Could unfinished affordable housing projects earn points toward a Connecticut moratorium?

Plain-English summary

The Attorney General concluded in 2006 that an affordable housing development could qualify while some proposed units remained unfinished. Yet only completed units with certificates of occupancy earned points toward a moratorium. He did not decide Trumbull’s application, which called for factual review by the housing agency.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Housing administrators at the time

The 2006 opinion distinguished a development's legal classification from the units that earned points. The definition of an affordable housing development contemplated proposed construction, while the moratorium point rule required a newly constructed unit to receive a certificate of occupancy.

Municipalities and developers at the time

Trumbull sought points for three developments whose planned affordable units were not all complete. The AG did not decide whether those developments met the statutory definition or how many points the town should receive. He said the agency needed to examine building plans, certificates of occupancy and other facts.

Common questions

Q: Did every unit need to be built for a project to count as an affordable housing development?
A: The AG said no. The statutory definition could encompass a proposed development before full buildout.

Q: Could an unfinished unit earn a moratorium point?
A: No. The opinion read the point rule as requiring a completed unit with a certificate of occupancy.

Q: Did the AG approve Trumbull's moratorium application?
A: No. He said the agency had to make the detailed factual determination and declined to decide the application himself.

Background and statutory framework

The development commissioner asked about Trumbull's application under Conn. Gen. Stat. § 8-30g(l). The AG read the statute's definition of affordable housing development in Conn. Gen. Stat. § 8-30g(a)(1) against the separate point award provisions. Proposed full buildout could establish the development's character, but the timing of each unit's certificate of occupancy controlled when it counted toward a moratorium.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 8-30g(l); Conn. Gen. Stat. § 8-30g(a)(1).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2006-formal-opinions/the-honorable-james-f-abromaitis-department-of-economic-and-community-development-formal-opinion-200

Original opinion text

The Honorable James F. Abromaitis, Department of Economic and Community Development, Formal Opinion 2006-008, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

March 22, 2006

The Honorable James F. Abromaitis

Department of Economic and Community Development

505 Hudson Street

Hartford, CT 06106

Dear Commissioner Abromaitis:

You have requested our opinion with respect to an application by the Town of Trumbull for a temporary moratorium from the affordable housing land use appeals procedure under the provisions of Conn. Gen. Stat. § 8-30g(l).

Conn. Gen. Stat. § 8-30g(l)(1) provides that the affordable housing appeals procedure established under the statute shall not apply to an affordable housing application filed with a local land use commission during the period of a moratorium. Conn. Gen. Stat. 8-30g(l)(7) governs the awarding of points toward a moratorium for “newly-constructed units in an affordable housing development, as that term was defined at the time of the affordable housing application.” Conn. Gen. Stat. § 8-30g(a)(1) defines an “affordable housing development” as a proposed housing development which is, among other things, “a set-aside development.”

According to your letter, Trumbull is seeking points for three developments as “affordable housing developments,” although you do not believe the information provided in their application clearly demonstrates that they meet the definition of “affordable housing development.” This is because all of the units at the three developments have not been completed; therefore the percentage of affordable units at each of the three falls below the percentage necessary to qualify as a “set-aside development.”

You indicate that it is your intention to deny the application on that basis, and request our confirmation of your decision.

Our review of the relevant statutes leads us to the conclusion that for a development to qualify as an "affordable housing development," all of the units do not have to be completed, as the definition of an affordable housing development appears to contemplate proposed construction. Conn. Gen. Stat. § 8-30g(a)(1) defines an “affordable housing development” as a proposed housing development which is (A) assisted housing, or (B) a set-aside development; § 8-30g(a)(3) defines “assisted housing” as “housing which is receiving, or will receive, financial assistance under any government program…”; § 8-30g(a)(6) defines a “set-aside development” as a development in which not less than thirty percent of the dwelling units will be conveyed by deeds containing covenants or restrictions…” (Emphasis added.) Therefore, a literal reading indicates that developments appear to qualify as affordable housing developments based upon the development as it is proposed to be fully built out.

On the other hand, only fully constructed units issued a certificate of occupancy can qualify to receive points towards a moratorium. According to Conn. Gen. Stat. § 8-30g(l) (7) “points shall be awarded only for dwelling units which were (A) newly-constructed units in an affordable housing development, as that term was defined at the time of the affordable housing application, for which a certificate of occupancy was issued after July 1, 1990…” Conn. Gen. Stat. § 8-30g(l)(9) provides that “a newly-constructed unit shall be counted toward a moratorium when it receives a certificate of occupancy.”

As a final note, a detailed determination must be made in awarding points for units in housing developments. Such a determination requires a detailed factual review of building plans, certificates of occupancy, etc. upon which we cannot opine. Since it involves a factual determination, any ultimate decision must be made by your agency.

Very truly yours,

RICHARD BLUMENTHAL