THE COMMUNITY BUILDERS, INC. image
Draft rendering of new apartment building.
Emily Hays file photo
Kensington Playground.
Maybe the developer will build around the trees?
A city-hired attorney offered that defense in state court during the latest hearing about whether or not New Haven violated a state environmental law by agreeing to sell a Dwight public greenspace.
That’s the latest in the ongoing case Friends of Kensington Playground v. City of New Haven.
Parks group attorney Keith Ainsworth and city-hired attorney Nancy Valentino duked it out, legally speaking, before state Superior Court Judge James Abrams during a live-streamed virtual hearing on the city’s motion to strike a key part of the underlying lawsuit.
Abrams did not issue a ruling during Wednesday’s hearing itself; he is expected to submit a written order on the matter soon.
The state court case dates back to November 2020, when a group of Dwight open-space advocates filed a lawsuit looking to stop the city from selling a 0.67-acre park on Kensington Street for $1 to The Community Builders (TCB).
The Boston-based developer plans to build 15 new affordable apartments atop the public greenspace as part of TCB’s $30 million Phase 2 redevelopment of the adjacent Kensington Square apartment complex. The city in turn has agreed to set aside new public parkland in Newhallville, while TCB must invest $80,000 in improvements at the nearby city-owned Day Street Park.
In June 2021, a state judge threw out half of the park advocates’ lawsuit after agreeing with the city that Dwight resident Patricia Wallace and the park friends group do not have legal standing to sue the city under a state law that limits how municipalities may “take” open space. Click here to read more about that decision.
That left only one legal allegation remaining in the parks group’s bid to stop the city from handing over the park to the housing builder.
That allegation — that the city’s park-transfer approval violates the Connecticut Environmental Protection Act (CEPA), or Connecticut General Statutes § 22a-16 — was at the center of Wednesday’s hearing.
Thomas Breen file photo
State Judge James Abrams.
Valentino kicked off the hearing by making the case for the city’s motion to strike from October 2021.
CEPA allows someone to sue the state or a municipality “for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction,” she said, quoting the law itself.
The Connecticut Supreme Court, meanwhile, has found that, in order to sufficiently state a claim under CEPA, a party must set forth “factual allegations to support the inference that impairment of natural resources will probably result from the challenged activity.”
In this case, she continued, the “challenged activity” is the city-approved transfer of the public greenspace from the city to the developer, which the Board of Alders signed off on in October 2020.
“It has not in fact been transferred yet,” she said. And she argued that the parks group’s lawsuit “fails to establish any facts to establish a nexus between the transfer of land and the conclusory allegations that unreasonable impairment of natural resources is likely to occur.”
Translation: All that has happened so far is the Board of Alders has approved and the Elicker Administration is trying to sell Kensington Playground to TCB. That in itself does not dictate what or how TCB will build at the site when it attains ownership.
Valentino said that the parks group could challenge a specific building proposal if and when TCB submits such a site plan to the City Plan Commission. (She did not mention that the City Plan Commission signed off on just such a site plan approval for a 15-unit project at this site back in 2019.)
“Perhaps at that time when the plans have been approved, or even submitted, the plaintiffs can allege factual allegations” sufficient to infer “unreasonable” harm to the greenspace, she concluded.
“The transfer of the property does not constitute or even infer the destruction or impairment of the natural resource.”
Ainsworth disagreed.
“I don’t think the law requires that we have to wait until they actually damage the property or damage to the environment to file for injunctive relief,” he said.
He said that what the parks group is challenging is that the city has approved the transfer of the park to a third party for the purpose of building housing. One can logically infer that “if you put housing where there is now a park and trees and grass, those trees and grass will no longer” provide the same level of environmental benefits as they currently do.
Constructing housing at this site “will result in a reduction of the urban forest canopy and the ecological services it provides,” he said.
He also repeated the parks group’s longstanding argument that the parkland that the city proposes to set aside in lieu of the Kensington Playground is fragmented and insufficient to replace what will be lost on Kensington Street.
Valentino pushed back. “We’re obviously not suggesting that the plaintiff has to wait until [there has been] harm to the environment before they raise a claim,” she said.
But in order to sustain their CEPA claim, they have to allege facts that infer that “harm is likely to occur in the challenged actions of the city, which is the tranfer of the property.”
“The allegation that this may result in a loss of some foliage, some trees, the natural canopy, is based on nothing,” she continued. “There’s nothing to get us there.” That is, there is no building plan in place that actually shows that trees and other greenspace will be harmed.
“As far as the plaintiff knows, they could build around the trees,” Valentino said. “The trees could never be harmed.”
Abrams thanked the two sides for their arguments before closing out the hearing.
CEPA is an extraordinarily broad law that can be used to protect trees. But the Friends need to make a preliminary showing that a substantial number of trees will be destroyed. One way they could do this is by preparing a rough site plan, based on the developer's proposal and then estimating the number of trees that would be taken. Obviously the developer could disagree. But then the ball would be in its court to come up with a better estimate.