Justice Department Investigating Darien's Inclusionary Zoning Regs

The U.S. Department of Justice has launched an investigation under the Fair Housing Act into Darien's inclusionary zoning regulations, according to interviews and documents obtained by Patch—a fact that several members of the Board of Selectmen said they weren't apprised of until contacted for this article.

In a May 4 letter to First Selectman Dave Campbell, Steven Rosenbaum, chief of the Housing and Civil Enforcement Section in the DOJ's Civil Rights Division, informed the town that the department had begun an inquiry into the matter.

"Our investigation is focused on the Town's Inclusionary Zoning Regulations ... Specifically, we are interested in understanding the reasons why the Town adopted Section 586 of the Regulations, entitled 'Priority Populations,'" the letter states.

The act prohibits housing bias on the basis of race, color, national origin, and other protected categories.

The law also authorizes the Attorney General to "commence a civil action whenever he has reasonable cause to believe that a person or group of persons is engaged in a pattern or practice of housing discrimination," Rosenbaum wrote. He added that investigators had "not made any determination as to whether the Town has violated the Act."

A spokeswoman for the department confirmed to Patch Tuesday that an investigation was ongoing but declined to comment on specifics.

Approved in 2009 by the Planning and Zoning Commission, the town's inclusionary zoning regulations require new multifamily developments and subdivisions of five or more houses to set aside at least 12 percent of their units as below-market-rate. 

The portion of the regulations highlighted by the letter establishes "priority designations" for people who wish to buy such units, such as local first responders, those employed by the town or school system, and various classes of people who work, live, or have previously lived in Darien.

In a town whose population is nearly 96 percent white, such a residency policy could qualify as discriminatory under the law if applied to publicly-subsidized developments.

A 2009 New York Times article about Darien's inclusionary zoning ordinance invoked the example of Smithtown, N.Y., which was sued for allegedly manipulating a section 8 waiting list to favor local residents over a "larger pool of minority applicants from elsewhere." The town ultimately settled and paid monetary damages without admitting wrongdoing.

Unlike Smithtown, Darien's priority designations clause has never been put into action, Campbell said, because no qualifying development has been built in town since its passage.

"Because the regulation has never been used, we didn't think a lot about it [the investigation]," Campbell said.

Campbell also noted that the priority designations were based on similar language used in neighboring towns.

"When Planning & Zoning went to do this regulation .... they basically copied what Norwalk and Stamford had," he added.

After Darien received the DOJ letter, the matter was turned over to town counsel Wayne Fox, who sent investigators copies of the regulations as well as minutes from relevant P&Z Commission and Board of Selectmen meetings.

"We were very happy to cooperate," Fox said, but, "I looked upon it as rather perfunctory in nature."

"It was not a situation where the Department of Justice contacted us and said, 'Your regulations are in violation,'" Fox added. "It specifically said, 'We're not making that determination now.'"

Once it submitted materials to the DOJ in May, the town didn't hear back from investigators, Campbell said.

"We never heard a peep since this one letter," Campbell said. "I just turned it over to our attorney and never thought about it again."

But according to an email obtained by Patch, officials were still conducting interviews as part of the inquiry as recently as last week.

The message, sent by developer Margaret Stefanoni to two officials at the Connecticut Department of Economic and Community Development, indicates that Stefanoni was contacted about the probe on Sept. 8 by Neta Borshansky, an attorney for the Housing and Civil Enforcement Section.

"I have no knowledge of who instigated this investigation or the precise issue," Stefanoni wrote. "I was questioned about my experiences regarding affordable housing in the Town, specifically with Town officials, and about my comments on the [8-30g] moratorium application."

The message mirrors previous e-mail exchanges obtained from the DECD through a Freedom of Information Act request as well as multiple filings with the department from Stefanoni and her husband, Chris Stefanoni.

The couple is currently fighting the town's application for a four-year moratorium under state statute 8-30g, which would temporarily prevent developers like the Stefanonis from invoking special state exemptions to build affordable housing developments at a higher-than-normal density.

In messages and comments sent to the DECD—which is set to adjudicate the town's moratorium application by next month—the Stefanonis have repeatedly sought to stymie Darien's efforts, aggressively challenging its self-composed calculus of required "housing unit-equivalent points."

"I learned on Wednesday that the Department of Justice informed Town Counsel and the First Selectman in early May about its investigation of Darien concerning violations of fair housing laws," Chris Stefanoni told Patch in a statement.

"I have been asked to detail my experiences and give my perspective concerning town officials, town land use commissions, locally-owned media, and even town residents," he added. "I enjoy gathering evidence ... and am confident that this Federal investigation is in the best interest of Darien and will ensure that our town has a better future."

"There are definitely repercussions in Darien for being an affordable housing developer," Margaret Stefanoni said in a separate statement. "This is a small town, and people either live near one of our [affordable housing] proposals or know someone who does."

It is not known whether the timing of the investigation is connected to the town's recent 8-30g push, but Darien publicly announced that it would apply to the state for a moratorium on May 6, the day before the DOJ letter was marked as received.

In interviews conducted on Tuesday, three members of the Board of Selectmen said they had been unaware of any investigation until contacted by Patch.

"Sadly, I have not been apprised of any investigations into the town's affordable housing practices," Selectman Callie Sullivan said.

"It's a shame that yet another issue which affects all the members of our community has been kept under wraps," she added.

"I am disappointed that we weren't advised of this sooner and that I had learn about this from the press," Selectman David Bayne said.

Bayne referred to two other items brought to light last last week—a letter from developer Tom Golden to the town stating that he did not intend to build a water retention cistern at the Noroton Heights Shopping Center, and a set of permit approvals for the since-abandoned Baker Park Woods flood mitigation project—to contend that Campbell had previously held back important information from the board.

"My sincere hope is that this investigation turns out to be completely meritless," Bayne added. "If it [the ordinance] needs to be changed, we need to change it. The whole idea of inclusionary zoning is a positive thing for Darien."

Both Sullivan and Bayne—joined by fellow Democrat and First Selectman Evonne Klein—voted in favor of the policy of inclusionary zoning when it came before the Board of Selectmen in 2008, though the language of the measure was drafted by town counsel and enacted by the P&Z Commission.

Klein described the decision not to apprise the board of the full investigation as "a bit shocking."

"It's a responsibility that you have to the town to keep them apprised of what's happening—not only the town, but the Board of Selectmen," Klein said. "This is government. Government is meant to be transparent, and when it isn't, it erodes the public trust."

Republican Selectman Jerry Nielsen also said he had been unaware of any such investigation.