Attorney General: James F. Abromaitis, Commissioner, Department of Economic And Community Development, 2005-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

August 12, 2005

James F. Abromaitis
Commissioner
Department of Economic
  And Community Development
505 Hudson Street
Hartford, CT 06106-7106

Dear Commissioner Abromaitis:

In your letter dated June 7, 2005, you have asked for advice concerning the length of time for which accessory apartments must be deed-restricted for affordable housing to allow such apartments to be considered in determining whether a town has sufficient existing affordable housing to qualify for a temporary moratorium pursuant to Conn. Gen. Stat. § 8-30g(l). According to your letter, the Town of Trumbull has submitted an application for a moratorium which includes 106 ten year deed restricted accessory apartments. You ask whether accessory apartments with ten year deed restrictions may be counted as affordable housing "dwelling units" to qualify Trumbull for a moratorium, or whether such accessory apartments require forty year deed restrictions to be considered by your department when deciding whether Trumbull qualifies for a moratorium. Your question arises because the term "dwelling unit" as used in the moratorium statute appears to require a forty year deed restriction, whereas the term "dwelling unit" as defined in a different subsection, Conn. Gen. Stat. §8-30g(k), applies to accessory apartments with 10 year deed restrictions.

Conn. Gen. Stat. § 8-30g(l) governs the granting of temporary moratoriums and, in relevant part, provides that…

(1) Notwithstanding the provisions of subsection (a) to (j) inclusive, of this section, the affordable housing appeals procedure established under this section shall not be applicable to an affordable housing application filed with a commission during a moratorium, which shall be the four year period after (A) a certificate of affordable housing project completion issued by the commissioner is published in the Connecticut Law Journal …

(4) (A) The commissioner shall issue a certificate of affordable housing project completion for the purposes of this subsection upon a finding that there has been completed within the municipality one or more affordable housing developments which create housing-unit equivalent points equal to the greater of two percent of all dwelling units in the municipality … or seventy-five housing unit-equivalent points. …

(7) Points shall be awarded only for dwelling units which were … (B) newly subjected after July 1, 1990, to deeds containing covenants or restrictions which require that, for at least the duration required by subsection (a) of this section for set-aside developments on the date when such covenants or restrictions took effect, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as affordable housing for persons or families whose income does not exceed eighty per cent of median income.

Thus, for the purposes of the moratorium statute, "dwelling units" are counted if they have deed restrictions at least as long as the deed restrictions required in Conn. Gen. Stat. § 8-30g(a). That subsection, in defining the term "set aside development," requires "deeds containing covenants or restrictions which shall require that, for at least forty years after the initial occupation of the proposed development, such dwelling units shall be sold or rented at, or below, prices which will preserve the units as housing for which persons and families pay thirty per cent or less of their annual income, where such income is less than or equal to eighty per cent of the median income. . ." Conn. Gen. Stat. § 8-30g(a)(6). Thus, it would appear that for a "dwelling unit" to be included within the calculation for determining whether a town qualifies for a moratorium under Section 8-30g(l), the "dwelling unit" must have a 40 year deed restriction.

Conn. Gen. Stat. § 8-30g(l) does not define the term "dwelling unit" and does not specifically refer to accessory apartments. However, a different subsection, Conn. Gen. Stat. § 8-30g(k), includes accessory apartments with 10 year deed restrictions within the term "dwelling unit." Conn. Gen. Stat. § 8-30g(k) does not authorize a moratorium, but it does state that the affordable housing appeals procedure will not be available for affordable housing applications in towns in which at least ten percent of all "dwelling units" meet four listed criteria. Conn. Gen. Stat. § 8-30g(k) provides in pertinent part:

Notwithstanding the provisions of subsections (a) to (j) inclusive, of this section, the affordable housing appeals procedure established under this section shall not be available if the real property which is the subject of the application is located in a municipality in which at least ten percent of all dwelling units in the municipality are … (4) … legally-approved accessory apartments, which homes or apartments are subject to binding recorded deeds containing covenants or restrictions which require that such dwelling units be sold or rented at, or below, prices which will preserve the units as housing which, for a period of not less than ten years, persons and families pay thirty percent or less of income, where such income is less than or equal to eighty percent of the median income.

Subsection 8-30g(k)(4) which includes accessory apartments with 10 year deed restrictions within the term "dwelling units" was added by the legislature in 2002 with the passage of 2002 Conn. Pub. Acts, No. 02-87. In reviewing the legislative history of 2002 Conn. Pub. Acts, No. 02-87, it is apparent that the sponsors of the legislation intended that the amendment of the term "dwelling unit"to include accessory apartments with 10 year deed restrictions would apply to both Section 8-30g(k) and the moratorium calculation set forth in Section 8-30g(l). However, because Section 8-30g(l) was not specifically amended to reflect this legislative intent, the definition of "dwelling unit" as used throughout Conn. Gen. Stat. § 8-30g is ambiguous.

In construing a statute, we make "a reasoned search for the intention of the legislature … [w]e look to the words of the statute itself, to the legislative history and the circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." State v. Courchesne, 262 Conn. 537, 577 (2003). "The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra textual evidence of the meaning of the statute shall not be considered." Public Acts 2003, No. 03-154, §1. Inasmuch as the term "dwelling unit" as used in Section 8-30g is not "plain and unambiguous," we look to other factors relevant to our inquiry into its meaning, including the legislative history of the statute, the circumstances surrounding its enactment and its purpose.

The legislative history of the 2002 amendment to Section 8-30g(k)(4) indicates that the sponsors of the amendment intended that the inclusion of accessory apartments with 10 year deed restrictions within the term "dwelling unit" would apply to the moratorium calculation set forth in Section 8-30g(l).

In speaking on the floor of the House of Representatives in support of H.B. 5434, P.A. No. 02-87, the proponent of the Bill, Rep. Flaherty, stated:

And third, the bill, as amended does set up this identification of particular types of affordable units, manufactured mobile homes, and accessory apartments that need to be deed restricted to be counted. It's the ten year deed restriction as opposed to a 40 year deed restriction. That is referenced in other parts of the act. The reason that the ten years was picked was because a ten year period is long enough that there's some reasonable chance that there would be some turnover, particularly of the accessory apartment so that an affordable unit would become available to some potential tenant. On the other hand, it was not so long that it would be completely inconceivable to think of a homeowner willing to take advantage of this process.

And with regard to the deed restrictions, we set up a process for accessory apartments and manufactured mobile homes. That's a ten year deed restriction. This in contrast to the 40 year deed restriction that is referenced in other aspects of the act. So with regard to that, it neither extends nor reduces. It's just a slightly different process and we expect an easier process for manufactured mobile homes and accessory apartments.

(Emphasis added.) Transcript of the House of Representatives, May 1, 2002, pp. 115-17.

In as much as none of the "dwelling units" referenced in Conn. Gen. Stat. § 8-30g(k) have a forty year deed restriction requirement, Rep. Flaherty's statements can only be interpreted as meaning that accessory apartments with ten year deed restrictions qualified as "dwelling units" for other provisions of Section 8-30g as do the "dwelling units" contained in "set aside developments" which require a forty year deed restriction. Conn. Gen. Stat. § 8-30g(a)(6). Further, it is clear that Rep. Flaherty was of the opinion that it was unreasonable to believe that the owners of manufactured mobile homes or accessory apartments would place forty year deed restrictions on those units, while it was reasonable to expect that many would do so for ten years.

When reconciling Rep. Flaherty's explanation of the legislation on the floor of the House of Representatives with the use of the term "dwelling unit" in both Conn. Gen. Stat. §8-30g(k) and Conn. Gen. Stat. § 8-30g(l), it appears that the legislature intended to allow accessory apartments to be counted as "dwelling units" under both statutes if the accessory apartments had ten year, rather than forty year, deed restrictions. Only "dwelling units" in set aside developments would require a forty year deed restriction to be eligible for inclusion in Section 8-30g(l). It is also apparent that this intention was not clearly set forth in Conn. Gen. Stat. § 8-30g(l). However, the presumption is that the legislature, in adopting an act, does so in view of existing relevant enactments and with the intention that the act be read with them so as to make one consistent body of law. Wilson v. West Haven, 142 Conn. 646, 654 (1955). "[W]e presume that the legislature intends sensible results form the statutes it enacts … Therefore, we read each statute in a manner that will not thwart its intended purpose or lead to absurd results." Collins v. Colonial Penn. Ins. Co., 257 Conn. 718, 728-29(2001) (citations omitted; internal quotation marks omitted.)

Accordingly, it is our opinion that the term "dwelling unit" as used throughout section 8-30g, most particularly in Section 8-30g(l), is ambiguous and that legislative clarification should be sought on this important issue.

This office has been informed that Trumbull's application for a moratorium has been "deemed provisionally approved" pursuant to Conn. Gen. Stat. §8-30g(l).1 In light of the ambiguity in the statute and the legislative intent expressed in Public Act 02-87, this office recommends that you allow Trumbull's application to remain "provisionally approved" until the General Assembly has the opportunity to address this matter in its next legislative session.

Very truly yours,


RICHARD BLUMENTHAL
ATTORNEY GENERAL


1Conn. Gen. Stat. §8-30g(l) states in pertinent part:

"If the Commissioner fails to either approve or reject the application within such ninety day period, such application shall be deemed provisionally approved…Such provisional approval shall remain in effect unless the Commissioner subsequently acts upon and rejects the application in which case the moratorium shall terminate upon notice to the municipality by the Commissioner."


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