropolitan Council of Governments (COG) and
Western COG are grouped together as one region). This is the
“regional need base” determination under the bill, which is the
distribution of responsibility for “fair share units” by region. 2021HB-06611-R000543-BA.DOCX
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Regional Need Base
The bill requires the OPM secretary and DOH commissioner, by
October 1, 2022, to allocate the statewide need for fair share units by
region. The regional need base is based on:
1. the Comprehensive Housing Affordability Strategy data set
published by the U.S. Department of Housing and Urban
Development (HUD), or a similar source; and
2. the number of people or families in the state with an income of
30% or less of the area median income (AMI) who spend more
than 50% of their annual income on housing, as determined by
DOH.
Municipal Fair Share Base
Also, by October 1, 2022, the OPM secretary and DOH
commissioner must allocate a portion of each regional need base to
each municipality in the region (i.e., establish the municipal fair share
base). No allocation can be made to a municipality in which more than
20% of the population is below the federal poverty threshold.
The allocation must be made considering:
1. the municipality’s ratable real and personal property
(residential, apartment, commercial, industrial, public utility,
and vacant land), as reflected by its equalized net grand list, as
determined for purposes of calculating educational equalization
grants; and
2. based on decennial U.S. Census data or a similar source, (A)
median income differences among municipalities in the region
and (B) the percentage of each municipality’s population that is
below the federal poverty threshold or that lives in “multifamily
housing” (i.e., a building with at least three units).
A municipality’s fair share base must be increased if, in comparison
to other municipalities in the region, it has more ratable real and
personal property; a higher median income; a lower percentage of its 2021HB-06611-R000543-BA.DOCX
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population below the federal poverty threshold; or a lower percentage
of its population living in multifamily housing.
The bill specifies that, for up to 10 years after a municipality submits
its fair share plan (see below), its fair share base cannot exceed 20% of
the occupied dwelling units in the municipality (i.e., a municipality
does not need to increase its occupied housing stock by more than 20%
in a 10-year period).
§ 1(h) — STATE RESPONSIBILITY FOR UNALLOCATED
REGIONAL BASE
Makes the state responsible for meeting housing needs that cannot be met locally; specifies
the state must meet this obligation with tenant-based vouchers or new construction
subsidies
If there are still unallocated units (i.e., an unmet need) after the
OPM secretary and DOH commissioner allocate a portion of each
region’s regional need base to each municipality in the region, then the
state must meet the need by:
1. issuing new mobile (tenant-based) housing vouchers to address
half of the unmet need and
2. offering subsidies for the construction of new affordable
housing in which 30% of the dwelling units are affordable to
very low-income households and are not age-restricted.
The bill specifies that only dwelling units affordable to very low-
income households count toward the state’s new construction
obligation. But the bill also specifies that the units may be resident-
owned “affordable housing units.”
Under the bill, an “affordable housing unit” is a dwelling unit
conveyed by a deed containing a covenant or restriction (“restrictive
deed”) that requires that the unit be sold or rented at or below a price
that will preserve the unit as housing for a person or family whose
income is no more than 80% of the lesser of the state median income
(SMI) or AMI, as determined by HUD.
Under the bill, “very low income” households are those whose 2021HB-06611-R000543-BA.DOCX
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income is no more than 50% of the lesser of the SMI or AMI, as
determined by HUD.
The bill further prohibits the state from meeting its obligation by
providing subsidies for new construction in:
1. a municipality in which at least 20% of the population is below
the federal poverty threshold or
2. a census tract in which the percentage of the population that is
below the federal poverty threshold is higher than the
percentage of such population in the state.
The bill does not specify whether, aside from the above restrictions,
the units must be built in the region with unmet need if the state is
meeting an unmet need through new construction subsidies.
The bill allows developers building new units using these state
construction subsidies to seek a court order providing for local
planning or zoning approval, as applicable. (The bill does not provide
for similar relief from other local oversight such as inland wetlands
review.) Developers must apply to the Superior Court’s Hartford
judicial district land use litigation docket (“land use litigation docket”).
The court does not need to find the proposed development to be in
compliance with local regulations; it must only determine whether the
project furthers the bill’s purposes.
§ 1(c) — MUNICIPAL FAIR SHARE GOAL
Requires municipalities, using their fair share base, to determine what types of units they
must provide development opportunities for; establishes requirements that prioritize
rental units, non-age-restricted units, and units serving the lowest income households
After the state establishes the municipal fair share base for each
municipality, as applicable, each municipality must calculate its “fair
share goal.” The goal must be formulated under the bill’s parameters,
which require municipalities to prioritize rental units, non-age-
restricted units, and units serving the lowest income households.
Certain unit types count as more than one unit, allow ing a
municipality to plan for fewer total dwelling units while meeting their 2021HB-06611-R000543-BA.DOCX
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fair share base quota.
The bill requires the municipal fair share goal to be recalculated
every 10 years according to the procedure the OPM secretary and
DOH commissioner use to calculate the regional and municipal fair
share bases. (It is unclear what this provision requires and who must
do the recalculation.)
Caps on Unit Types
The fair share goal must be set so that no more than (1) 40% of fair
share units are resident-owned affordable housing units (i.e., at least
60% of the affordable housing units must be rentals) and (2) 15% of
rental units are “age restricted units” (i.e., units in which no more than
one resident under age 55 may live).
Minimum Unit Type Requirements
The fair share goal must provide for at least:
1. 20% of the fair share units to be conveyed by restrictive deeds
preserving the units for “extremely low-income” households
(i.e., a person or family whose income is no more than 30% of
the lesser of the SMI or AMI, as determined by HUD) and
2. 65% of the fair share units to be conveyed by restrictive deeds
preserving the units for “very low-income” households (i.e.,
income is no more than 50% of the lesser of the SMI or AMI).
Additionally, the bill requires certain percentages of age-restricted
rental units and rental units for extremely and very low-income
households to meet certain standards. Specifically, (1) at least 40% of
the units must contain at least two bedrooms; (2) at least 25% of the
units must contain at least three bedrooms; and (3) no more than 10%
of the units can be studio or efficiency units.
Bonus Points for Bedrooms in Certain Unit Types
The bill specifies that the number of units required by the municipal
fair share base quota can be met with fewer units if the unit types built
meet certain specifications. These “bonus” points are awarded to each 2021HB-06611-R000543-BA.DOCX
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bedroom in a qualifying unit.
Each bedroom in a rental unit that is conveyed by a restrictive deed
preserving the unit for very low-income households qualifies for three-
fourths of a bonus point if the unit is not age restricted and has at least
two bedrooms.
Each bedroom in the following unit types qualifies as one additional
fair share unit (i.e., one bonus point): (1) each bedroom in a rental unit
that was conveyed by a restrictive deed preserving the unit for
extremely low-income households, if the unit is not age restricted and
has at least two bedrooms, and (2) each bedroom in non-age-restricted
permanent supportive housing.
Under the bill, “supportive housing” is affordable housing for
people or families who qualify for assistance under a law requiring
state agencies to establish affordable, permanent, supportive housing
initiatives (CGS § 17a-485c).
Unit Location
Under the bill, a substantial portion of fair share units, as
determined by the OPM secretary and the DOH commissioner, must
be located in census tracts where the percentage of the population
below the federal poverty threshold is no higher than the overall
percentage in the municipality.
§ 1(d) — MUNICIPAL FAIR SHARE PLAN
Requires municipalities to develop a plan, including updating local zoning regulations, to
provide a realistic opportunity for achieving their fair share goal; plan must include two-
year, three-year, five-year, and 10-year housing development benchmarks
The bill requires each municipality that has been allocated part of
the regional need base to submit, by October 1, 2023, a municipal fair
share plan to the OPM secretary and DOH commissioner.
Under the bill, a “municipal fair share plan” is the municipality’s
plan to achieve its municipal fair share goal. To be considered
complete, it must include the following:
1. two-year, three-year, five-year, and 10-year development 2021HB-06611-R000543-BA.DOCX
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benchmarks and
2. amended zoning regulations and an updated local plan of
conservation and development (amended to create a “realistic
opportunity” (see below) for achieving the municipality’s fair
share goal).
Components for Creating Realistic Opportunity for Achievement
A municipal fair share plan cannot be considered to create a
“realistic opportunity” for the achievement of the municipal fair share
goal unless it:
1. in the case of an affordable housing development for low- and
moderate-income people or families (the bill does not define
these terms), requires that the development be proposed on a
site that is (A) capable of being developed in accordance with
such municipality’s regulations; (B) not subject to any deed
restriction, historic district regulation, or inland wetlands
regulation; and (C) not already occupied (absent an agreement
to move the existing use occupying the site);
2. in the case of an affordable housing development for low- and
moderate-income people or families, proposes a percentage of
fair share units that is economically feasible, in accordance with
guidance issued jointly by the OPM secretary and DOH
commissioner;
3. in the case of any other development, provides for municipal
funding if other housing subsidies are not available (the bill
specifies that municipalities cannot use tenant-based housing
vouchers to meet their goal); and
4. includes two-year, three-year, five-year, and 10-year
development benchmarks that, at least 18 months before any
such benchmark is to be met, (A) designate specific parcels
within the municipality for affordable housing development; (B)
specify the income level of the population being targeted for
any such development; and (C) identify the developer of each of 2021HB-06611-R000543-BA.DOCX
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these parcels.
The bill specifies additional factors that the court must consider if it
is determining whether a municipality’s fair share is in compliance
with the bill’s provisions (see § 1(e) below, “FACTORS FOR COURT
REVIEW OF COMPLIANCE” ).
§ 1(a) — “AGGRIEVED PARTIES” DEFINED
Defines individuals and entities that can seek judicial review of a municipality’s
compliance with the bill’s requirements and court-ordered approval of a proposed
development; specifies who has standing to intervene in an action about municipal
compliance
Under the bill, an “aggrieved party” is:
1. a developer seeking to construct dwelling units that would
count toward a municipality’s municipal fair share goal,
2. a nonprofit organization advocating (A) for a municipality’s
compliance with its fair share requirements or (B) on behalf of
lower- and moderate-income households in a planning region,
3. an individual who would qualify for a fair share unit, or
4. a municipality in the same planning region that (A) is not
required to create a fair share plan or (B) has safe harbor status
and is meeting relevant benchmarks.
§ 1(e) — JUDICIALLY-GRANTED SAFE HARBOR FOR
MUNICIPALITIES
Municipalities that comply with the planning requirement can ask the court to grant them
immunity from certain court actions (i.e., safe harbor); allows aggrieved parties to
intervene in these proceedings; requires municipalities with safe harbor status to report at
least annually to the court on their continued progress
If a municipality submits its fair share plan on time and with the
required components, and the plan creates a realistic opportunity for
the achievement of the municipal fair share goal within 10 years (see §
1(d) above, “Components for Creating Realistic Opportunity for
Achievement”), the Superior Court may find that the municipality’s
compliance qualifies it for the bill’s safe harbor provisions (see
description of required considerations, below). For this protection, a 2021HB-06611-R000543-BA.DOCX
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municipality must bring an action in Superior Court, seeking a
compliance determination on the land use litigation docket.
The safe harbor generally prevents aggrieved parties from bringing
an action asking the court to find that the municipality is failing to
create a realistic opportunity for the needed housing to be built. Under
the bill, the safe harbor is generally effective for up to 10 years or the
duration of the fair share plan (presumably the shorter of the two).
Interventions by an Aggrieved Party
An aggrieved party may intervene in the action to oppose the
court’s compliance determination if the intervenor believes that the
municipal fair share plan does not create a realistic opportunity for the
achievement of the municipal fair share goal within 10 years.
Reporting Requirement and Continued Jurisdiction
If a court grants the safe harbor, it must require the municipality to
submit reports, at least annually, to the court and the OPM secretary.
Each report must contain all material facts about the municipality’s
progress toward fulfilling its fair share plan, including the benchmarks
the plan set. Both the municipality and OPM secretary must publish
the reports on their respective websites.
The bill specifies that the court continues to exercise jurisdiction
over the matter, even after the safe harbor is granted, and therefore it
can:
1. receive and consider reports submitted by the municipality;
2. hear any motion brought by an aggrieved party claiming the
municipality has (A) failed to fulfill the requirements of its
municipal fair share plan according to the benchmarks set or (B)
otherwise materially failed to comply with the plan;
3. adjudicate this motion and order relief it deems appropriate to
ensure prompt compliance and remedy any failure; and
4. grant an extension for achieving the plan of up to 10 years, as 2021HB-06611-R000543-BA.DOCX
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described below, if it finds the interests of justice require.
§ 1(e) — FACTORS FOR COURT REVIEW OF COMPLIANCE
Specifies numerous factors a court must consider when determining whether a
municipality complies with the bill’s fair share planning requirement (and is therefore
eligible for the safe harbor)
Under the bill, if a court is considering whether a municipality is
complying with the bill’s requirements for creating a realistic
opportunity for achieving its fair share goal, it must consider these
factors:
1. substantial evidence of the realistic potential for developing the
necessary number of fair share units;
2. bona fide amendments to zoning regulations, including the
adoption of inclusionary zoning provisions (see
BACKGROUND) and other changes to policies and procedures
that create a realistic opportunity for the development of
required fair share units;
3. a preponderance of evidence that these regulations, policies,
and procedures demonstrate realistic potential for the
development of affordable housing;
4. memoranda of understanding or other similar agreements
between a municipality and any developer seeking to construct
affordable housing within such municipality, which (A) identify
specific parcels to be developed and detailed affordability
components and the number of bedrooms to be counted as fair
share units and (B) concern the transfer of municipally-owned
property;
5. developers’ applications for the federal Low-Income Housing
Tax Credit program or other state or federal affordable housing
funding sources, as well as evidence of the municipality’s
support of the application (including any zoning approval);
6. efforts by the municipality to secure funding to expand sewer
and other infrastructure related to affordable housing 2021HB-06611-R000543-BA.DOCX
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development, including grant applications and bonding
measures;
7. a finding by the DOH commissioner, through a random audit,
that developers seeking to construct affordable housing in the
municipality are operating under current and effective
affirmative marketing plans;
8. evidence that the municipality committed municipally-owned
property and other municipal resources to support achieving
the municipal fair share goal; and
9. any provision of the municipal fair share plan or any other
evidence that the court deems relevant.
Municipal Burden of Proof
In an action to determine a municipality’s compliance with the bill’s
provisions, a municipality bears the burden of establishing that its fair
share plan contains the required components (e.g., it includes
developable sites; the municipality has provided funding if necessary;
and the required percentage of fair share units is economically feasible,
as described above; see “Components for Creating Realistic Opportunity
for Achievement”).
§ 1(e) — ACTIONS CONCERNING M UNICIPALITIES WITH A PLAN
THAT LACK SAFE HARBOR STATUS
Allows aggrieved parties to enforce the bill’s provisions against a municipality that
submitted a fair share plan but does not have safe harbor status
If a municipality has complied with the planning requirement,
including submitting it to the OPM secretary, but has not sought safe
harbor status or it has not yet been granted, then an aggrieved party
can bring an action in Superior Court on the land use litigation docket
for a determination that the plan does not create a realistic opportunity
for achieving the municipality’s fair share goal in 10 or fewer years and
therefore is not in compliance.
If the municipality is deemed in compliance, it is granted the same
safe harbor as other municipalities found in compliance and is subject 2021HB-06611-R000543-BA.DOCX
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to the same continued judicial oversight (including the reporting
requirement).
If the municipality is found to be out of compliance, the court can
(1) order payment of the aggrieved party’s attorney’s costs and fees
and (2) provide other relief as deemed appropriate to ensure prompt
compliance and remedy any failure. If the aggrieved party is a
prospective developer, the court may issue an order requiring that the
municipality’s planning commission, zoning commission, or combined
planning and zoning commission, as applicable, grant the approval
necessary to allow the development to proceed. The court cannot order
this approval if the municipality demonstrates that the development
would present a significant risk to public health or safety and could
not be reasonably modified to avoid this risk. (Different requirements
apply to actions brought by developers about a municipality that did
not submit a plan (see § 1(f) below, “Prospective Developer Seeking
Project Approval”).
Regardless of the judgement or remedy, the bill specifies that the
court continues to exercise jurisdiction over the matter to (1) enforce
the judgment or order and (2) receive and consider any reports that it
requires the municipality to submit.
§ 1(f) — ACTIONS BROUGHT BY A GGRIEVED PARTY AGAIN ST
MUNICIPALITY WITHOUT A PLAN
Lists relief a court can grant an aggrieved party; requires the court to award a successful
aggrieved party costs and monetary losses attributable to the failure to create a fair share
plan
It appears that the following provisions may apply regardless of
whether the subject municipality submitted a fair share plan, though
the specifically mentioned remedies appear to refer to municipalities
that did not submit a plan.
Private Enforcement Action
The bill specifies that an aggrieved party can bring an action in
Superior Court on the land use litigation docket for a judgement
determining that a municipality is not in compliance with the bill’s
provisions. The court can order any relief it deems appropriate to 2021HB-06611-R000543-BA.DOCX
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ensure prompt compliance, including:
1. temporary injunctive relief;
2. ordering the timely creation and submission of a compliant
municipal fair share plan; and
3. appointing one or more independent qualified individuals with
expertise in land use to create a municipal fair share plan for the
municipality.
If the aggrieved party is successful in an action brought, the court
must award the party (1) attorney’s costs and fees, including the costs
of appellate review, remands, or other judicial proceedings and (2) any
monetary losses attributable to the municipality’s failure to create a
municipal fair share plan such as the lost opportunity to develop fair
share units for sale.
Prospective Developer Seeking Project Approval
The bill gives developers seeking to construct units that would
count toward the achievement of a municipality’s municipal fair share
goal the right to file an action in Superior Court on the land use
litigation docket, seeking approval to allow his or her proposed
development to proceed.
The court may issue an order requiring that the municipality’s
planning commission, zoning commission, or combined planning and
zoning commission, as applicable, grant the approval necessary to
allow the proposed development to proceed if the court finds that:
1. the development is not age restricted,
2. at least 15% of the dwelling units in the development are
affordable to very low-income households,
3. at least 40% of the affordable dwelling units have two or more
bedrooms, and
4. at least 25% of the affordable dwelling units have three or more 2021HB-06611-R000543-BA.DOCX
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bedrooms.
But the court cannot order such approval if the municipality
demonstrates that the development would present a significant risk to
public health or safety and could not be reasonably modified to avoid
such risk.
§ 1(f) — NO MORATORIUM FOR MU NICIPALITIES THAT DO NOT
SUBMIT PLANS
Prohibits DOH from certifying a municipality’s qualification for a moratorium under
CGS § 8-30g if it has not submitted a fair share plan
The bill provides that if a municipality does not submit a plan, it is
ineligible to receive a moratorium from the Affordable Housing Land
Use Appeals Procedure (i.e., CGS § 8-30g) for at least two years after
the plan is submitted.
The procedure requires municipal land use agencies to defend their
decisions to reject affordable housing development applications or
approve them with costly conditions (i.e., the procedure places the
burden of proof on municipalities). The law requires developments to
be approved unless specific criteria are met (non-compliance with
zoning regulations is not a permitted reason). A municipality is
eligible for a temporary suspension of procedure (i.e., moratorium)
each time it shows it has added a certain number of affordable housing
units over the applicable time period.
§ 1(e) & (h) — EXTENSION OF TIME AND GOAL REDUCTION
Grants the court authority to extend the amount of time a municipality has to achieve its
goal if infrastructure is insufficient; authorizes the court to reduce the goal under limited
circumstances related to topography and natural resources or phenomena; if a reduction
occurs, redistributes units throughout the planning region
Extension of Up to 10 Years
In any action concerning a municipality’s compliance with the bill’s
requirement to create a realistic opportunity to achieve its fair share
goal, the bill allows a court to grant an extension of up to 10 years
beyond the duration of the fair share plan. It can only do so if the
municipality demonstrates that creating a realistic opportunity to
achieve its municipal fair share goal would be infeasible without 2021HB-06611-R000543-BA.DOCX
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substantial additional infrastructure (excluding for public
transportation) that is required to avoid risks to public health or
address physical infeasibility, as determined by such court. The bill
requires the municipality to demonstrate the infeasibility of creating
such a realistic opportunity with specific evidence of any such risk to
public health or physical infeasibility.
Reduction in Goal (i.e., Required Units) and Redistribution
In any action concerning a municipality’s compliance with the bill’s
requirement to create a realistic opportunity to achieve its goal, the bill
allows the court to reduce a municipality’s fair share goal if the
municipality establishes by clear and convincing evidence,
substantiated by expert scientific proof, that (1) such reduction is
necessary (a) due to topographical limitations or (b) in order to protect
extraordinary natural resources, such as rare or unique natural
phenomena, and (2) an extension of time (see above) would be
insufficient to address such limitations or risk to natural resources.
If the municipal fair share base is reduced by the court, the number
of fair share units represented by such reduction must be allocated to
each of the other municipalities in the same planning region in
proportion to the regional need base, excluding the municipality for
which the municipal fair share base has been reduced. (The bill does
not specify whether impacted municipalities must update their plans
to reflect the new fair share base.)
§ 1(g) — RECOURSE IF STATE FAILS TO PERFORM DUTIES
Allows certain aggrieved parties to bring an action asking the court to compel the OPM
secretary or DOH commissioner to comply with the bill’s provisions
If the OPM secretary or DOH commissioner fail to perform any
required duty, any aggrieved party other than a municipality may
bring an action on the Superior Court’s land use litigation docket for
an order (1) requiring the secretary or commissioner to comply with
the bill’s provisions and (2) granting other relief the court deems
necessary or appropriate to ensure prompt compliance, including
permanent or temporary injunctive relief and attorney’s costs and fees. 2021HB-06611-R000543-BA.DOCX
Researcher: JSB Page 18 4/21/21
If multiple nonprofit advocacy organizations file motions to
intervene, the court may certify them as a class (i.e., make it a class
action suit).
§ 1(c) & (d) — AFFIRMATIVE MARKETIN G PLAN AND INCOME
CERTIFICATIONS
Requires the entity managing a property to implement affirmative fair housing marketing
plans; requires income certification submissions; requires DOH to audit submissions;
makes municipalities jointly responsible for ensuring compliance
Marketing Plan
For any development containing fair share units, the municipality
must require that the developer constructing these fair share units, or
the property management company for such these units, submit to the
municipality and the DOH commissioner an affirmative marketing
plan. This plan must comply with the affirmative fair housing
marketing plan requirements applicable to developers receiving
financial assistance under many state housing programs (see
BACKGROUND) . Additionally, the municipality must specify the
process by which it will verify that the affirmative marketing plan is
carried out.
Each fair share unit developer, or property management company
for the units, must submit a copy of the plan to the municipality and
DOH commissioner. The commissioner must conspicuously post the
plan on the DOH website within a month of receiving it.
Compliance
Under the bill, the developer or management company must
biennially certify the income of fair share unit residents (presumably
only new residents, to ensure they comply with income restrictions
when they move into a unit). Municipalities must review the
certifications to monitor progress toward achieving their fair share
goal.
The DOH commissioner, at least once every five years, must
conduct a random audit of each municipality’s fair share units to
determine whether the affirmative marking plan procedures were
effective and the income certifications are accurate. The audit findings 2021HB-06611-R000543-BA.DOCX
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must be posted on DOH’s website.
If a developer, property management company, or municipality
fails to comply with the bill’s marketing plan or income certification
requirements, or the incomes certified are inaccurate, the municipality
is deemed out of compliance and is not entitled to the safe harbor the
bill affords when plans create a realistic opportunity for achieving the
municipal fair share goal.
BACKGROUND
Provides information on affirmative fair housing marketing plans and inclusionary
zoning
Affirmative Fair Housing Marketing Plans (CGS § 8-37ee)
State law requires developers participating in certain state programs
to affirmatively market their units to ensure a diverse population of
residents (see also Conn. Agencies Regs. §§ 8-37ee-1 to 8-37ee-314).
Specifically, the law requires them to develop plans outlining how
they will market their housing units to an applicant pool that includes
residents of municipalities with relatively high populations of those
that would be “least likely to apply” (i.e., groups in the housing
market area that are least likely to apply for the housing because of its
location and other factors, without special outreach efforts). At least
20% of the units must be targeted to the groups identified as least
likely to apply.
Plans must include information on (1) how occupants will be
selected and (2) the evaluation process used to determine if the
marketing is successful. Developers must report to DOH on an
ongoing basis, both before and after initial occupancy, providing,
among other things, racial and economic data from both residents and
those on the waiting list, as applicable.
Inclusionary Zoning (CGS § 8-2i)
Inclusionary zoning generally requires developers to make a
percentage of units in new developments available to low- and
moderate-income households. In return, developers receive non-
monetary compensation in the form of density bonuses, zoning 2021HB-06611-R000543-BA.DOCX
Researcher: JSB Page 20 4/21/21
variances, or expedited permits that reduce construction costs.
Inclusionary zoning regulations may also require a developer to
contribute to a housing trust fund.
COMMITTEE ACTION
Planning and Development Committee
Joint Favorable Substitute
Yea 17 Nay 9 (03/31/2021)