‘It was a gut-wrenching sense of immediate loss’
Residents say cherry trees in town’s center were wrongly removed
FAIRFIELD — A Superior Court judge this week agreed to hear a request by Fairfield residents to block the removal of four trees outside of the Community Theater — but the trees had already been taken down.
Judge Barry Steven on Tuesday scheduled a remote conference between the lawyer for the residents and the town for later this month on the residents’ request for an injunction.
However the three Kwanzan cherry blossom trees and
an oak were removed Friday morning, said James Hughes, the attorney who filed on behalf of the residents and is a resident himself.
“It was a gut-wrenching sense of immediate loss because the iconic cherry blossom trees were gone forever,” Hughes said on Tuesday. “I was shaking and incensed at what had occurred without authority.”
He argued that an automatic stay was in effect since the complaint and appeal were filed and served to the town on April 1. Removing the trees violated the law, he said, and the residents now plan to seek sanctions, damages and fines, “since the town acted in contempt of court when took it upon itself to remove the trees without authority during the automatic stay.”
The town said the trees were removed legally under a state statute — which doesn’t include a right to appeal — that allows a tree warden to consider applications to remove trees in a right of way. The statute also puts the removal on the applicant, not the town itself.
On Tuesday, Town Attorney James Baldwin said they’ll be filing to dismiss the case.
“We are confident the court will grant our motion to dismiss the appeal because it has no merit,” he said.
The clerk for Judge Thomas Welch, who is presiding over the case, said Welch was unaware the trees were removed and the status conference will still go on as planned on April 27 until one of the parties points out that the case has changed.
“The Town has been working with the Kleban family, Fairfield’s tree warden and the Town Plan & Zoning Department over the past year discussing the redesign of the Community Theater Corner,” First Selectwoman Brenda Kupchick said.
She said removing the trees is part of the Kleban Company’s master plan to make landscaping improvements and factor in the new outdoor dining that was approved earlier this year.
“Those plans were first proposed in 2019 as part of a lease agreement between Kleban and the prior administration and approved at public hearings
held before the Board of Selectmen, Town Plan and Zoning Commission and Representative Town Meeting,” Baldwin said in a memo. “Earlier this year, an amended plan was approved by these same bodies which included site plans detailing replacement of the existing cherry trees.”
After a public hearing, the tree warden decided in favor of the application, saying three Kwanzan cherry trees and a northern red oak had to be planted along Post Road. He posted a revised decision nearly two weeks later on April 5, changing the statute the decision was made under but maintaining the approval and planting requirement.
“The permit was issued in full accordance with the law and the Kleban Company therefore had the right to remove the trees without further delay,” Kupchick said.
According to the lawsuit filed by Hughes and resident Alyssa Israel, on Feb. 25, they learned that the town’s tree warden had posted signs on the Kwanzan cherry blossom trees on town property in front of the Community Theater, which is owned by Sacred Heart University. The signs said that the trees were going to be removed under a proposed site landscaping plan.
During a public hearing in front of the theater on March 22, Hughes and
Israel said numerous people spoke in opposition to the removal of the trees. In addition, they state in their lawsuit that a state-licensed arborist examined the trees and found them in good health.
“But for the issuance of the injunction (the plaintiffs) will suffer irreparable harm, because once removed, their beauty and iconic position and legacy in the town will be lost forever and cannot be replaced,” the suit states.
The trees were originally posted for removal under a state statute that only applies to a tree warden’s decision to remove trees for safety concerns, but Baldwin said that was not the current situation.
“Upon my advice and counsel, I advised that he should amend his decision to reference the correct statute applicable to this situation,” which was the one about public right of way, Baldwin said.
“Under this statute, the tree warden is vested with the ultimate authority (to) deny or grant a permit without the right to appeal,” Baldwin said. “Taking into consideration all the public hearings, the tree warden decided in favor of the applicant and the permit was issued in full accordance with the law. Kleban therefore had the right to remove the trees without further delay.”
Hughes said that while the trees are near the theater, the town is responsible for them, not the Kleban Company.
“The town’s 6 a.m. morning action in removing the trees was done in a very sinister fashion,” he said. “The town must now answer to the court as to why they removed the trees while the appeal had been filed.”
Baldwin said Kleban, as the applicant, is responsible for the actual removal, the town just considers the request.
Kupchick said the plans for and around the theater will “spark vibrancy” downtown, including new sidewalks, green spaces, wrought iron accents and updated outdoor dining.
“Residents waited many years for someone to step up and renovate the Community Theater, the surrounding building and outdoor space and the town administration is grateful the Kleban family and Sacred Heart (University) took on this challenge,” Kupchick said.