KENT, Conn.—The Planning and Zoning Commission received an update on the implications of the controversial and somewhat ambiguous 2025 Housing Growth Act last week.
Land use attorney Michael Zizka told the commission that the “entire land use bar is trying to figure out this poorly written act.” He predicted that “some commission, somewhere, will be a test case to figure out what it means,” adding that he could only give “best guesses” about some of its provisions.
The thinking behind Connecticut’s 2025 housing legislation was to address the state’s severe housing shortage. Lawmakers hoped to balance a dire need for affordable homes with local zoning restrictions by shifting to a regional approach that encourages municipalities to plan for growth.
Prior efforts to promote affordable housing set quotas for towns to meet, requiring that each town have 10 percent of its housing stock as affordable. Failure to reach this goal brought with it a provision that allowed developers to bypass local zoning regulations to build housing if affordability requirements were met.
The new Act seeks instead to incentivize municipalities to create housing growth plans and to allow higher-density developments near public transit and where there are greater numbers of jobs. If the requirements are met, towns are eligible for state funding and larger school construction reimbursements.
While laudable in its intent, the Act comes with challenges for local zoning boards. Among them is a provision that takes away local zoning boards’ ability to determine minimum parking requirements for residential developments.
“This legislation has taken all your power when it comes to off-street parking for residential uses,” Zizka said. “The legislature contends that parking regulations are preventing housing being from being built.”
He predicted that this portion of the act will be adjusted as being “too extreme,” but in the meantime local zoners have lost the power to dictate the number of off-street parking spaces needed for multiple-family housing developments with 16 or fewer units.
“For more than 16 units or in Conservation and Traffic Mitigation Districts [CTMDs] the commission can set standards, but no higher than stated in the statute,” Zizka told the board.
Municipalities may adopt up to two CTMDs, each of which can cover four percent of the town’s land area. In a CTMD, towns can enforce a maximum parking requirement of one space per studio or one-bedroom unit, and two spaces per two-or-more bedroom unit.
But even those standards are not ensured. Municipalities may impose the minimum parking requirements, but developers can counter with a parking needs assessment. If the assessment indicates a lesser amount of parking is sufficient, the commission must limit the required spaces to the lesser amount.
Even though he believes this portion of the new statute is subject to revision, Zizka said the town must adhere to the law. He suggested that its existing standards be retained as “suggestions only” for developers of what the commission believes is best.
If fewer parking spaces are proposed than are recommended, the commission can evaluate whether the lack of spaces will have a specific adverse effect on public health and safety. If its finds such an impact will not negatively affect the viability of the development, it may deny the application.
“I think that may be very important in some areas,” Zizka said. “In downtown areas, you may find that multi-family housing with no off-street parking will create a specific problem.”
Kent is notoriously short of parking options on weekends so the provision leaves the commission with a scrap of power to address this.
He said he had reworked the town’s zoning regulations regarding parking, so all the necessary language is in one package. Land Use Administrator Tai Kern will prepare it for a public hearing next month.
Other portions of the new Act are so confusingly written that municipalities will have to interpret them—and hope a judge agrees with those interpretations. In reference to Connecticut’s Transit Community Middle Housing law, municipal zoning regulations allow two- to nine-unit residential buildings (townhouses, duplexes, triplexes, etc.) on any lot previously restricted to commercial or mixed-use developments, subject only to a summary review.
“That sounds as though it should be a transit community, but the definition says it just has to be multi-family housing with between two and nine units,” Zizka said. “A court would find that the definition doesn’t say anything about ‘transit.’ And the structure of the language is not clear. It says these developments can be allowed on commercial or mixed-use lots. ‘Or’ usually means one or the other, but you could be forced to allow both. Some attorneys are starting out taking the position of ‘we’ll push this issue,’ arguing that if you allow mixed use, that’s all they have to do. If you have transit community housing, they have done what they need to do.”
He does not believe this to be the correct interpretation. “To say you will allow a mixed-use development on a lot already zoned for mixed use –why would the legislature say that?” he asked. “I think probably you have to say you only allow one or other.”
Further, he said the statute does not say a commercial or mixed-use zone but rather specifies “lots.”
“You would have to allow developments on any lot zoned for commercial or mixed use,” he said. “I can almost assure you that some developer will go to court and argue that a lot that allows a commercial use [such as a home occupation] is zoned commercial. If that is what the statute is interpreted to mean, you could be forced to allow developments anywhere. If you argue that the statute means a commercial zone, a court might say, ‘That’s what was meant, but not what was said.’”
A further wrinkle comes in the provision for approval through “summary review.” This is defined as being able to approve a proposal that is in accordance with the zoning regulations without a public hearing or variance “or some other discretionary zoning action.”
Zizka agreed that most commissions would not have a public hearing about a site plan because of time restraints for acting on it, but said the “summary review” wording takes away the right to have a public hearing.
“My biggest concern is when it talks about discretionary decisions,” he went on. The question becomes what is a discretionary procedure? One could consider that saying you want a change in a site plan is discretionary. The problem is, where does it become so discretionary that you violate this statute.”
He suggested that the Architectural Review Board remove its “loosey-goosey” language and replace it with objective statements. “They should make it their standard that the architecture should look like nearby buildings rather than just saying an application doesn’t fit,” he said.
PZC Chairman Karen Casey termed the changes “a little scary.”
Commission members wondered if they should wait before changing their regulations to comply with the new state statute. ‘There is no advantage to waiting,” said Zizka. “If you don’t have anything in your regulations, you’re more likely to have someone come in an be nasty with you. It’s not a good look. What I have proposed for the parking regulations, and the change to the village hamlet and business districts show you made an effort to do something.”
Member Sarah Chase wondered if towns could challenge the provisions in the statute. Zizka said that would be a “fool’s errand.” “It is clear that the state gives you the authority to have zoning. If the state withdraws that power, you can’t require parking beyond what the statute says.”
The commission decided to set up a subcommittee to consider how it will handle some of the ambiguities and contradictions in the new statute.
