www.WashingtonCT.org The Town of Washington, Connecticut Affordable Housing Appeal Statistics

Memorandum

TO: Washington Zoning Commission
FROM: Andy Shapiro
RE: Affordable Housing Appeal Statistics
DATE: 19 May 2005

First Selectman Dick Sears reports on the Town web site [see Rationale for a Town Housing Commission] that in affordable housing appeals taken by developers to state court, developers win 68% of the cases, and towns 32%.

This statistic may create the impression that the odds would be roughly 3-to-1 against Washington if it were sued by a developer whose affordable housing application it had rejected. Actually, the odds may be considerably less favorable to Washington if you consider the reasons why developers and towns win in court.

From 1991-2004, 128 judicial decisions were rendered in affordable housing appeals involving 92 separate developments statewide. These appeals arise when a town (usually through its zoning commission) denies a developer's application to build affordable housing, and the developer takes the town to court. There the burden is on the town to prove that it's denial was justified.

Why did towns win in 32% of the cases? Because, in all instances, they were able to prove that denial of affordable housing was necessary to protect some substantial public interest in health or safety. That is the legal standard that towns must meet in order to prevail under the state's Affordable Housing Appeals Act.

What sorts of public interests in health and safety allowed towns to win 32% of the time? Not surprisingly, serious shortcomings like

• inadequate water supply
• inadequate sewage disposal, and
• fire safety.

Valid reasons like these outweighed the need for affordable housing.

Not so with the invalid reasons that were consistently brushed aside in the more than 2-out-of-3 cases where developers won. The invalid public-interest reasons for rejecting affordable housing include:

• exceeding density requirements
• preservation of neighborhood character
• adverse impact on school enrollment
• adverse impact on town finances
• violation of existing Plan of Development
• increased traffic congestion
• adverse aesthetic impact, and
• violation of existing zoning regulations.

None of these reasons has stood up in court as being valid.

Consider just the last-cited reason. The mere fact that a proposed affordable housing development may violate local zoning laws counts for nothing in court. If that's all that a town relies on to support its denial of the developer's application, it will lose.

CONCLUSION: The 68/32 split does not mean that towns have a 1-in-3 shot of winning any appeal, regardless of the grounds they rely on. Towns that base their denials solely on violations of zoning regulations (or other invalid reasons) cannot expect a 32% chance of winning. On the contrary, they can expect to lose 100% of the time. Because violation of local zoning laws, in and of itself, is irrelevant in court. What counts is substantial public interests in health or safety. Only if a town can prove that it acted to protect such an interest (and, further, that that interest outweighs the need for affordable housing), will it have a 32% chance of winning.

This statistical analysis is in total agreement with past written and oral opinions provided to the Zoning Commission by its land-use attorneys.