Omnibus Housing Bill 6781
Home Rule Versus the State’s Fair Housing/Affordable Housing Mandates
By Staff Reporter John Tartaglia - March 15, 2023
........………The Fundamental Orders of Connecticut (1639) were the earliest, if not the first, constitution of civil government in America. They formed the basis for civic dealing among the various towns (then “plantations") within the Colony and for the general order and defense.
The system chosen was one of supreme local/town government with each town sending equal number of “deputies” convened periodically in a “Court” to decide matters common to the colony. The deputies were also authorized to and adjudicate controversies.
The Charter of Connecticut (1662), formed by the principal deputies, and with the approval of the then restored King of England, established a governor, confirmed the legal basis for the colony and ratified the Fundamental Orders.
The Town of Ridgefield was chartered in 1709 and operated within the colony under the Fundamental Orders.
In 1776 Connecticut adopted the Fundamental Orders as the new state’s constitution: The Tenth Amendment of Constitution of the United States (1791), to which Connecticut was one of the first signatories, provided that all powers, privileges and laws not delegated to the federal government were expressly reserved to the states. In the case of Connecticut, and by virtue of the laws then governing her, this meant that Connecticut’s system of civil government, as set forth in the Fundamental Orders, brought forward in the Connecticut Charter, contained the powers, privileges and laws vested in the citizens of Connecticut.
In 1915 the Connecticut Legislature established the Home Rule Act.
........……In 1969 Home Rule authority was adopted as Article Tenth in the State’s new constitution.
........……Connecticut’s next constitution was proclaimed in 1818, and its third in 1965. Both of them contained a clause (called the “survival of prior acts, deeds and corporate bodies’) which effectively maintained The Fundamental Orders. Indeed, the preambles to both the 1818 and 1965 Constitutions begin:
The People of Connecticut acknowledging with gratitude, the good providence of God, in having permitted them to enjoy a free government; do, in order more effectually to define, secure, and perpetuate the liberties, rights and privileges which they have derived from their ancestors; hereby, after a careful consideration and revision, ordain and establish the following constitution and form of civil government.
........……Both constitutions also provide:
All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit; and they have at all times an undeniable and indefeasible right to alter their form of government in such manner as they may think expedient.
........……Among other things, Home Rule includes, and always did include, the absolute local right to determine the disposition of lands within a town, the absolute right of a town to choose its own officers, and the absolute right to take such other action as the local legislature deems fit for the well ordering of their town, provided same are not repugnant to the State or Federal Constitution.
Under the Ridgefield Town Charter, the Planning and Zoning Commission is not the supreme legislature of the Town of Ridgefield. The Board of Selectmen is, but even its authority is limited by power to residents acting at the Annual Town Meeting.
The authority to tax property in Connecticut is devolved to the legislatures of each town, who are charged with maintaining, protecting and policing their own town, also a power reserved to the Board of Selectmen and, to a certain extent, to the citizens acting at the Annual Town Meeting. The delegation of the power to impose local tax, and the requirement that each town pay its own bills, confirms local supremacy.
It follows that, under Connecticut’s unique scheme of civil government, the state legislature does not have the constitutional power to impose upon any town any law or financial responsibility or other obligation or duty concerning the town’s land, the duties of its officers, or such other matters deemed necessary by the town’s legislature concerning the well ordering of the town’s affairs within town borders. This means that such matters relating to “inclusionary zoning”, “low income housing,” both of which relate to the town’s police power, as reserved in the Fundamental Orders is superior to the limited powers specifically granted the State’s Legislature under the State’s Constitution.
No State Constitution overrode the Home Rule Authority of Towns established in the Fundamental Orders or the “rights and privileges” reserved to the states as they were constituted when they joined the Union. It therefore follows the General Assembly’s exercise of zoning power under Connecticut General Statutes Section 8, (Zoning), contravenes the Fundamental Orders, the State Constitution, and the right to Home Rule.
Connecticut thus faces a “constitutional crisis”: The General Assembly contends that it has the overriding power to legislate all things in all matters affecting all persons in all towns within the state, yet legal history and Home Rule traditions demonstrate that its system of government never conferred such broad power. The Declaration of Independence (84 years younger than The Fundamental Orders) specifically ascribes similar abuse to King George III and made such misconduct a basis for rebellion.
Today, by virtue of population distribution, the cities, and their allied elites, presently control the General Assembly. But the question remains: can residents of other cities, other towns, impose their will upon Ridgefield concerning the conduct of its own affairs?
The “fire next time” will be a conflict between the traditional rights to private property as understood and documented by the Founders, to which the suburban and rural areas are in general accord, and the communal/central planning supremacy claimed during the “Socialist Revolution” (Marx, et. al.) which was proclaimed under a theory of the existence of other, non-specified, “potential” or “economic” rights, none of which were ratified in the constitutions.
Central planning is, at its essence, repugnant to the republican form of government embodied in the founding documents. Central Planning demands total control by the State, a consequence long associated with totalitarianism. This theory advanced by expedience under FDR and LBJ required a very broad interpretation of the “Commerce Clause” and the 14th (“Equal Protection”) Amendment, which gave the federal government massive central control, an approach which the dominant cities, and a particular political party, seem to be in accord.
It is not unreasonable to argue that all of the state legislature’s attempts to impose a “one-size-fits-all” mandate concerning “affordable housing”, “low income housing,” and the as yet unchallenged imposition of a peculiar “evidentiary presumption”, not found in the tradition of Connecticut Common Law, imposed under C.G.S. 8-30g, signifies a “battle of will,” a very deep civil conflict between the “big” (populous innovative cities) against the “little and weak” (less populated, more traditional towns). Yet Ridgefield has never been accused as violating the US Constitution or the State Constitution. Why is it required to bow down?
The General Assembly has made the imposition of these programs optional, not mandatory. The choice offered is illusory. The General Assembly embargoes the state tax dollars collected from all citizens in all towns, withholds the fair share due towns who don’t “opt-in,” and then redistributes the wealth only those towns who do “opt-in”, and they anyone who “opt-s-in” is mandated to be supervised by unelected “not-for-profits” who are to administer the program. The very idea contravenes the State’s declaration of individual rights and projects the state’s power well beyond what is necessary for the common good of towns, which the towns themselves have always been permitted to decide.
Either way civic tension is building. The legislature has proposed a plethora of fair housing and affordable housing legislation this year which it intends to impose on every town, regardless of Home Rule. I submit that the General Assembly’s “Fair Housing/Affordable Housing” legislation, in its present form, is unjust because it contravenes the State’s Fundamental Orders, the State’s Constitution, and 350 years of Home Rule tradition.
Ridgefield Has A Target on its Back
Ridgefield has a poverty rate of 2% and 3% of housing units are low-income restricted and qualify under 8-30g. Ridgefield is one of 70 communities out of the State's 169 communities that has a higher low-income restricted housing-units rate than poverty rate. But Hartford thinks Ridgefield is too white (85%) to privileged (median household income $158K) and too rural (25% open space). And they intend to put a stop to it.
Sadly, Ridgefield has local politicians and commissions who side with Hartford against Ridgefield's best interests. After months of contentious public meetings where Ridgefielders begged the Affordable Housing Committee, Planning and Zoning Commission and Board of Selectmen to reject a manifesto that disparages Ridgfield's zoning regulations as exclusionary and instead adopt a simple, brief and minimally adequate annex to the WestCOG Affordable Housing Tool Box.
Here are the two plans side by side.
Which one is the Ridgefield Plan and
Which is Hartford's Plan for Ridgefield?
Ridgefield Affordable Housing Committee's
31-page Tone Down Manifesto
Approved by a 3 to 2 vote of the
Board of Selectmen
An Alternative Plan
Proposed by Selectman Bob Hebert
Modeled After the 8 Annex Plans
From Neighboring Towns
Zoning is on the Ballot this November
"Affordable” housing is a euphemism for low-income restricted housing, for which only a small portion of local residents in suburbs would qualify and which would exclude most police and teachers who are often erroneously cited as beneficiaries. It does not make a town more affordable or reduce the incidence of cost-burdened households.
Instead, 8-30g enables housing developers to largely ignore zoning regulations governing height, lot coverage and setbacks if they deed-restrict 30% of the units to be affordable. With 8-30g, every town in Connecticut, no matter its size or natural environment, needs to have 10 percent of its housing deemed affordable or its Planning and Zoning Commission is at the mercy of developers.
Unfortunately, while 8-30g was enacted with a laudable mission of incentivizing the construction of housing for the disadvantaged, the law is deeply flawed with unintended consequences. For starters, most of the deed restrictions last about 40 years, and with 8-30g being in existence for over 30 years, we’ll soon see some of the affordable units ‘sunset.’ Once this happens many communities throughout Connecticut will have a high-density of apartment buildings and high rise condos, but no longer have the “affordable” units it has counted on to help people. And residents who qualified, will be required to move unless they pay current market rents.
8-30g is a great deal for developers and home builders, creating generational wealth for them, but a bad deal for most residential neighborhoods where higher densities are incompatible, depress property values, stress infrastructure, ravish the environment and encroach on or destroy historic resources.
As a grassroots group focused on local zoning, CT169Strong applauds a candidate running for governor like Mr. Stefanowski who speaks about the deficiencies of a law that was intended to do good things for disadvantaged people, but has in fact, failed all the people of Connecticut. It is a relief to hear a political leader clearly point out what many of us have been saying for years, that 8-30g is very limited, and it punishes towns that can’t meet the arbitrary 10 percent goal and destroys neighborhoods. Many Fairfield County towns are already 98% developed and meeting this arbitrary goal is next to impossible.
A profusion of bad housing policies have been proposed in the Connecticut General Assembly. In recent years housing development advocates and a majority of the Connecticut General Assembly have focused on weakening local control over land use decisions, unjustly blaming zoning for economic and racial disparities. Ignored is a responsible discussion of just what zoning does and doesn’t do and how it benefits communities.
First, zoning only applies to the use of land, not who uses it. When applicants seek zoning approval to develop land, zoning commissions look at the merits of the proposed development based on the facts and the governing law, and do not consider the identity of the applicants.
Second, Zoning benefits communities by ensuring consistency of land uses, types of development in different zoning districts, and the pace of change, all of which preserves property values, enhances a town’s economic stability, and protects historic and environmental resources.
All these are uniquely local benefits best suited to be fostered by the decisions of locally-elected officials, who are held accountable for establishing regulations that are faithful to the town’s Plan of Conservation and Development and who transparently apply those regulations without any favor or bias. Zoning is truly color blind.
In the last two sessions of the General Assembly, we have seen proposal after proposal come before various committees, including bills backed by housing advocacy groups like DesegregateCT, the Regional Plan Association and Open Communities Alliance, generally promoting centralized state-wide planning and zoning for Connecticut’s 169 municipalities. The bills have tended to mandate or incentivize density without regard for local capacity, and without requiring much affordability.
Last year’s bills, if they had been enacted, would have turned every suburban downtown into a small city, regardless of inadequate infrastructure, environment, historical areas, transportation and availability of jobs. There was no consideration of what doubling the entire housing stock with high rise apartments in downtowns would do, potentially creating greater congestion, stormwater runoff and pollution. The incentives within these laws would result in the gradual conversion of local commercial bases into residential development, and the parking required would cause inadequate parking for both residents and small local businesses. Coastal flooding and climate change resiliency and sustainability planning were largely ignored, as the bills would pack dense populations into areas that are most exposed to climate change.
Completely ignored in these anti-zoning bills, has been the much maligned 8-30g, which seems to generate as much litigation as it does affordable housing. These initiatives would have adversely impacted the goals of 8-30g, while also reducing the ability of towns to get out from under the draconian burden of 8-30g. Our legislature, in its zeal to push anti-zoning bills through, couldn’t even get a bill out of committee that would have studied 8-30g. In 2021, Gov. Lamont signed HB 6107 into law which removed the word ‘character’ from our zoning regulations, limited off-street parking requirements and mandated Accessory Apartments (subject to procedures allowing supermajority local override), and continued an effort by proponents to “chip away” at local zoning control. We expect more anti-local zoning bills to be introduced in the next session.
Among all the types of government regulation, land use is uniquely local, because land itself is local and is also greatly impacted by nearby development. Local residents are best suited to make those decisions on permanent changes to land use. The combination of 8-30g and the onslaught of anti-zoning bills has led to passionate local activism by neighbors whose quality of life and home values appear to be under attack.
Rather than demonizing zoning and seeking to dismantle local zoning regulation, Connecticut’s leaders should adopt a holistic, pragmatic approach to resolving housing issues and creating more opportunity for economic growth, higher paying jobs and home ownership, rather than creating an overabundance of high density market value rental units. It’s time to demand more.
. Alexis Harrison, Fairfield, CT
. Peter McGuiness, Darien, CT
. Tara Restieri, Greenwich, CT
. Maria Weingarten, New Canaan, CT
. Kirk Carr, Ridgefield, CT
. Members, CT 169 Strong