Author of Key 8-30g Opinion Challenges Town's Moratorium Math

Timothy Hollister, an attorney whose legal opinion on Avalon Darien was vital to the town's pursuit of an 8-30g moratorium, has sent a letter to state officials questioning major portions of the affordable housing tally which Darien included in its application to Hartford this summer.

If Hollister's new arguments are upheld by the Department of Economic and Community Development—which is currently reviewing Darien's request—they would appear to invalidate a significant percentage of "housing unit-equivalent points" claimed by the town, all but crippling its current chances for a moratorium.

Connecticut General Statute 8-30g permits affordable housing developers to overstep local zoning restrictions in many cases through an appeals process. Normally 10 percent of a community's housing units must qualify as affordable for it to be exempt from the statute, but if a town can show that it has added affordable housing units—or the equivalent—equaling 2 percent of its total stock, it can qualify for a temporary moratorium.

In May, Darien announced that it would seek such a reprieve, contending that it had collected the necessary points from Avalon Darien Community and Apartments, Villager Pond, Clock Hill Homes, and The Cottage. Its application, received by the DECD July 27, is set for a judgment by next month.

But Hollister, who Planning and Zoning Director Jeremy Ginsberg described last month as "one of the premier land use attorneys dealing with [Connecticut General Statute] 8-30g," wrote in a Sept. 9 letter to the DECD that two developments—Clock Hill and The Cottage—do not qualify for the points asserted by the town.

Specifically, Hollister argued that Clock Hill units do not meet the income restrictions that were required at the time of the development's approval in 1993. In order to qualify for 8-30g moratorium points, he wrote, units from that time period had to be deed-restricted to those with a household income no greater than 80 percent of "area median income."

But instead, Hollister wrote, Clock Hill deeds were pegged to Connecticut Housing Finance Authority income guidelines, which could well exceed the 8-30g standard.

"It is apparent ... that maximum incomes at Clock Hill not only were not limited to 80 percent of area median, but were (and are) allowed to float up to 115 percent of area median," he asserted. "Thus, Clock Hill Homes does not qualify for four year moratorium points because (1) assisted housing by itself is not a recognized point source for a four-year moratorium; and (2) Clock Hill Homes as a set aside development does not meet the 1993/pre-Public Act 95-280 standard for income restriction."

Hollister also wrote that points claimed from The Cottage did not meet the strictures of 8-30g.

"The documentation does not show The Cottage as a set aside development, nor are the units there occupied under deeds, covenants, or similar restrictions that comply with § 8-30g set aside requirements," he noted.

If Hollister's opinions are accepted by DECD and both of those point sources wiped from Darien's tally, it would shrink the town's total from a claimed 144 points down to 108—well below the required 135.84.

Hollister emphasized that he was speaking only for himself and that he "support[s] every town's pursuit of § 8-30g's temporary moratorium," but that "we all need to follow the statute."

As noted in the letter, Hollister has been involved in more than 80 8-30g applications and served on the Blue Ribbon Commission that originally recommended the creation of the four-year moratorium clause.

Ironically, it was that very expertise—and a legal opinion penned by Hollister—that initially raised the town's hopes of obtaining a moratorium.

For years, town officials had believed that Darien was short of the needed points to earn a reprieve, but a new calculus emerged from the Planning and Zoning Department early this year asserting that Avalon Darien deserved more credits than previously thought. The difference—35.5 in all—would put the town over the top, officials said.

Reinforcing that claim was a letter from Hollister, which argued that Avalon Darien qualified as a set-aside development and thus warranted more points than once believed. That opinion proved influential, according to town officials.

"Tim Hollister, who [also] represented Garden Homes in their application in fall of '09, talked to us on numerous occasions and then noted to us his belief that Avalon should count as a set-aside development," Ginsberg told Patch in May.

"I think Mr. Hollister's experience in the field gave us reason to reevaluate," Ginsberg added.

It's far from certain that the state will agree with Hollister's assessments, however. In February, DECD Community Development Specialist Michael Santoro issued an informal opinion on Avalon Darien directly at odds with Hollister's Mar. 2 letter, stating that the development would not qualify for the set-aside points claimed by the town.

And in a Sept. 9 follow-up message to Hollister's recent letter, Andrea Aldrich, P&Z's Manager of Community Development Services, sought to rebut his arguments on both counts.

"The Clock Hill Homes application was filed before the statute [8-30g] was amended to include 'the lesser of the state median income or the area median income,'" Aldrich wrote. "These thirty constructed units are an affordable housing development, as that term was defined at the time of the affordable housing application."

Citing a previous moratorium application in Trumbull, Aldrich also sought to clarify a point raised by developers Chris and Margaret Stefanoni—namely, that Clock Hill units were ineligible because they were pegged to area median income rather than the lower state median income.

"Affordable/assisted housing units existing prior to the amendment of the statute in 1995 can be counted towards a moratorium so long as they complied with the area median income requirements before the statute was amended," she wrote.

Aldrich also wrote that the lease for The Cottage required its premises be used for assisted housing as defined by 8-30g, rendering it eligible for moratorium points.

Both Hollister's letter and Aldrich's response were submitted on the final day of a prescribed 30-day comment period for the town's moratorium application.