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Martin LLP Achieves Rare Litigation Win Against Developers Seeking to Use the Connecticut Affordable Housing Statute to Override Local Zoning Limitations and Regulations

December 2018 - Section 8-30g of the Connecticut General Statutes is a law that encourages the development of affordable housing. With a nod toward the law of unintended consequences, in practice, the statute has also been used as a tool against neighbors to “encourage” above-market payoffs to so-called developers. Beginning in late 2010, the Martin LLP Litigation Department actively opposed an effort to gain approval for the development of a 16 two-bedroom units and 24 parking spots complex on a one-half acre lot in a residential area not proximate to public transportation, shopping or other amenities. Such efforts included appearing and submitting position papers to the municipal Planning & Zoning Commission at over a dozen hearings, appearing, arguing and submitting briefs to the Connecticut Superior Court and opposing an effort to appeal to the Connecticut Appellate Court.

Under the statute, the burden of proof is reversed as compared to the normal appeal of a P&Z decision. For applications made that include provision of thirty percent of the units for affordable housing, it is incumbent on the municipality to grant the right to allow the developer to bypass normal zoning regulations governing things like set-backs, size and the like unless there are issues of health safety and other public concerns that outweigh the need for additional affordable housing. Virtually all of the cases that have been decided in Connecticut have gone in favor of the developer. This is one of the very few that upheld the decision of the local P&Z imposing rigorous restrictions on the developer.

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