[OPINION] Legislative Watch II: “Fair Share” Bill Debated In Hartford

As chair of Westport’s Planning & Zoning Commission, Danielle Dobin keeps an eye on Connecticut’s state legislature.

There’s a lot going on in Hartford. Here — writing as a private citizen — is what Danielle sees and hears: 

On Tuesday (February 28), the Housing Committee will discuss HB 6633: “An Act Concerning a Needs Assessment & Fair Share Plans for Municipalities to Increase Affordable Housing.” (Click here to see.)

This bill would profoundly impact Westport. It is complicated. Here is a brief synopsis, and my thoughts.

Zoning power in Connecticut is derived from the state Zoning Enabling Act, which encourages communities to plan for the thoughtful and ordered development of land.

The proposed bill responds to the statewide housing affordability crisis by requiring almost every town and city to revise their zoning code. It would make development of “affordable and extremely affordable” housing the primary purpose of a zoning code via adoption of a 10-year plan to affirmatively zone for each municipality’s “Fair Share” of their region’s to-be-determined need for affordable/deeply affordable housing.

Essentially, “affirmatively zoning” means providing private developers with an economic incentive to create affordable and extremely affordable units. This would permit a far greater density of market rate units to offset the cost of creating affordable and extremely affordable units with 40-year deed restrictions.

If this proposal is adopted, a community’s failure to adopt an appropriate Fair Share plan (as approved by the state), or failure to meet milestones in the form of actual certificates of occupancy for affordable and extremely affordable units developed every few years, would result in automatic default zoning of as-of-right multifamily throughout an entire town, with 20 units as-of-right permitted anywhere there’s a sewer.

This default zoning would eliminate single family zoning throughout the entire town. The predicted “Fair Share” for Westport – based on the Open Communities Alliance’s website Fair Share map (click here to see) is 1,808 new affordable and extremely affordable units, far more units than required for compliance with state Statute 8-30(g).

A “Fair Share” map. The darker the blue, the more units of affordable housing are needed.

“Interested parties” would be encouraged to sue towns to show a lack of compliance with Fair Share zoning, with towns responsible for all legal fees for advocates and developers.

My personal opinion:  This proposal is well intentioned but ill-considered, and would be extremely harmful to the state. If adopted, Fairfield County would be flooded with luxury market rate units, but adoption of this proposal will not result in the development of an impactful number of affordable or extremely affordable housing units in most of the state, or even Fairfield County.

Municipalities all over the state will be bankrupted by legal fees, taking money away from education, public works, and public assistance.

This proposal is reductive. It assumes that lack of development only results from zoning, when the reality is far more complicated.

Although we live in a free market economy, this proposal forces individual towns to be responsible for lack of development, when the real reasons for the lack of development of most market rate — much less affordable and extremely affordable units — often relates to economic factors (high cost of land, materials, money), lack of infrastructure, or lack of any demand for market rate multifamily to offset cost of affordable units.

For example, in Westport hundreds of multiple mixed income units have been approved but not built, for a variety of reasons: developers are busy with other projects, building costs have risen, credit markets have tightened, neighbors have litigated, etc.

1177 Post Road East is a relatively new mixed-used development.

This legislation would require towns to attempt to pro-actively zone based on a needs assessment. But it ignores that development is driven by market considerations, not by whether there is a need for affordable housing. Put simply, this legislation fails entirely to reflect that development by the private sector is driven by profitability.

Under the Fair Share analysis published by the Open Communities Alliance, both New Canaan and Canaan are required to increase the number of affordable units by between 16% and 18% of their overall number of dwelling units.

However, market factors driving development in these towns are very different. Even allowing a skyscraper in rural Canaan (where the average home price is $299,000) wouldn’t result in the meaningful development of extremely affordable units there because a developer could not sell out the market rate units at a cost to make back their money, or earn a profit on the market rate units — much less extremely affordable units.

Legislators should note that there are zero 8-30g applications in most towns in Connecticut, because developing in those towns makes no economic sense. Fair Share does nothing to address this.

Additionally, the formula in HB 6633 specifically prescribing percentages of types of units and level of deed restriction reduces all flexibility for developers to make money even in towns where there are current applications. This will lead to a lack of compliance with a town’s Fair Share plan resulting in litigation.

Litigation is part of nearly every project in Westport that includes affordable housing. The 187-unit Summit Saugatuck development was mired in 8-30g controversies for years.

The Fair Share quotas are unrealistic, and fail to include numerically the massive creation of market-rate units necessary to offset the development of the Fair Share units.

In order to develop 1,808 affordable and extremely affordable units in Westport, developers would need to build approximately 10,000 new units overall over 10 years (80% market rate units to offset the affordable and deeply affordable units), which basically doubles the size of the town. This is an absurd level of densification for towns on every level – infrastructure, traffic, etc.

The Fair Share goal for other towns like Easton and cities like Stamford and Norwalk are similarly unrealistic.

Issues like storm water drainage, retaining open space and massive traffic issues are legitimate issues in Westport and many other towns. Density on this scale would force a town to ignore these issues. It is easy for out-of-towners to decry stormwater issues as exaggerated if they haven’t driven around Westport right after a heavy storm, when culverts flood, brooks became raging rivers and intersections turn into lakes. Thoughtful planning matters.

Legislation attempting to create the missing extremely affordable housing in our state should focus on creating a public funding mechanism for entirely affordable projects. It is this funding, especially for lower density, entirely affordable projects — not the zoning — that is the issue in many towns.

Zoom our Affordable Housing Subcommittee meeting this Tuesday (February 28, noon) to hear how Westport is pro-actively working on creating a low density, entirely extremely affordable plan for town-owned land on Post Road East. Click here for Zoom details,

Click here to sign up to testify or submit written testimony on the proposed state bill. The registration deadline is 3 p.m. Monday, February 27.

10 responses to “[OPINION] Legislative Watch II: “Fair Share” Bill Debated In Hartford

  1. So much for Supply and Demand 🤓

  2. Eric William Buchroeder SHS ‘70

    An affordable housing law to advance DEI in Westport reminds me of George Costanza asking fiancée Susan for a pre-nup. “A prenup???? from YOU!!! Sure, I’ll sign it!!!” That horse left the barn around 1966.

  3. “Plans are of little importance,
    but planning is essential”.

  4. Maria Weingarten

    Thank you for a thoughtful and thorough analysis of why the Fair Share bill is completely out of touch with the purpose of zoning and the market factors impacting development. It is high time that legislators stop pandering to the special interests of real estate developer funded Regional Planning Associates, the patron CT Housing Advocates: OCA, FCCHO and DesegregateCT. For too long, RPA’s lobbyists have had an outsized voice speaking to CT’s legislators, when in reality the voices legislators should be listening to are the local leaders, Planning and Zoning chairs and other local zoning and planning experts from cities and towns, big and small. Effective public policy starts by including all stakeholders. How about legislators do that for a change and stop entertaining these bad bills that do not create needed affordability in CT? There is a better way…just listen.

  5. Thanks, Danielle, for parsing this ridiculous HB6633 for all.
    Once, again, in an attempt to apologize and repent for the George Floyd travesty and slavery, Democratic legislators are foisting upon us all, the hideousness of urban density and design.

  6. Danielle is undeniably correct in her analysis and particularly in
    her observation that the legislation, while well intentioned, is unrealistic in that it fails to take into account many factors which affect development. I’m not at all sure however, that the alternative she proposes – public funding for affordable development – is as a good an idea in practice as it is in theory. I fear that it would only add another layer of bureaucratic complication to an already bloated system.
    I also think that guidance from above which promotes competition among municipalities and seeks to interfere with local control over development is not a good idea.
    In my view the remedy lies in amendment of 8-30g
    to reward rather than punish municipalities for efforts to achieve “affordability”, (a subjective term which resists broad definition and should be replaced by “below market housing” which is a more objective and quantifiable standard,)
    If large lot single family zoning is the impediment to equality of opportunity in housing, that impediment can be removed by less drastic measures than are being proposed.

    • Larry, assuming one thinks 830g is a good idea, to have “below market housing” be the controller is, I think, far too broad a designation….say, for example, “market rate” is $2,700 a month for a two bedroom; then 830g would be met by same unit renting for $2,650…would that work?

  7. You make a good point Dan. I didn’t intend in this limited format to include the details of my suggestion, but I think you might address that problem by using language such as 10% – or whatever percentage makes sense – below market rate.
    More importantly however, 8-30g could and should be amended to make the moratorium provisions fairer and less disruptive. Instead of a blanket requirement that 10% of the housing must be affordable to avoid the Draconian effects of the statute, for example, one could say that if 5% of a town’s housing is affordable a municipality gets a 1 year moratorium with the duration of the moratorium increasing as the percentage of affordable (or below market rate) housing increases. That way the exercise would not be a zero sum game and a well-intentioned municipality such as Westport would not be punished unduly for the sins of its past.

  8. Ah the free market hehe.

  9. I hope everyone here who objects to the Fair Share bill will submit written testimony (link provided in the post). Its one thing to talk about it amongst ourselves but we need to be heard by those making the decisions. Please submit testimony if you want your voice to be heard on this.

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