KNL-CV-15-6024488-S

) SUPERIOR COURT
)

CHARLES R. EVANS, JR.

JUDICIAL DISTRICT OF NEW LONDON

)

VS.

) AT NEW LONDON

CHELSEA GARDENS FOUNDATION, INC.

)
) AUGUST 31, 2015

OBJECTION TO MOTION TO ADD PARTY

Plaintiff hereby objects to Chelsea Gardens August 26, 2015 Motion to Add Party
on the grounds that this action seeks to enjoin violations of the Connecticut
Environmental Protection Act, Conn.Gen.Stat 22a-16, and the Inland Wetlands and
Watercourses Acts, Conn.Gen.Stat. 22a-44 for the wholesale deforestation of a portion
of a public park1 resulting in natural resources damages to adjacent wetlands under an
expired permit. Defendant, a lessee of the City of Norwich conducting the work in a City
park, erroneously claims that the City of Norwich is a necessary party. Because the City
has no interest or title which the judgment will affect as required for mandatory
intervention under Conn.Gen.Stat. 52-107, the motion should be denied.
The claims in this case seek injunctive relief to require Chelsea Gardens to stop
work that is impairing wetlands and to remediate harms caused. Under no circumstance
would a judgment in this action affect the validity of the lease between the parties or the
title to the land or the right to enforce the lease.

Mohegan Par k i n Nor wi c h, a por t i on of whi c h was l eas ed by t he Ci t y of

Nor wi c h t o Chel s ea Gar dens i n 1994, al l egedl y f or t he pur pos e of dev el opi ng
an ar bor et um and but t er f l y gar dens . No wor k had been done on t he pr oj ec t s i t e
unt i l about May 2015.

It is also important to note that the City has not made an application to be made a
party, quite possibly because, upon information and belief, there exists an
indemnification provision in the lease.
STANDARD OF LAW
The conditions necessary to qualify for intervention as of right were set forth in
State Board of Education v. Waterbury, 21 Conn. App. 67, 72, 571 A.2d 148 (1990). 3
Intervention as of right requires that (1) the application be timely, (2) the applicant claim
an interest relating to the transaction that is the subject of the action, (3) the applicant
show that its ability to protect that interest may as a practical matter be impaired or
impeded by disposition of the action, (4) the applicant's interest is not adequately
represented by the existing parties. "Failure to meet any one of the conditions is
sufficient to deny intervention as of right." State Board of Education v. Waterbury, supra,
citing NAACP v. New York, 413 U.S. 345, 369, 93 S.Ct. 2591 2604, 37 L.Ed.2d 648
(1973). "[A] person or entity does not have a sufficient interest to qualify for the right to
intervene merely because an impending judgment will have some effect on him, her, or
it. The judgment to be rendered must affect the proposed intervenor's direct or personal
rights, not those of another." In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1 (1992).

DISCUSSION OF LAW AND FACT

Defendant, Chelsea Gardens, allegedly is conducting its site work activities under
permits from the City2. As with any private or public enforcement action, the entity which
issued the permits does not become a necessary party to the action. Neither does an

Def endant s c ouns el admi t t ed at t he s t at us c onf er enc e on Augus t 27 t h t hat t he

s i t e pl an per mi t had ex pi r ed.

entity leasing the site to the defendant become a necessary party simply because of its
status as an owner where title or possession is not an issue in the suit. In Tappin v.
Homecoming Financial Network, Inc., 265 Conn. 741, 753, 830 A.2d 711 (2003), our
Supreme Court observed that the title to property and possession of that property are
separate questions. See, Housing Dev. Fund, Inc. v. Burke Real Estate Mgmt., LLC
____ Conn. App._____, AC36198 (Conn. App., February 6, 2015).
As the cause of action only seeks to limit the amount and kind of activities on the
site and does not seek to determine or impair the relationship of the lessor and lessee,
the lessor need not be made a party to the action as none of the violations are alleged
to have been caused by the City as lessor.
Wherefore, the motion to add party is likely only filed to occasion delay at the
expense of natural resource protection.
Respectfully Submitted,
Charles Evans, Jr.

By_________________________
Keith R. Ainsworth, Esq.
Evans, Feldman & Ainsworth, LLC #101240
261 Bradley Street
P.O. Box 1694
New Haven, CT 06507-1694
(203)772-4900 / (203)782-1356 fax
krainsworth@EFandA-law.com

CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing was deposited in the United States
mail, first-class, postage pre-paid this 31st day of August, 2015 and electronically filed
in the electronic filing system of the Superior Court in the above captioned matter and
served upon the parties electronically and/or by mail to those requesting such service
and addressed to:
David Hill & Associates, LLC, 180 Glastonbury Boulevard, Suite 202, Glastonbury, CT
06033 dhill@dhill-law.com
Block, Janey & Pascal, 138 Main Street, Norwich, CT 06360 rpascal@bjplawyers.com
Hasset & George, PC, 945 Hopmeadow Street, Simsbury, CT 06070
mcdonald@hgesq.com

________________________
Keith R. Ainsworth, Esq.

KNL-CV-15-6024488-S

) SUPERIOR COURT
)

CHARLES R. EVANS, JR.

JUDICIAL DISTRICT OF NEW LONDON

)

VS.

) AT NEW LONDON

CHELSEA GARDENS FOUNDATION, INC.

)
) AUGUST 28, 2015

OBJECTION TO MOTION FOR BOND

Pursuant to Conn. Gen. Stat. 52-472, Plaintiff hereby objects to Chelsea Gardens
August 26, 2015 Motion Re: Bond with Surety on the grounds that this action is a
private attorney generals action to secure equitable relief to protect the public trust in
natural resources under the Connecticut Environmental Protection Act and Inland
Wetlands and Watercourses Acts. As such, the matter is brought by a private individual
to vindicate public rights which constitutes good cause to exempt the temporary
injunction from a bonded action.
This matter arises out of the wholesale deforestation of a portion of a public park,
Mohegan Park in Norwich, by Chelsea Gardens Foundation, Inc., a private foundation
with close ties to political leadership in Norwich which insulates it from close scrutiny for
compliance with land use regulations. Chelsea Gardens has for the better part of two
decades promoted a speculative, underfunded and largely imaginary botanical gardens,
arboretum1 and butterfly sanctuary in Mohegan Park none of which has been built.

I r oni c al l y , t he pr omot er s of t hi s ar bor et um hav e def or es t ed ov er a doz en

ac r es of l and i nc l udi ng i mpai r ment of r el at i v el y r ar e nat i v e Amer i c an
Ches t nut s apl i ngs .

In May 15, 2015 the Defendant admits beginning work on Phase I of a permit which
expired before work began. (See Defendants Motion for Bond August 26 at p. 1).
Plaintiff has retained a licensed arborist and soil scientist who has submitted an affidavit
detailing violations of state regulation governing wetlands including ongoing harm to
wetlands resources due to non-compliant work.
Defendants counsel has admitted at a status conference on August 27 that the
project is one which will take between 10 and twenty years to complete. Thus, any delay
caused the project by a temporary injunction for several months pending a full hearing
on the merits can reasonably be described as de minimus.
In addition Chelsea Gardens has no ongoing operations on the site which is
requested to be subject to the injunction. Defendants counsel represented in open court
on July 20, 2015 that no work had been performed on site since May 20152.
Regardless, the Defendant has no buildings, structures, gardens, butterfly houses,
tours, or any income-producing operations at the site which could be disrupted and
cause the Defendant monetary or compensable loss.
Chelsea Gardens has submitted no offer of proof of the possible harm it might suffer
if it is prevented from destroying trees which have stood for a century and is prevented
from causing sedimentation of adjacent wetlands.
Plaintiff believes from the libelous tone adopted in Chelsea Gardens motion3 that its
intention is to use the request for a bond not to protect a legitimate prospect of

A r epr es ent at i on whi c h Pl ai nt i f f s bel i ev e was c ompl et el y f al s e bas ed on, at

i n May 2015 and t hat c ouns el unbel i ev eabl y opi ned i n c our t t hat t he r emov al
of t r ai l er l oads of f el l ed t r ees does not c ons t i t ut e wor k on t he s i t e.
3 Def endant s ugges t s , wi t hout any bas i s i n pr oof , t hat Pl ai nt i f f has
t r es pas s ed and v andal i z ed Chel s ea Gar den s l eas ehol d.

uncompensated financial loss, but instead to suppress and dissuade Charles Evans
from bringing this action by needlessly driving up his costs.
The motion likely having been brought in bad faith and definitely having been
brought without cause, the motion should be denied. Alternatively, Plaintiffs action
being in the interest of the public trust, it should be exempt from bond. At the very least,
any injunction which enters can be made contingent upon a bond if Chelsea Gardens
proves sufficient grounds for one to be required.

Respectfully Submitted,
Charles Evans, Jr.

By_________________________
Keith R. Ainsworth, Esq.
Evans, Feldman & Ainsworth, LLC #101240
261 Bradley Street
P.O. Box 1694
New Haven, CT 06507-1694
(203)772-4900 / (203)782-1356 fax
krainsworth@EFandA-law.com

CERTIFICATE OF SERVICE
This is to certify that a true copy of the foregoing was deposited in the United States
mail, first-class, postage pre-paid this 28th day of August, 2015 and electronically filed
in the electronic filing system of the Superior Court in the above captioned matter and
served upon the parties electronically and/or by mail to those requesting such service
and addressed to:
David Hill & Associates, LLC, 180 Glastonbury Boulevard, Suite 202, Glastonbury, CT
06033 dhill@dhill-law.com
Block, Janey & Pascal, 138 Main Street, Norwich, CT 06360 rpascal@bjplawyers.com
Hasset & George, PC, 945 Hopmeadow Street, Simsbury, CT 06070
mcdonald@hgesq.com

________________________
Keith R. Ainsworth, Esq.

APPLICATION FOR CASE

REFERRAL LAND USE
LITIGATION DOCKET
JDCV129New812

COURTUSEONLY

STATE OF CONNECTICUT
SUPERIOR COURT
CIVIL DIVISION
www.jud.ct.gov

*LANDUSE*

PresidingJudge,
LandUseLitigationDocket
95WashingtonStreet,
Hartford,CT06106

Instructions
1.Counselandselfrepresentedpartiesseekingtohaveacasereferredtothe
LandUseLitigationDocketmustsupplyalloftheinformationrequested
below.(Notsupplyingcompleteandaccurateinformationmayresultinthe
casenotbeingtransferred.)
2.Informationthatdoesnotfitonthisformshouldbeattachedonaseparate
sheet,numberedtocorrespondtothequestionsontheform.
3.AttorneysnotexcludedfromefilingmustefilethisformandselectLand
UseLitigationApplication"whennamingtheforminefiling.Attorneys
excludedfromefilingandselfrepresentedpartiesmustfiletheoriginalwith
theClerkinthejudicialdistrictinwhichthecaseispending.

LANDUSE

Note:AnyobjectiontothetransferofthiscasetotheLandUse
LitigationDocketmustbefiledwithin15calendardaysafterthe
filingofthisapplication.Attorneysnotexcludedfromefilingmust
select"ObjectiontoTransfertoLandUseLitigationDocket"when
namingtheobjectioninefiling.Attorneysexcludedfromefiling
andselfrepresentedpartiesmustfiletheobjectionwiththeClerk
inthejudicialdistrictinwhichthecaseispendingandmusttitleit
"ObjectiontoTransfertotheLandUseLitigationDocket.

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TheJudicialBranchoftheStateofConnecticutcomplieswiththeAmericanswithDisabilitiesAct(ADA).Ifyouneedareasonable
accommodationinaccordancewiththeADA,contactacourtclerkoranADAcontactpersonlistedatwww.jud.ct.gov/ADA.
Casename
Returndate

Docketnumber
Typeoflandusematter

Planning/Zoning(nonvariance)

AffordableHousingAppeals

EnvironmentalEnforcement

Inland/Wetlands

MiscellaneousLandUseLitigation

1.Status of Litigation:
a.AdministrativeAppeal:
BriefsFiled:
Yes
No
RecordFiled:
Yes
No
b.MiscellaneousLanduselitigation/environmentalenforcement:
Pleadings:
Open
Closed
DiscoveryComplete:
Yes
No
Yes
No
c.Trialdateassigned:
Ifyes,whenisthetrial?

EstimatedLengthoftrial:

2.ReasonswhythiscaseshouldbereferredtotheLandUseLitigationDocket:

3.DoesthetransfertotheLandUseLitigationDocketcreateanyhardshipsforthepartiesorattorneys?
Ifyes,explainthehardship.

Yes

4.DothepartiesorattorneysconsenttothetransfertotheLandUseLitigationDocket?

Yes

No

No

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