Judge Sides With City, Dismisses Half Of Kensington Playground Lawsuit

A state judge threw out half of a lawsuit about the future of Kensington Playground, after agreeing with the city that a Dwight resident and a neighborhood parks group do not have legal standing to sue the city for selling the public greenspace.

State Superior Court Judge Robert Young issued that decision Wednesday in the case Friends of Kensington Playground v. City of New Haven.

That’s the ongoing state lawsuit first filed last November by a group of Dwight open-space advocates looking to stop the city from selling the 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.

Wednesday’s decision, which can be read in full here, did not apply to the case as a whole.

Rather, it applied to the city’s Feb. 26 motion to dismiss the first count of the original two-count lawsuit.

That first count of the lawsuit called on the court to stop the park sale on the grounds that the city violated a state law that prohibits municipalities from ​“taking” open space without first holding a dedicated public hearing on the matter, and then replacing what’s lost with new open space comparable in size and value.

Judge Young decided to dismiss this count of the lawsuit — not because he disagreed with the parks group’s assertions about the city’s potential violation of public hearing and comparable replacement requirements.

Rather, he dismissed that count because he agreed with the city that the Friends of Kensington Playground and Patricia Wallace, an Edgewood resident who is listed as an individual plaintiff in the suit, do not have adequate legal standing to sue the city under that state law.

What does that mean?

Young turned to a 2001 state Supreme Court decision called Lewis. v. Planning and Zoning Commission of the Town of Ridgefield to explain who exactly has standing to sue under section 7 – 131n of state law.

One way for an individual plaintiff to prove they have standing in a legal case is by establishing what is called ​“classical aggrievement.”

That, in turn, requires an individual to prove two things: ​“First, a party must demonstrate a specific, personal and legal interest in the subject matter of the decision, as opposed to a general interest that all members of the community share. Second, the party must also show that the [defendant’s] decision has specially and injuriously affected that specific personal or legal interest.”

Wallace has not alleged any specific, personal and legal interest in the Kensington Playground dispute, Young writes. Therefore, she has not established ​“classical aggrievement.”

Another way that Wallace could establish standing is by showing that she is a taxpayer who would suffer through higher taxes because of the city’s actions.

The lawsuit, however, states that the nearby property assessments would decrease — and therefore taxes would go down — if the park space is lost to a new development, Young writes. Therefore, no standing through being a taxpayer.

As for the Friends of Kensington Playground group, Young continued, they would have to pass a three-pronged test in order to prove they have standing to sue under this state law.

They must show that their individual members would otherwise have standing to sue in their own right, that the interests it seeks to protect are germane to the organization’s purpose, and that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

The group fails that first prong of the test, Young writes, because it has failed to show that its individual members do not have classical standing to sue in their own rights.

“While the plaintiffs describe in general terms the impact of removing the park ​‘to young children and families,’ and ​‘neighboring residents,’” Young writes, ​“they fail to assert any facts establishing classical aggrievement suffered by any individual member of the association. Consequently, Friends cannot satisfy the first prong of associational standing, depriving this court of subject matter jurisdiction.”

Finally, Young also dismissed the part of the first count in which the plaintiffs sought to establish standing under another state law, 22a-19s. That’s because that law protects historic structures and landmarks, Young writes, which Kensington Playground is not.

Now that the first count has been dismissed, the rest of this case will focus on the second count of the original lawsuit.

Under that count, Wallace and the Friends group sued the city under a state law called 22a-16, also known as the Connecticut Environmental Protection Action (CEPA).

The original lawsuit states that the city’s ​“illegal taking of the Park and failure to replace it with unfragmented comparable park land both in value and size” constitutes a violation of CEPA.

That law, in turn, allows individuals and groups to sue a branch of government ​“for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction”.