Canton commission adopts affordability requirement for multi-unit housing developments

Editor's Note: This story was posted on Sept. 21 but updated with additional information on Oct. 1

By John Fitts

Staff Writer

CANTON ­– The town’s Planning and Zoning Commission on Sept. 20 approved a 15-percent affordability component that would apply to most new multi-unit residential development proposals – at least in the near future.

The zoning amendment requires 15% of all units, rounded down to the nearest whole number, shall be income restricted affordable housing dwelling units meeting the income criteria of CGS § 8-30g(k), as enforced by state regulations, a minimum of 50% of the affordable dwellings must meet 60% income threshold requirements.” The balance of the affordable units could meet an 80 % income threshold. The affordable units must be set aside for 40 years.

The rule essentially, due to the math, applies to projects of 7 units or more. Nearly all single-family developments, as well as multi-family projects, are included, but the Collins Co. parcel, where zoning changes are subject to ongoing litigation, is not.

The regulation is effective Oct. 10.

According to The Department of Housing and Urban Development Office of Policy Development and Research (PD&R), the median income for the family of 4 is $118,100. The 80 percent income level for Canton is $94,500 for a family of 4. (Canton is listed as part of the “Hartford-West Hartford-East Hartford, CT HUD Metro FMR Area.)”

At the 60 percent level for that family of four would be $70,860. According to a section of the state statute the town is examining, 30 percent or less of that income should be used for housing.

The commission has discussed affordability for some time now, expressing concern that the town remain affordable for a people with a wide variety of income levels.

Commission members are also keenly aware of the “threshold” in the state affordability statute 8-30g.

While experts say the state’s 10 percent affordability goal noted in state documents is not a requirement for towns, those municipalities that are short of that number are subject to an appeals process for proposed affordable housing projects that qualify under other parameters in 8-30g. Under the state statute, that puts the burden of proof on the town and gives municipalities very limited arguments for health and safety in such appeals, even if a project doesn't conform to the town’s zoning regulations.

If you have an affordable housing application that has been denied, unlike most applications this one can be appealed under a special process,” Attorney Mike Zizka of Halloran Sage said during a recent forum on affordable housing sponsored by the Canton Advocates for Responsible Expansion. “For most zoning and subdivision appeals or Zoning board of Appeals appeals, the court will give the benefit of the doubt to the agency and it will look at the record and say if there’s any reason why this agency’s decision can stand, we will support the agency’s decision. So, the agency is given a vast benefit of the doubt. In an affordable housing appeal the burden is shifted. It’s up to the agency to demonstrate that the denial of the application was necessary to promote or protect certain very important health or safety benefits. To some extent, it might be a strong public policy but usually speaking now the courts are looking for a health or safety benefit.”

In the 2022 state list of state approved affordable units, Canton was at 8.3 percent. That means 360 of 4,339 housing units qualify under the statute. That number includes a mix of government assisted, tenant rental assistance, qualified mortgages from CHFA/USDA and deed-restricted units.

With recently approved multi-family projects coming online – and the lack of any committed affordable units within those – commission members have expressed concern that the town is falling behind on its goals for housing at all income levels and falling short of that 10 percent threshold in the event of an affordable application.

In a memo to Canton commissioners earlier this year, assistant Canton town Planner Nathaniel Jarvie noted the 102-unit apartment building at 5 Cherry Brook, as well as the 32-unit apartment building being constructed at 401 Albany Turnpike, the planned 55-unit complex at 75 Old Canton Road and a planned 5-unit townhouse at 375 Albany Turnpike.

In addition to those mentioned in that memo, there are also plans for a 34-home housing plan at the former site of Applegate Farm on Lawton and Washburn Roads. At least two other developers have presented the commission with preliminary plans, on an informal basis, for multi-family housing.

Officials have also said that some housing in Canton that is currently deed restricted for affordability will soon lose that status.

On the 20th, commission chairman Jonathan Thiesse said he proposed the 15-percent amendment, but with some reservations. He said he understands it could be untenable for some developers and acknowledged it could act as a de-facto moratorium. Thiesse also said he sees the rule as a temporary one until the commission can put a more robust amendment in place.

“If we let things go forward without some kind of affordable housing requirement, we’re going to keep sliding backwards,” he said.

The proposal indeed wasn’t without concern.

The owners of 50 Albany Turnpike, who, earlier this year, presented an informal concept presentation for a multifamily project at that property to replace some of the underperforming office space, expressed concerns about the costs of redevelopment and the effect of the regulation.

A letter from JAR Partners, LLC representative Jackie Mozzicato, states, in part: “Requiring a redeveloper to provide affordable housing is a disincentive to redevelopment. If redevelopment does not occur when the market would otherwise support it, the community loses the additional tax revenue that comes from a higher valued property following the development. Ultimately this leaved properties that are physically, functionally, and economically obsolete. In turn, this will depress the value of other properties, particularly those nearby.”

Another part of the letter states, “An unintended consequence of requiring a redevelopment project to provide affordable housing will be to limit, or entirely preclude much-needed work to bring old, unmarketable, and underutilized sites into production.”

Mozzicato goes on to say that the 60 percent set aside requirement is untenable for development, effectively meaning no redevelopment for new residential units will take place.

While some commission members have noted there are numerous programs to help developers fill the gaps, many also acknowledged that it does add complexity - and potentially timing - to the finances of development.

At least three residents spoke in favor of the proposal before the commission adopted it.

Sarah Faulkner said that while affordable units can still be expensive, the reduced rates offer a better chance for additional people – especially the elderly and the young to stay or live in town.

“We need to have places that they can afford,” she said.

Canton Advocates for Responsible Expansion, which recently hosted the forum on affordable housing, also wrote a letter to the commission and while it expressed some concern over the form-based code that has governed recent approvals, it also expressed support for the affordable amendment.

"We wish to thank you for putting forward these amendments to the Canton Zoning Regulations, and we endorse their adoption," organization President Jane Latus wrote to the commission. "The amendments are consistent with the goals of the town's Plan of Conservation and Development to 'provide for a variety of housing choice in Canton ...since more people will be seeking housing choices which are less expensive, require less maintenance, or meet other lifestyle needs.' They are also consistent with residents' desire for more affordable housing, as expressed in the town survey conducted as part of the preparation of the town's affordable housing plan."

It is likely that the commission will receive continued feedback about the 15-percent rule, even as it re-evaluates other zoning rules in the near future.

At a Sept. 27 Board of Selectman meeting, First Selectman Robert Bessel said developers are already talking about it and reaching out to officials.

“There are reports that several developers who have proposed projects in Canton are questioning their ability to go forward with those developments as a result of that new rule,” Bessel said.

He added that there are some emerging suggestions on ways to give developers a little more flexibility.

On Oct. 25, for example, the Board of Selectman will take comments on the town’s business development tax program. Selectmen on Sept. 27 denied a request by the owners of the project at 401 Albany to receive $99,000 of tax relief over a 5-year period. While the town’s Economic Development Agency set up the program with numerous weighted parameters, many members of the public objected to application for 401 Albany and selectmen have agreed that it’s time to re-evaluate the program.

While there are no committed affordable units in that project and the impetus for the re-evaluation of the relief program were different, one emerging idea is to see if the program could perhaps include some abatement for affordable housing, Bessel said.

But Bessel also said the 15-percent rule could also stifle the creation of more affordable units in town.

“We need affordable housing and we need more housing in general, so you want to make sure – I think – that the policies we’re coming up with need to accomplish both and continue to tell the development community that Canton is a place to do business that it is a place to develop and to tell the residents that the affordable housing is important to us.”