Attorney General's Opinion

Attorney General, Richard Blumenthal

March 22, 2006

The Honorable James F. Abromaitis
Department of Economic and Community Development
505 Hudson Street
Hartford, CT 06106

Dear Commissioner Abromaitis:

You have requested our opinion with respect to an application by the Town of Trumbull for a temporary moratorium from the affordable housing land use appeals procedure under the provisions of Conn. Gen. Stat. § 8-30g(l).

Conn. Gen. Stat. § 8-30g(l)(1) provides that the affordable housing appeals procedure established under the statute shall not apply to an affordable housing application filed with a local land use commission during the period of a moratorium.  Conn. Gen. Stat. 8-30g(l)(7) governs the awarding of points toward a moratorium for “newly-constructed units in an affordable housing development, as that term was defined at the time of the affordable housing application.”  Conn. Gen. Stat. § 8-30g(a)(1) defines an “affordable housing development” as a proposed housing development which is, among other things, “a set-aside development.”

According to your letter, Trumbull is seeking points for three developments as “affordable housing developments,” although you do not believe the information provided in their application clearly demonstrates that they meet the definition of “affordable housing development.”  This is because all of the units at the three developments have not been completed; therefore the percentage of affordable units at each of the three falls below the percentage necessary to qualify as a “set-aside development.”

You indicate that it is your intention to deny the application on that basis, and request our confirmation of your decision.

Our review of the relevant statutes leads us to the conclusion that for a development to qualify as an "affordable housing development," all of the units do not have to be completed, as the definition of an affordable housing development appears to contemplate proposed construction.   Conn. Gen. Stat. § 8-30g(a)(1) defines an “affordable housing development” as a proposed housing development which is (A) assisted housing, or (B) a set-aside development; § 8-30g(a)(3) defines “assisted housing” as “housing which is receiving, or will receive, financial assistance under any government program…”; § 8-30g(a)(6) defines a “set-aside development” as a development in which not less than thirty percent of the dwelling units will be conveyed by deeds containing covenants or restrictions…”  (Emphasis added.)  Therefore, a literal reading indicates that developments appear to qualify as affordable housing developments based upon the development as it is proposed to be fully built out. 

On the other hand, only fully constructed units issued a certificate of occupancy can qualify to receive points towards a moratorium.  According to Conn. Gen. Stat. § 8-30g(l) (7) “points shall be awarded only for dwelling units which were (A) newly-constructed units in an affordable housing development, as that term was defined at the time of the affordable housing application, for which a certificate of occupancy was issued after July 1, 1990…”   Conn. Gen. Stat. § 8-30g(l)(9) provides that “a newly-constructed unit shall be counted toward a moratorium when it receives a certificate of occupancy.”

As a final note, a detailed determination must be made in awarding points for units in housing developments.  Such a determination requires a detailed factual review of building plans, certificates of occupancy, etc. upon which we cannot opine.  Since it involves a factual determination, any ultimate decision must be made by your agency.

Very truly yours,

RICHARD BLUMENTHAL

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