Data suggests dozens of towns are violating CT Supreme Court decision on exclusionary zoning

Jacqueline Rabe Thomas :: CtMirror.org

Connecticut is home to wealthy suburban towns like Westport, above, where exclusionary zoning practices have led to segregated communities.

Numerous towns are likely violating a decades-old Connecticut Supreme Court ruling that determined zoning regulations requiring a minimum square foot requirement for new homes are illegal because they are “a form of economic discrimination,” according to a study by Desegregate CT.

That is just one of the findings from a months-long effort by the group to map exclusionary zoning requirements throughout Connecticut.  It was released Wednesday as debate heats up at the state Capitol on exclusionary zoning and affordable housing.

The advocacy coalition also found that local officials have required large lot sizes of at least 0.9 acres to build single family homes on the overwhelming majority of the land in the state, and that nearly every town prohibits the construction of multi-family housing without special permission from local officials. Her coalition also found eight towns only allow single family homes to be built.

“The prevalence of minimum unit size is really amazing,” said Sara Bronin, a zoning expert at UConn School of Law and founder of Desegregate CT, a coalition of dozens of non-profits lobbying the legislature to pass land-use reforms to help reverse the state’s status as one of the most segregated places in the country.

The map raises questions about whether the groundbreaking Supreme Court ruling from 1988 is being followed. That case involved a truck driver who wanted to build a moderately-priced single family home in East Hampton that was smaller than the minimum square feet the town required, but was denied.

“The court in that case said that you can’t have a minimum unit size unless it’s tied to health and safety, which is typically 150 square feet per person. But if you click on that [on the map], you’ll see many, many towns are illegally requiring a minimum unit size,” said Bronin during an interview.

During a press conference, she said her coalition has not done a legal analysis to determine which towns may have legitimate health and safety reasons for such barriers.

“I think for now our purpose in providing the data is to have a starting point for every town to look closely at what kind of zoning they allow,” she said. “Our purpose in doing this research is really to put it out there how towns zone — and the conclusions that people draw from it will be wide and varied and we’re looking forward to that, what people see.”

Desegregate CT

In grey are areas throughout the state that have a minimum square foot requirement for single family home. Click on the image to explore the interactive map.

The timing for the release of this data is strategic.

The General Assembly is nearly one month into a five-month session in which Democratic legislative leaders and the governor have said they are interested in tackling the need for more affordable and moderate-priced housing as a social justice issue, but opposition is mounting among  Republican lawmakers to any reforms that would chip away at local control over land-use decisions.

A coalition of Republicans are proposing a constitutional amendment to prevent “state interference” in local zoning and the Republican minority leader of the committee that oversees zoning is proposing legislation that would create a so-called “bill of rights” that establishes zoning as a right left to local officials. Meanwhile, the Connecticut Working Families Party — which endorsed just over one-third of the current members of the legislature during the last election — has listed tackling segregation in schools as a top priority during the current legislative session and held a forum on the issue on Tuesday evening with legislators and the public.

The interactive map released by Desegregate CT Wednesday showing zoning policies also came the day after President Joe Biden signed a historic memorandum that both acknowledges the country’s dark history of discriminatory housing practices and policies and orders a review of current policies and laws that perpetuate segregation today.

“Ongoing legacies of residential segregation and discrimination remain ever-present in our society,” Biden wrote to the U.S. Department of Housing and Urban Development. “This is not only a mandate to refrain from discrimination but a mandate to take actions that undo historic patterns of segregation and other types of discrimination and that afford access to long-denied opportunities.”

The issue may be gaining traction in the governor’s office, as well.

During Gov. Ned Lamont’s State of the State address earlier this month he pointed out that Black Lives Matter protests following the death of George Floyd at the hands of white police in Minneapolis show that much work remains. To that end, Lamont said, he will propose increasing spending on affordable housing in his budget that will be released in early February.

“Racism is a virus that knows no borders… Protests are only meaningful if they are a call to action,” said Lamont, a Democrat in the third year of his four-year term. “This coming year, we will be expanding our commitment to affordable housing, access to broadband, transit-oriented development, open choice school incentives… That’s how we get CT growing again, and working for all of our families, with liberty and justice for all.”

What remains unclear is whether Lamont plans to just infuse more money for affordable housing under the current legal framework, or expend some political capital and propose changes to current state laws that would make it easier for non-profits and developers to build affordable housing in recalcitrant wealthy towns. The governor, who enjoys a Democratic majority in both chambers of the General Assembly, has not announced whether he intends to seek reelection.

During his first two years in office Lamont deferred to the legislature to take the lead on issues related to affordable housing and zoning reform, though he expressed to the Mirror multiple times that he was hesitant to increase state involvement despite evidence that many towns resist or actively fight the construction of affordable housing.

He hinted during a meeting with reporters at the CT Mirror Wednesday that he may be ready to take a more active role in increasing the state’s allotment of affordable housing.

“I want them to know where I stand … on, you know, social justice and transit development versus downzoning. I mean, I think it’s very important that people have a better sense and know exactly where I stand. And I think that’s probably a little different than my first year where I kept the door open for negotiation more,” he said. “Protests are only meaningful if you follow up with action. I am going to be looking hard at affordable housing and transit oriented development and making sure people can live in the community where they [work].”

While Lamont regularly points to transit oriented development — where more housing density and commercial development is focused around mass transportation hubs — he has not weighed in on whether he supports one of the chief priorities of Desegregate CT, which would require local officials to zone at least half the land within a half mile radius of the town’s main train station for multi-family housing. Developments that are built with more than 10 units would be required to set aside 10% of the new units for affordable housing for low-income residents. His predecessor, Gov. Dannel P. Malloy, attempted unsuccessfully late in his 8-year tenure to increase state involvement in zoning decisions with close proximity to train stations.

Reaction to Desegregate CT’s proposal has sparked pushback among some housing advocates, who worry narrowing a requirement to such a small section of a town would effectively let many communities off the hook — and reduce their obligation to adhere to the federal Fair Housing Act which they say requires towns and states to establish zoning regulations that affirmatively further fair housing everywhere, not just around train stations.

But in a legislature where zoning reforms face so much pushback — especially among vulnerable Democrats representing some of the nation’s wealthiest and most exclusive suburbs — large-scale zoning reforms have not been embraced. Bronin’s proposal would require at least some movement on the issue in towns completely void of affordable housing around train stations.

A screen grab of the so-called “Gold Coast” in Southwest Connecticut. This map shows in purple how much of the land that is within a half mile radius allows multi-family housing without needing special permission from local officials. Click on the image to explore the interactive map.

While Democratic legislative leaders want to see changes that help pave the way for more affordable housing and zoning reform, the leader of the state Senate supports requiring more housing density around train stations while the Speaker of the House is not yet willing to weigh in on the subject.

“I think there should be some broad support for looking at creating greater zoning density and flexibility and diversity in transit districts,” Senate President Pro Tempore Martin Looney, D-New Haven, told reporters earlier this week. “The restrictive zoning conditions that may exist in a given community should need to be relaxed to allow for greater density housing in those areas of the state, which often are way below the 10% threshold for affordable housing that’s the goal under [current state law]. And I think that tying it to transit areas would be a move in the right direction and a significant addition for the way we try to incentivize creation of affordable housing… It would say that whatever restrictions exist in that community regarding density of housing and large acre lots and all the rest would not apply within that radius of a transit hub.”

House Speaker Matt Ritter, D-Hartford, however, said he wants to see housing advocates agree about a path forward before committing to one idea over another.

“I think what I’m trying to do is there are different advocates and different ideas, and I am not sure that they’re all talking to each other right now. And so I think my job as a leader is to get some people in the room who are not communicating, because I am getting people who have different perspectives of how best to address this, both in my own delegation and in the Democratic Caucus, but I do think we will have substantive legislation [that] makes a difference,” he said. “We’re gonna do our best product by trying to get people to communicate with one another because what I’m finding again is, there’s a lot of ideas, and we’re not getting everybody on the same page right now.”

Republican leaders see it differently. They want the state to back away from getting further involved in zoning.

“I think generally speaking each town should be left up to their own devices on local development,” said House Minority Leader Vincent Candelora, R-North Branford.

He points out that Wallingford, which he represents a section of, has a downtown train station that has seen an uptick in activity with the Springfield train line.

“That town is already poised on developing around their train station, and doing it in a way with not just affordable housing but looking at mixed use housing. So I think that we need a broader approach and we need to allow for towns the flexibility in developing housing,” Candelora said, adding that “right to housing” development proposals are a “mentality that has gotten us into trouble where developments haven’t gone so well. … I’m always concerned with the top-down approach, I’d rather see a ground-up.”

Kevin Kelly, the Republican minority leader in the senate, agrees.

“First, let’s be clear why housing is so unaffordable in Connecticut is because it’s so expensive, coupled with an underperforming economy,” he said. “I come from Stratford — you have Bridgeport (next door) — the statute itself is designed to not have investment in cities like Bridgeport to bypass and to come to places like Stratford, where we have been the beneficiary of affordable housing within … a radius of the train station.

The state Department of Housing characterizes 7% of Stratford’s housing as affordable and the interactive map shows the community would likely be impacted by the transit development proposal since they don’t have a visible amount of land zoned around their station for multi-family development.

Still, Kelly remains opposed to more state involvement in zoning.

“This issue is another issue of what I think the left’s agenda is: to take and control more issues in Hartford … and take that away from our community and our people, he said.

Bronin, who is also the former chairman of Hartford’s Planning and Zoning Commission, said she hopes the map will help propel movement at the Capitol and help people understand better what’s happening in their community. It also allows people to see how various proposals would impact their towns directly.

“We think this map will be used by policymakers by advocates, by community members, developers, neighbors, nonprofits, anybody who is interested in seeing how housing is developed and how zoning constrains the way housing is developed. It is a tool, both to help us chart the way our communities are now, and also to help us envision how they might change for the future,” she said.