This is the first of a five-part series exploring issues surrounding Connecticut’s affordable housing crisis.
In 2021, as increases in housing prices and rents caused by the pandemic and inflation coincided with a renewed focus on racial and economic injustice, the Connecticut General Assembly passed its first significant affordable housing legislation since 1989. The 2021 law cut back on some aspects of local control of housing through zoning by mandating a new set of best practices, prohibiting several tools of exclusion, and establishing new aspirations.
Since then, however, reform has mainly stalled, even as rents and prices have continued to escalate. Meanwhile, some legislators have pushed back on the 2021 changes, vowing to protect “local choice” in land use regulation from further restriction.
As we head toward the 2025 legislative session, we remain in the throes of an affordable housing crisis. The data from one recent study are startling: the median price of a home in our state rose from $271,000 in 2019 to $389,300 in 2023, and the median rent increased from $1,440 in 2014 to $1,710 in 2023, with greater increases in many locations. To bring down housing costs, in addition to our 1.3 million existing residential units, we need an estimated 90,000 to 170,000 new or rehabilitated places for low and moderate-income households to live.
This article, the first of five, seeks to assist the 2025 discussion by starting with a step back and summarizing why affordable housing reform in Connecticut is so challenging. In pieces following over the next four days, I will address myths and misconceptions that impede discussions; environmental and financial considerations that compete with housing goals; “low-hanging fruit,” meaning reforms that should be easier to implement because they would merely extend existing law while preserving local choice; and “reaching goals,” reforms that could change the game if we can muster the political will to embrace redirection instead of tinkering.
I write based on my experience: 42 years as a land use and environmental lawyer, immersed regularly in affordable housing matters. In 1988, I handled a case in the Connecticut Supreme Court that outlawed minimum floor area requirements (in that case, a 1,200 square foot minimum for a single-family home) unrelated to the number of occupants. The court held that such rules serve no proper purpose of zoning, and are illegal economic segregation.
That case got the attention of a Blue Ribbon Commission on Affordable Housing, which right at that time (1988-89) was considering how our state should respond to the rapid escalation of housing costs in the 1980s and the fact that local zoning commissions, while regularly approving single-family homes on large lots, were routinely denying multi-family and affordable housing proposals, with the courts upholding local discretion. I was asked to take on a scrivener’s role in assisting that commission with drafting parts of what became General Statutes § 8-30g, our affordable housing statute. Since 1990, I have handled scores of affordable housing applications, and advised municipal and state officials, town planners, land use commissioners, and builders and developers about regulation, permitting, and compliance.
Most recently, in 2022-2023, I co-chaired a state-level working group that reviewed and assessed our existing zoning laws as they impact affordable housing, focusing on best and worst practices. Our work included evaluating affordable housing plans that each of our 169 towns was mandated in 2021 to prepare and file with the state in 2022 (eventually, 158 complied). We then compiled a list of recommendations about how to improve local regulation of lower-cost housing development.
In short, I have had a perch from which to identify present-day challenges, misunderstandings, caveats, and achievables.
Housing production requires land, permits, financing, and willing occupants. While federal and state fiscal policies and programs, inflation, supply chains, interest rates, property insurance premiums, land values, transportation costs, government investments and subsidies, lack of skilled construction labor, public support or opposition, and builder confidence all influence housing, zoning is state law that is administered at the local level, and if local government does not grant permission to build, the rest is immaterial. My focus, here, therefore, is land use regulation and permitting at the city and town level. (In the balance of these articles, I will use “town” to refer to all types of municipalities.)
Believe it or not, the critical problem in Connecticut with respect to housing is that most of the power to permit or deny housing development has been delegated by the state, for decades, to our 169 towns.
We abolished counties, the last vestige of regional governance, in 1965. Each town is approximately the same size. Beginning in the 1920s, the state delegated to each town the power to zone, which at its core allows each municipality to separate incompatible land uses and group together similar and compatible ones. This law was, and still is called, the Zoning Enabling Act. Under this law, local commissions wield enormous power over our everyday lives: their purview includes population density, building dimensions, traffic management, emergency access, trash disposal, parking, stormwater, drinking water, flooding, coastal management, lighting, air quality, billboards and signs, and open space, and in recent years climate change, resiliency, sustainability, and energy efficiency, to name a few.
But as an administrative structure for the regulation of housing development, this delegation to 169 towns is misaligned and dysfunctional.
First, it stands in contrast to nearly every major governmental function in Connecticut: environmental protection, health care, energy, public utilities, transportation, education, the judicial system, taxation, and public health, among others, are all administered at the state level, by one state agency, with one set of employees, administering one set of rules. There is no Department of Land Use. The zoning power is the purview of 169… well, fiefdoms…, and proposals to substantially modify this balance have long been an untouchable third rail in state politics. Small town boundaries may be historic and quaint, but they do not align with the responsibility of governing housing markets and needs, which are at least regional.
In addition, local land use agencies – zoning, planning, wetlands, and sewer commissions – are generally staffed by volunteers who historically have received little or no training in the land use laws they administer, much less the complex, consequential engineering, environmental, construction, real estate, and financial issues that they are asked regularly to evaluate and decide.
We must also bear in mind that the original 1920s Zoning Enabling Act was adopted primarily because it gave local governments a powerful tool to establish and maintain racial, economic, and even religious segregation. The elements of the act that facilitated these practices –- the power to separate uses, control residential densities, and specify infrastructure -– remain in the statute today. While federal and state laws and the courts have outlawed the most overt practices such as racial covenants (“white residents only”) and redlining, and our fair housing laws prohibit the most egregious practices, the zoning power can be and still is used to exclude and segregate.
Another piece of this bulwark is that, again historically, judges have been directed to defer to local decision-making, and in most matters to not “substitute their judgment,” especially when reviewing adopted regulations and permit decisions. (The one exception is General Statutes § 8-30g, which we will get to later.)
What are the consequences of our system for housing? First, the most dedicated, well-meaning land use commissioners are directed to consider only the benefits and impacts of regulations and development plans for the existing residents of their town, not the needs of the region, the state, or housing markets. Under our system, regulations and permits are parochial decisions.
Second, local commission members are indisputably under the influence of their fellow residents on controversial matters. If a land use proposal is opposed, especially in a suburban or rural town, by a petition signed by hundreds of residents, it is difficult for commissioners to be oblivious; they are importuned when they set foot in the supermarket or coffee shop. By law, land use permit decisions are not supposed to depend on public opinion (referenda are illegal in our state), but in reality this occurs regularly, because decisions are local. Proponents of “local choice” in housing, moreover, generally want zoning to remain a town-level decision precisely so they can exert control.
This, then, is the gauntlet through which affordable housing reform must pass. Housing in general and affordable housing in particular depend on the state-legislated balance of power between our state government and our towns. Our current governance structure stifles housing that the free market would produce if unshackled. The perennial issue has been, and will be in 2025, to what degree the General Assembly should further prohibit exclusionary practices and mandate rules and standards that will promote approvals of lower-cost housing.
There is no legal obstacle to the General Assembly reordering this balance. In Connecticut, towns have no inherent home rule authority.
So the challenge of affordable housing reform in 2025 will be to identify with more precision and comprehensiveness how towns are using their land use power to prevent lower-cost housing production; devise a specific list of powers and procedures to be purged, pruned, or clarified; create a revised list of shalls and shall nots; and then summon the political will to revise the state-local balance. To effectively reform our system, we need to be clear-eyed about what the systemic obstacles are.
Tomorrow: Myths and other misconceptions about affordable housing in CT.