nothin Park Case Q: Can City “Take” From Itself? | New Haven Independent

Park Case Q: Can City Take” From Itself?

Courtney Luciana photo

Sign posted in Kensington Playground.

The first court hearing in a months-long dispute over the future of Kensington Playground raised a broader question: Can the city be accused of taking” land that it already owns?

That query hung over Wednesday morning’s 20-minute virtual court hearing in the case Friends of Kensington Playground v. City of New Haven.

A group of Dwight open-space advocates has sued the city in this case for agreeing to sell a 0.67-acre park on Kensington Street for $1 to the 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.

On Wednesday, state Superior Court Judge Robert Young heard city-hired attorney Nancy Valentino and parks group-hired attorney Keith Ainsworth make their respective cases in response to the city’s Feb. 26 motion to dismiss the first count of the original lawsuit.

City: New Haven Can’t Take” From Itself

YouTube

Wednesday’s virtual court hearing. Clockwise from top left: Attorney Perito, Judge Young, Attorney Valentino, Attorney Ainsworth.

The judge’s questioning and the opposing attorney takes returned again and again Wednesday to Connecticut General Statutes § 7 – 131n.

First passed in 1975 and updated in 1977, that state law requires towns and cities that take” parkland and put it to other uses to replace that open space with land comparable in size and value. The law also requires municipalities that engage in such open-land taking” to hold a public hearing specifically about the parkland being lost, the open space it will be replaced with, and the reasons behind the land swap.

The first count of the original Kensington Playground lawsuit argues that the city violated both parts of 7 – 131n: that it is taking” open land without providing an adequate replacement, and that it did not hold a proper hearing specifically about the open land loss and replacement.

On Wednesday, Valentino doubled down on an argument that she and fellow city-hired attorney James Perito first made in their motion to dismiss.

That is: The city cannot be accused of taking” land it already owns.

This is essentially a property being transferred and the use of the property is going to be something different than what the property currently is,” Valentino said. It is not a taking” in the sense implied by the law.

Perito and Valentino go into further detail on this point in their Feb. 26 motion to dismiss.

The language of the statute is clear and unambiguous,” they wrote. In order for § 7 – 131n to apply, the property at issue must be taken by the municipality. The City of New Haven has not taken the Property at issue as it is the owner of the land. All the City has done is authorize the transfer of its ownership interest in the Property to a third party.”

The city-hired attorneys then cite state Superior Court decisions from 2015 and 2021 that they say show that a property cannot be taken by a municipality that already owns it.” Both cases were presided over by state Judge Marshall Berger. In one case, the attorneys quote Berger as writing, The municipality did not take this land; it already owned it.”

I’m a little concerned with this idea of taking,’” Judge Young said in Wednesday’s virtual court hearing. He said he had reviewed both of Judge Berger’s opinions. Have either of those actions been appealed?” he asked Valentino.

No, the city attorney replied.

Are you aware of any other jurists that have opined on the definition of taking’ that Judge Berger has taken?”

I haven’t come across any other cases that discuss the interpretation of taking” in that way, Valentino said.

With all due deference to Judge Berger and his definition of taking,’” Young said, the notion that a city cannot take” from itself sort of negates the purpose of 7 – 131n,” which is to protect open land and ensure that it is replaced with land comparable in size and value, does it not?

Valentino reiterated that she does not see this particular case as one of taking,” but rather of the conversion” of a property from one use to another.

Parks Group: City Appears Condemned To Repeat History”

Thomas Breen pre-pandemic file photo

Attorney Ainsworth.

Ainsworth pushed back on the city’s use of a different word to describe the same underlying action.

The purpose of 7 – 131n was to keep the status quo for the amount of parkland and the quality of parkland, to stop it from being eroded, because it is such a limited and valuable resources, particularly in urban settings where parkland is of limited number and size.”

He told the judge that he based his understanding of the legislative intent of the 1975 law on his interpretation of the plain language of the statute itself, as well as by the context in which that law was passed.

That context, Ainsworth said, appears to have been New Haven city government taking public space more than five decades ago for the creation of new public schools.

In virtual court on Tuesday and in his written March 13 objection to the city’s motion to dismiss, Ainsworth quoted then-state Rep. Vincent Villano offering the following testimony during the 1975 legislative debate around the park replacement law:

Mr. Speaker I’m in support of this bill,” Villano said. New Haven is an example of what happens when the State or the city itself takes over parkland. Now you’re familiar with the fact when the Highway Department went through and took up City Point Park; they took up a park where they built the high school… the Hillhouse School; they took up parkland where they built the Wilbur Cross High School…”

Ainsworth also argued in the March 13 court filing that the two other state Superior Court cases cited by the city in regards to the definition of taking” are fundamentally different from the Kensington Playground case at hand.

In the Bushnell Tower case, the City of Hartford owned the park land being taken and still owned it after taking and moving that park to another location. In the Marinelli case, the City of Derby permitted a lease for a drinking water tank on municipal land that it still owned even after the lease.

This is materially different from the instant case in which the City will no longer own the land after transferring it to a third party for housing. Without court action, the park land in this case will be destroyed.”

New Haven, it seems, is condemned to repeat history,” Ainsworth continued in his written filing. The City has and continues to take, convert and destroy (but not replace) the park land it holds in trust for its citizens like Patricia Wallace and the members of the Friends of Kensington Park. Wallace and the Friends of Kensington have standing under several statutes and common law. This court has jurisdiction and should hear their cause.”

Young said on Tuesday that he would take the arguments under advisement, and that he would issue a decision on the city’s motion to dismiss in the coming days.

Young also suggested that the city and parks group might be able to short circuit” further litigation on this matter if the city agreed to hold a statutorily required separate hearing about the park loss, replacement, and purpose.

If the city was amenable to conducting [such a hearing], which perhaps the city should have done to effect due process for its citizens, perhaps we could have avoided some of the litigation.”

We Don’t Need To Choose Between Parks And Housing

Contributed photo

Cesar Lacen.

Cesar Lacen is a Kensington Square resident in support of TCB’s planned development of Kensington Playground. This write-up was submitted to the Independent on his behalf by the local public relations agency The Narrative Project. Click here, here, and here for previous articles about Friends of Kensington Park demonstrations and gatherings in opposition to the park sale.

Who gets to speak for a community?

That’s something I’ve been wondering a lot lately. Since last year, a small group of New Haven residents called the Friends of Kensington Playground (FOKP) have been fighting to stop the construction of a new affordable housing project on what is currently the Kensington Playground in Dwight. Their ongoing efforts would lead you to believe that the Dwight community does not want this project.

Some, like FOKP, do not, but others like myself are excited and eager for this project to move forward.

They don’t speak for me.

Which makes me wonder — who gets to speak for Dwight?

In November, FOKP filed a lawsuit against the city to stop the sale of Kensington Playground. This lawsuit has not just impacted the new housing but community members too. In addition to the new construction, which is a combination of affordable and deeply affordable housing, the project plans to renovate 88 apartments, improve and create new park space in Dwight and expand community-based resources and programming.

Since the new housing at Kensington Playground is part of the much larger project by The Community Builders, the lawsuit has forced the entire project to be put on hold.

As a 24-year resident of Kensington Square, the housing community at the center of this redevelopment, I am one of the community members who has been affected by the delay.

Our community deserves access to parks that are used and taken care of — Kensington Playground is not that.

The park has been represented as a community space that is used by children and families. This is simply not true and is a misrepresentation of reality.

I have lived in the Dwight neighborhood for over two decades and I have never once seen kids safely play in this park. Many residents like me do not use the space because we do not feel it is safe.

Parkland is important to me and I don’t think we should have to choose between parks and housing, but we are not losing anything with Kensington Playground. This parkland has been unsafe and underused for decades.

Transforming Kensington Playground into new housing will allow the space to be turned into a resource that actually supports community members.

There is such a great need for housing that we owe it to our neighbors to support more affordable housing in our community.

It is only now that a better use has been found for the space, that events are being hosted in the playground. We don’t need to give up housing to have parks. As part of the project we also have the opportunity for a new, small park on Garden Street and updates to Day Street park that is only one block away. Those are two parks just one block away from Kensington Playground.

My neighborhood has come a long way in the past two decades. I want to see it go further. If there’s going to be more developments and more housing — and there will be — I want it to be for me and my neighbors. I want it to reflect our hopes for the community. I do not want us to be left behind.

At the end of the day, if the lawsuit succeeds and prevents the new housing in Dwight, I will not be impacted. My home will still be renovated and modernized even if I have to wait a while longer. But everyone deserves to have stable, safe, and nice housing — not just those who already have it.

We don’t need to choose between parks for our neighborhood and homes for our neighbors. If we let it, the Kensington project can give us parks and affordable housing. Let’s choose both.

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