The Middletown Press (Middletown, CT)
Lawsuit over bird sanctuary at Deer Lake will go forward
KILLINGWORTH — Regardless of who ends up buying Deer Lake, a recent lawsuit against the Boy Scouts will go on and could be an albatross to the property's new owner.
And that's even if the conservationistbacked Pathfinders buy Deer Lake. The local Scout group submitted a “compet
itive” bid for the property over the weekend, in hopes of preventing it from being sold to developer Margaret Streicker, who sits on the board of the Connecticut Yankee Council.
A lawsuit filed last week in Middlesex Superior Court by Madison resident David Stephenson, who wants to protect The Richard English Bird Sanctuary there, will go on as planned, according his attorney, Keith Ainsworth.
“This suit first of all is not related to Pathfinders,” Ainsworth said. “My client doesn't know those folks, they don't know him. There's no coordination between the two.”
The Connecticut Yankee Council declined to comment.
The lawsuit argues that the sale of Deer Lake to a developer would threaten the natural resources of the 255-acre property and that would violate a charitable trust.
Ainsworth noted that since 1985, Richard English made substantial contributions to the sanctuary and his estate bequeathed $100,000 annually to the Connecticut Yankee Council since 2011.
John Himmelman, a naturalist and children's book author and illustrator who knew English, said the late birder would be troubled by the prospect of selling Deer Lake to a developer.
“I spent many years birding with Dick English and his legacy should be preserved,” Himmelman said in a Facebook post. “His passion was birds and his ongoing generous contributions for future generations should not have been for nothing.”
“It would just be heartbreaking if this wasn't protected. This was his passion,” Himmelman said.
In the lawsuit, Ainsworth said his client is not seeking financial remedies. He called the suit “a charitable act” that his client filed
“to protect the bird sanctuary, the public trust and the charitable trust.”
Birds spotted at Deer Lake include eagles, osprey, heron, cormorants, ducks and owls, according to information from a kiosk at the sanctuary.
Even if the Pathfinders become the new owners, Ainsworth said, “If they were to acquire it with no restriction, we would be in the exact same position we are now — where Pathfinders could sell it to someone else in the open market for development. …We're trying to get it stopped from being sold for development.
“Unless they [the new owners] agree voluntarily to place that restriction on — we will seek an order to do so,” Ainsworth said. “That's the purpose of the suit no matter who acquires it.”
With the suit, Ainsworth client hopes they can get protection for the bird sanctuary in writing as part of the deed.
Bird sanctuary well known
“We believe that a charitable trust was created and does exist, but it is currently not codified within the deed and without that protection any owner can make the attempt to sell it without that restriction - unless somebody else asserts it,” Ainsworth said.
To avoid future lawsuits on the issue, Ainsworth said, “We want to make it very clear that's not going to be necessary because it is now written into the deed of the property.”
Ainsworth said that case law in the state is on their side.
“The rule is that if someone has dedicated something to a public purpose or charitable purpose and they publicize it or publish it as such it is accepted by the public as such,” he said.
“A public charitable trust has been created regardless if there is a written trust document created,” he said, especially if it is published in the press or with a sign declaring it a park.
“This is even more so because they are a charitable organization that enjoys the benefits of taxdeductible donations,” Ainsworth said. “There is an inherent bargain that you become a nonprofit you get the benefits of the taxdeductible donations, but you also have to in turn create a benefit for the public.”
Ainsworth described a previous lawsuit which was decided in favor of a public park, in which a parcel was dedicated as a park and was used as a park by the public for decades.
“Twenty, 30 years later someone tried to take it away and there was a lawsuit over it and the court said, ‘No, no you dedicated it to a public purpose as a park, people use it like a park and you published it that way and the public accepted it and therefore there is a public trust in that park.'”
“They fall squarely within the dedication rule — which is that they published it, they put up a sign,” he said about the Boy Scouts recognizing the sanctuary. “They ran it in their Scout magazine,” Ainsworth said,.
“There is a permanent standing wooden sign that is about 10 or 12 feet wide about 10 feet tall that has all sorts of bird identification and bird migration patterns,” according to Ainsworth. “And it says in block letters about a foot tall, ‘Richard English Bird Sanctuary.' So it's not like its ‘Hey, we just called it that.'”
Ainsworth's client declined to comment on the suit. “He didn't want the suit to be about him, it's about the bird sanctuary,” Ainsworth said.
Land still could be developed, perhaps
A developer still could develop the property “to a certain extent, perhaps” and grant a conservation easement, Ainsworth said.
“That would be something that would be negotiated. It has to result in the integrity of the bird sanctuary being maintained,” he said.
At Deer Lake, he said, “You have a very lightly developed parcel — the activity occurs mostly in the warmer months and its mostly camping.”
“As soon as you start getting to the point of the kinds of residential activities like lawn moving, leaf blowing and cars and people and playscapes and all sorts of less ecologically respectful activity …subdivision activities, just regular yard work is quite disruptive,” he said.
“It's pretty quick when you see impacts from that kind of development,” he added.
The lawsuit could stall any development of the property.
“It gives notice to all the world that there is a legal proceeding that may affect the title to the land and even if you are not a party to that.”