Judge Keeps Kensington Playground Lawsuit Alive

A Kensington Playground-focused lawsuit got a new lease on life, after a state judge rejected the city’s request to strike down the case.

That means that a parks group is now allowed to keep trying to prove that 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.

On June 9, state Superior Court Judge James Abrams handed down a 19-page decision in which he turned down the city’s October 2021 motion to strike a key part of the underlying lawsuit.

In particular, Abrams found that the parks group — led by Dwight resident and co-plaintiff Patricia Wallace — have sufficiently argued that city government might have violated the Connecticut Environmental Protection Act (CEPA), or Connecticut General Statutes § 22a-16, when it signed off on selling a 0.67-acre park on Kensington Street for $1 to a Boston-based affordable housing developer.

At this stage of the case, in order for the lawsuit to move forward, the parks group did not have to definitively prove that the city did violate that state law. It just had to make the case that there is enough factual and legal heft to their argument that, if everything the plaintiff says proves to be true, the court could find that New Haven illegally harmed the environment. 

During a March court hearing and in related legal briefs, a city-hired attorney argued that the parks group had not cleared that legal bar, and that it had not sufficiently alleged how the city’s actions might harm the environment. 

In his latest decision, Abrams disagreed — siding with the parks group’s contention that a legal could be made that New Haven has violated state environmental law in this case.

“Several of the plaintiffs’ allegations are directed to the environmental impact of the impairment or destruction of the park,” the judge wrote towards the end of the decision.

“The allegations specify the harm likely to occur as the clearing of mature trees, a permanent loss of playground and open space in the neighborhood, a loss to the neighborhood residents of the healthful effects of an urban park, a reduction of the forest canopy, a reduction of the ecological services provided by the trees and vegetation in the park, and fragmentation and reduction of ecological and recreational value of the open park space. The plaintiffs allege that these harms will occur because the defendant proposes to take land currently designated on zoning maps as park land and develop that land without replacing it. 

“Construed broadly and realistically and in favor of the non-moving party, the plaintiffs’ allegations support an inference that ​‘unreasonable pollution, impairment or destruction of a natural resource will probably result from the challenged activities [of the defendant] unless remedial measures are taken.’ … Consequently, the plaintiffs have sufficiently stated a cause of action under § 22a-16. … For the forgoing reasons, the court hereby denies the defendant’s motion to strike the revised complaint.”

Click here to read Abrams’s decision in full.

In a press release, Wallace praised Abrams for finding that ​“the environmental issues in the suit are serious enough for the case to stay alive.”

“City kids and parents need playgrounds to have fun and to get exercise,” Wallace is quoted as saying in the press release. ​“Our playground has no playscape and a broken splash pad, which need to be addressed. Once the land and trees are gone, we will never get them back. The Court decided that we deserve our day in court to make our case that the City is on the wrong side of the law.”

In an email comment provided to the Independent on Thursday, city Corporation Counsel Patricia King described the lawsuit as focused on the city’s ​“repurposing of an underused pocket park for new affordable housing.” 

“While the court denied the City’s motion to strike and has allowed the plaintiffs claim to proceed under CEPA, the burden of proof remains on the plaintiffs to prove their claims at trial,” King wrote. ​“Unfortunately, New Haven residents now need to wait longer for much-needed affordable housing and for improvements to Day Street Park, which includes a new splash pad for neighborhood children a block away.”

The state court case itself dates back to November 2020, when the Dwight open-space advocates first filed a lawsuit looking to stop the city from selling Kensington Playground 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 the plaintiffs did not have legal standing to sue the city under a state law that limits how municipalities may ​“take” open space. That left only one legal allegation remaining — that the city’s park-transfer approval violates CEPA.