West Hartford Interfaith Coalition, Inc. v. Town Council

Berdon, J.,

concurring.

In this case of first impression concerning General Statutes § 8-30g (Affordable Housing Act), I agree with the result reached and with most of the majority’s analysis. I write separately only to discuss an issue that the majority concludes it is not required to reach—that is, how the “need for affordable housing” under § 8-30g (c) (3)1 should be defined. Defining “need” is critical to determining whether the defendant town council of the town of West Hartford failed to prove that its identified public interests clearly outweigh the need for affordable housing.

I agree with the majority and the trial court that the size and density of the project proposed by the plaintiff, the West Hartford Interfaith Coalition, Inc., are the primary concerns that the defendant expressed in rejecting the project. I disagree, however, with the majority’s conclusion in footnote 23 of its opinion that it is not necessary to define “need” in order to determine whether these concerns outweigh the need for affordable housing pursuant to § 8-30g (c) (3). The footnote states that it is unnecessary to define “need” because only 6 percent of West Hartford’s housing is “affordable,” and this is far below the 10 percent required for exemption from the requirements of the Affordable Housing Act under § 8-30g (f).2 As a result, *529the majority concludes that the defendant did not sustain its burden of proof. There is nothing, however, in the language of the Affordable Housing Act or in its legislative history to suggest that the legislature intended that the 10 percent needed for exemption should be used as a measuring stick in determining whether the town’s interests outweigh the need for affordable housing.3 Indeed, the majority does not advance such a theory, but rather utilizes the 10 percent figure as a convenient means of avoiding the issue in this case.

I believe that the failure to define “need” will cause needless confusion. Furthermore, there are several important reasons why this court should define “need.” As the majority opinion indicates, what constitutes need under § 8-30g (c) (3) was clearly raised by the parties. In addition, this issue is an important factor in determining whether the interests that a town advances are *530sufficient to defeat an affordable housing project. Because this issue is squarely before us, it is important that we reach it not only for this case, but also for all the other affordable housing projects that are or will be proposed. Our trial courts and local planning and zoning commissions need to know how to determine whether the public concerns asserted by a town are sufficient to reject an application. Finally, the confusion as to the meaning of “need” that exists among members of the bar; E. Lyons & M. Lyons, “Connecticut Crosses The Line: The Affordable Housing Appeals Act,” 65 Conn. B.J. 281, 289 (1991); and legal scholars; 9 Connecticut Practice—Land Use Law and Practice (1993 R. Fuller) p. 834; underscores the need for a definition from this court.

The Affordable Housing Act was recommended to the legislature by the February 1, 1989 report of the legislatively created Blue Ribbon Commission on Housing4 (commission report). The commission report concludes, on the basis of a survey,5 that there is an enormous statewide deficiency of 181,535 affordable housing units. No one disputes this finding. The defendant argues, however, that, in reviewing the denial of the plaintiffs application, the trial court should have weighed West Hartford’s local need for affordable housing against its public interests. Instead, the trial court weighed the public interests of the town against the need for affordable housing generally as established by the commission report. For the several reasons set forth below, I believe that in sustaining the plaintiffs appeal, the trial court correctly weighed the public interests of the town against the generalized need for affordable housing that exists statewide.

*531The legislature could easily have added the necessary words “of the town” after “need” if it had intended that need was to be limited to the town’s requirements for affordable housing. “If the legislature had really intended . . . this . . . we think it would have found a way to express that intent quite clearly.” Lee Bros. Furniture Co. v. Cram, 63 Conn. 433, 439, 28 A. 540 (1893). “The intention of the legislature is found not in what it meant to say, but in the meaning of what it did say.” Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). This generic use of the noun “need,” without any qualification, was meant to encompass not just the need of the local community, but also the generalized need for affordable housing statewide.6

Furthermore, it is clear to me that because the legislature adopted the Affordable Housing Act in response to the commission’s report, it took into consideration all the concerns, findings and conclusions of the commission. “Where ... a report of a special commission or committee to the governor or General Assembly is presented to it, we consider it upon the assumption that its contents are generally known to the members of that body, at least in determining the general intent of the legislature.” State ex rel. Pettigrew v. Thompson, 135 Conn. 228, 233-34, 63 A.2d 154 (1948). Surely, *532shelter for those people across the state and within each region who are eligible for affordable housing was an important consideration. The commission pointed out that “[throughout the period of our deliberations, the housing crisis continued to threaten the welfare of our citizens and the economic prosperity of our business community. We believe that, if the recommendations made by the Commission are adopted, great progress can be made in producing new affordable housing, preserving existing affordable housing, preventing homelessness, and planning land use strategies that benefit all our citizens.” I agree with the majority that “a local focus could severely undermine the development of low income housing because wealthy towns could claim that they have few low income residents, and consequently have little or no local need for low income housing.”

The commission’s concerns, however, also extend to other matters that take on a statewide perspective and compel the conclusion that § 8-30g (c) (3) has reference to the need for affordable housing for all the people of Connecticut.7 The commission recognized that the *533availability and location of affordable housing have an effect on racial and economic integration. After reviewing significant judicial decisions; e.g., Huntington Branch, NAACP v. Huntington, 844 F.2d 926 (2d Cir.), aff'd, 488 U.S. 15, 109 S. Ct. 276, 102 L. Ed. 2d 180 (1988), reh. denied, 488 U.S. 1023, 109 S. Ct. 824, 102 L. Ed. 2d 813 (1989); the commission expressed concern that “certain patterns of housing related land use regulatory decisions reflect (conscious or unconscious) patterns of economic and/or racial discrimination.” If local housing requirements alone are to be considered in determining whether the public interests of a town outweigh the need for affordable housing, the beneficent goals of racial and economic integration through housing will be undermined. “In determining the true meaning of a statute when there is genuine uncertainty as to how it should apply, identifying the problem in society to which the legislature addressed itself by examining the legislative history of the statute under litigation is helpful.” State v. Campbell, 180 Conn. 557, 562, 429 A.2d 960 (1980).

*534Finally, the expeditious processing of the applicants’ appeals by the trial court was high on the legislature’s agenda when it enacted the Affordable Housing Act. The legislature directed the judiciary as follows: “Appeals taken pursuant to [the Affordable Housing Act] shall be privileged cases to be heard by the court as soon after the return day as is practicable.” General Statutes § 8-30g (b). Saddling the trial court with what could be a long, drawn out and complex evidentiary hearing to determine whether a particular town has a need for affordable housing at the time the application is filed would be counterproductive. For example, to determine the need of the individual town would require that the trial court determine the number of such units required not only for those who are living in the town at the time of the application, but also for those who desire to move into the town but cannot because of the lack of such housing.8 Accordingly, in view of this legislative concern, it cannot reasonably be said that the legislature wanted affordable housing to be predicated on the then existing individual needs of 169 towns. Rather, because the legislature had before it the commission report focusing on statewide needs, it obviously had in mind this generalized need for affordable housing in the state of Connecticut. “[W]here a statute is capable of two constructions, one that is rational and effective in accomplishing the evident legislative object, and the other leading to ‘bizarre results’ destructive of that purpose, the former should prevail.” State v. Williams, 206 Conn. 203, 210, 536 A.2d 583 (1988).

*535In sum, I would find that “need” has reference to the generalized statewide need for affordable housing as set forth in the commission report. Therefore, the trial court properly concluded, among other things, that the defendant was required to prove that the public interest—in this case, the size and density of the project—outweighed the generalized statewide need for affordable housing. Accordingly, I concur in the result reached by the majority.

In this appeal under the Affordable Housing Act, the defendant town of West Hartford has the burden of proving that: “(1) the decision from which such appeal is taken and the reasons cited for such decision are supported by sufficient evidence in the record; (2) the decision is necessary to protect substantial public interests in health, safety, or other matters which the commission may legally consider; (3) such public interests clearly outweigh the need for affordable housing; and (4) such public interests cannot be protected by reasonable changes to the affordable housing development.” General Statutes § 8-30g (c).

General Statutes § 8-30g (f) provides in relevant part: “[T]he affordable housing appeals procedure established under this section shall not be available if the real property which is the subject of the application is located in a municipality in which at least ten per cent of all dwelling units in the municipality are (1) assisted housing or (2) currently financed by Connect*529icut Housing Finance Authority mortgages or (3) subject to deeds containing covenants or restrictions which require that such dwelling units be sold or rented at, or below, prices which will preserve the units as affordable housing, as defined in section 8-39a, for persons and families whose income is less than or equal to eighty per cent of the area median income. . . .”

I also find the comparison confusing. As I understand it, the 1500 units of affordable housing (which is 6 percent of total housing) that West Hartford now has is affordable housing as defined by General Statutes § 8-30g (a) (1). See footnote 2 of the majority opinion. This figure, which does not include units that are financed by Connecticut Housing Finance Authority (CHFA) mortgages, is being compared with the 10 percent exemption provided in § 8-30g (f), which would include houses financed by CHFA. See footnote 2. Thus, in determining whether the public interests outweigh the need for affordable housing in this case, the majority compares apples with oranges. For all we know on the record before us, West Hartford may in fact meet the 10 percent requirement of § 8-30g (f) if CHFA loans are included.

Furthermore, it is for the trial court, at least in the first instance, to make the determination of whether the defendant has met its burden of proving that the public interests outweigh the need for affordable housing. In making this determination, the trial court did not equate “need” with the 10 percent required for exemption, but rather considered the generalized need for affordable housing on a statewide basis.

See Public Acts 1987, No. 87-550, § 4 (a).

In 1987, the state office of policy and management contracted with each of the state’s fifteen regional planning agencies to conduct a regional housing needs assessment. These assessments were used to compile statewide figures.

As the majority opinion correctly notes, there are suggestions in the floor debates that at least one legislator desired a localized focus on need. I realize that the debates of the legislators are relevant in determining legislative intent. Hartford Electric Light Co. v. Wethersfield, 165 Conn. 211, 223-24, 332 A.2d 83 (1973). “Nonetheless, we approach our attempt to glean the legislative intent from the floor debates with caution and circumspection because we recognize that legislative discussions may only be expressive of the views and motives of individual members and may not be a safe guide to views of the law-making body.” Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 9, 434 A.2d 293 (1980). In the present case, these suggestions that a local focus may have been intended are not controlling because such a construction would defeat the underlying purposes of the act.

The facts that the legislature provided exemptions from the act if a town achieves certain affordable housing goals, and that the exemptions are uniform for every town, reinforce the conclusion that the act has a statewide focus. For example, a municipality is exempt from the provisions of the Affordable Housing Act for a period of one year after certification by the commissioner of housing that it has completed an initial eligible housing development pursuant to General Statutes § 8-386. General Statutes § 8-30g (g). Section 8-386 (a) provides as follows: “Upon submission of the initial report of the Blue Ribbon Commission on Housing pursuant to subsection (a) of section 4 of public act 87-550, the secretary of the office of policy and management, in consultation with the commissioner of housing, shall establish a pilot program in two planning regions of the state, as designated under the provisions of section 16a-4a, for the development, through the process of a negotiated investment strategy, of a regional fair housing compact to provide increased housing for low and moderate income families within the regions. The choice of the regions for such pilot program shall be based on the findings contained in the initial report of the Blue Ribbon Commission on Housing. The pilot program shall provide for *533a series of negotiations to be conducted by a mediator with the secretary of the office of policy and management, or his designee, the commissioner of housing, or his designee, and the officers of the regional planning agency or agencies within the chosen regions, or their designees and a representative of each municipality within such planning regions, appointed by the chief executive officer of such municipality. Such negotiations shall be conducted for the purpose of formulating and reaching consensus on a fair housing compact containing regional goals for the development of adequate, affordable housing based on the need for such homing in the regions as balanced against environmental, economic, transportation and infrastructure concerns, and the time frames for achieving such goals. The secretary shall contract with an independent consultant to serve as mediator in such negotiations. Upon the successful negotiation of such regional fair housing compact, the terms of the compact shall be submitted to the regional planning agency or agencies for incorporation into the regional plan or plans of development, as provided under section 8-35a, and shall be transmitted to the chief executive officers of the municipalities located within the planning regions for approval by the municipalities. Such compact shall not be included in the regional plan or plans of development until sixty-five per cent of the legislative bodies located within the planning regions have given such approval.” (Emphasis added.)

The need of the town for affordable housing under any circumstances cannot be judged solely on the basis of the people already living in the municipality. “No person should be restricted in the right to obtain decent housing in any town, whether it be in towns as far west as Greenwich or as far east as Stonington.” Housing Authority v. Papandrea, 222 Conn. 414, 442, 610 A.2d 637 (1992) (Berdon, J., dissenting).