The Darien Times

Darien's affordable housing moratorium fight continues

Written by Susan Shultz
Friday, February 03, 2012 07:34 AM

After a New Britain judge declined to dismiss the suit brought against Darien and the state Department of Economic & Community Development by potential developers Chris and Margaret Stefanoni in October, all parties in the suit filed briefs during the last two months.

State statute 8-30g allows developers to overstep local zoning laws in towns such as Darien that do not have 10% of its housing classified as affordable. A developer may get around zoning laws if a proposal includes affordable housing.

The town was granted the four-year moratorium by the state in October 2010.

The couple is suing the state and the town to overturn the affordable housing law moratorium granted to Darien last year. Judge Henry Cohn of the New Britain Superior Court dismissed the request on Wednesday, Oct. 24.

Earlier this year, the state Department of Economic & Community Development denied a request from the couple that it file a declaratory ruling on the eligibility of some points awarded for the town's affordable housing moratorium.

Though the department said it considered the town's moratorium closed, at the time, the couple vowed the "war" with Darien will continue.

In late May, the Stefanonis filed a lawsuit against the state office, and named the town of Darien as a second defendant, once again asking the DECD to overturn Darien's moratorium on the grounds that Clock Hill Homes does not qualify.

The May lawsuit was the third time the couple has asked the state to revisit the affordable housing moratorium and the second time the state upheld its initial ruling.

Within the lawsuit, the Stefanonis assert that they "own additional property in the town of Darien and will be submitting within the next few weeks (an) application to the Darien Planning & Zoning Commission for a zone change for their property and an amendment to the Darien Zoning Regulations to allow the construction of affordable housing as defined by C.G.S. Section 8-30g on the site."

In the lawsuit, the couple still seeks a declaratory ruling stating that, despite receiving a moratorium from the state, the town of Darien did not earn enough points and the moratorium should be revoked.

The town needed 136 points to achieve the moratorium. The state rates housing based on how many occupants each unit provides.

It received 30 points for Clock Hill Homes, and 106 points for Avalon, after attorney Timothy Hollister provided a letter backing up Avalon as a set-aside development. The classification earned Darien another 36.6 points, though Hollister also agreed with the Stefanonis that Clock Hill is not worth 30 points and reported that to the state.

In a December brief, the Stefanonis assert that "the determination by the DECD that the units at Clock Hill Homes qualify for moratorium points is incorrect as the income restrictions in the deeds do not meet the statutory and regulatory requirements."

The couple says that to qualify for moratorium points, the deed restrictions must limit the prospective purchaser's income to 80% less than "median" income, "which in the case of the town of Darien is 80% or less of SMI (State Median Income), and not 80% or less of AMI (Area Median Income.)"

"Second, even if the higher 80% of AMI standard is applicable, Clock Hill Homes is still not eligible for any moratorium points as the deed restrictions allow for incomes in excess of 80% of AMI," they wrote.

In a brief filed in mid-January by the DECD, the department notes that the appeals process "allows any person whose affordable housing application is denied or approved with restrictions which will have a substantial impact on the viability of the affordable development to take advantage" of the appeal process.

"The plaintiffs do not currently have an affordable housing application pending before a commission, let alone one that has been denied," the brief states.

The DECD also points out that at the time of Clock Hill's construction, affordable housing was defined as using 80% of "area median income" rather than state median income.

Also, the DECD says that despite any documentation provided by the Stefanonis to prove otherwise, "all the homes sold at Clock Hill Homes, whether initial sales or resales, have been sold to families at or below 80% of AMI."

"For the foregoing reasons this action should be dismissed and the plaintiff's request for a declaratory ruling and order against the state should be denied," the DECD concludes.

The town also filed a brief, saying that the Stefanonis are "not aggrieved by the DECD's determination."

"They cannot prove their allegation that they are affordable housing developers, as they have never built affordable hosing anywhere, let alone in Darien, and they have no pending proposal or intention to build affordable housing that might be impacted by the moratorium resulting from the certification grant," the town's brief states.

The Stefanonis were granted a due date of Feb. 24 to file a reply brief by the courts.

"We look forward to filing our reply brief and to the upcoming hearing on the merits," Chris Stefanoni told the Darien Times.

"Our forefathers were brilliant in creating a system of checks and balances, and whether anyone in Darien likes it or not, judicial oversight of the town's actions is simply vital to lawful outcomes," he said.

The couple is currently in the process of appealing the town's decisions on two affordable housing proposals on Hoyt Street and Pheasant Run, and in a years-long court battle with the town over another affordable housing project at the corner of Leroy and West avenues.

sshultz@darientimes.com

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