Anyone who remembers the CT Appellate Court's creative law making in the Tod's Point decision knows how this will turn out.

On 0.65 of an acre

In the Tod’s Point case that opened the beach to the general public, the Appellate Court had to invent law and case citations to achieve its goal of punishing Greenwich. In this case, the Legislature’s already done the work for them. (The Tod’s case never proceeded past the Appellate Court to the Supremes, but in terms of mindset, the two courts are practically identical.)

FWIW’s “Reader Up North” brings our attention to this news story (disable JavaScript to get past the cashwall.)

Battle over proposed height, scope of Fairfield apartment building reaches the CT Supreme Court

HARTFORD — The state Supreme Court had some tough questions Friday for lawyers representing neighbors and the Fairfield Planning and Zoning Commission's fight against the height and scope of a proposed five-story 40-unit apartment building that town officials claim is too close to the Old Post Road historic district.

Essentially, a builder applied for permission to build a 5-story, 60’ tall, 40-unit apartment building with 12 of those units dedicated to “affordable” housing. The town demanded that the size of the project be dropped to 3 stories and 30 units [the current height limit is 32’], the builder appealed, and the parties trudged north to sort things out. Things did not go well for Fairfield up in Hartford.

During two hours of hearings on the developer's lawsuit against the town, the panel of six justices, with the addition of state Appellate Judge Robert W. Clark, pushed back against attorney Barbara M. Schellenberg, representing the town, as well as attorney Joel Green, speaking for neighbors opposed to the .65 acre development, which would have a dozen affordable units. At the heart of the arguments was the state's controversial affordable housing laws under what is called the 8-30g statute.

Schellenberg said the zoning commission's rejection of the larger-scale project "struck an appropriate balance between the need to protect an important environmental resource and the need to increase affordable housing in the town. The commission appropriately placed the height condition on its approval of that application in order to safeguard an important environmental resource. The fact that the property is not in the historic district does not mean the commission cannot consider a negative impact on the district, which in this case is a negative visual impact."

Pointed questioning was led by Clark and Associate Justices Gregory D'Auria, Steven Ecker and Andrew McDonald.

"That's true, in an affordable housing context that they can evaluate the site in relation to an entirely different area of the community?" McDonald asked.

Schellenberg, noting that the commission wanted a scaled-down, 40-foot-tall, 30-unit structure, said the developer, whose principal according to state business listings is Danielle Bijanda of Trumbull, did not present a business plan.

"On what basis can the commission reject it?" D'Auria asked. … "The problem is, do these things get built?" … "And so you can approve them at lower capacities and kill it that way."

 Schellenberg noted that town officials asked the developer to return with a smaller plan. "So the commission can just say 'we think you can do it' without knowing it's feasible?" McDonald said.

Aesthetics also received short shrift.

[Homeowners’ attorney] Green argued "The character and the preservation and value of the historic district would be impaired by virtue of this building being at the gateway into the historic district"…. and [Justice] McDonald said that the word "character" has been used by many municipalities in "subterfuge" to stifle affordable housing and discourage lower-income people from moving in.

More at the link, but in general, Fairfield’s and the neighbors’ lawyers’ arguments were not well received, and because 8-30g shifts the burden of proof from a building applicant to the town that’s denying that application, I’d guess that Fairfield residents should begin planning a welcome party for their soon-to-be new neighbors.

Here’s a summary of how 8-3g operates, published by, ironically, the Town of Fairfield itself.

Affordable Housing (CT General Statute 8-30g)

FAQs related to CT General Statute 8-30g

1 - What is 8-30g?

Connecticut General Statutes § 8-30g, also known as the Affordable Housing Land Use Appeals Procedure, was enacted in 1989 as a way to facilitate the construction of affordable housing, particularly in communities that did not already have a large supply of affordable units.

Under this Statute, developers of certain types of affordable housing projects may override local zoning in municipalities where less than 10% of the housing units meets the statute’s definition of affordable. In order to be eligible, developers must “set aside” not less than 30% of the dwelling units as affordable for a period of not less than forty (40) years. In these so-called set aside developments, not less than fifteen percent (15%) of the units must be affordable to persons or households with incomes at or below sixty percent (60%) of the area median income, while the balance need to be affordable to households earning less than or equal to 80% of the area median income.

CGS 8-30g shifts the burden of proof from the applicant to the municipality. In order to reject an 8-30g application, the municipality must prove, based upon the evidence presented, that: (a) the denial was necessary to protect substantial public interests in health, safety, or other matters that the municipality may legally consider; (b) these public interests clearly outweigh the need for affordable housing; and (c) the public interests cannot be protected by reasonable changes to the proposed affordable housing development.