Armstrong v. Zoning Bd. of Appeals of Town of Washington

• Decision Date: 15 April 1969
• Citation: 158 Conn. 158,257 A.2d 799
• Court: Connecticut Supreme Court
• Parties: Katherine L. ARMSTRONG v. ZONING BOARD OF APPEALS OF the TOWN OF WASHINGTON et al.

Page 799

257 A.2d 799

158 Conn. 158

Katherine L. ARMSTRONG v. ZONING BOARD OF APPEALS OF the TOWN OF WASHINGTON et al.

Supreme Court of Connecticut.

April 15, 1969.

John S. McGeeney, Stamford, with whom were James M. Barton, Stamford, and, on the brief, George F. Lowman and John F. Spindler, Stamford, for appellant (plaintiff).

George C. Hastings, Hartford, with whom was Michael P. Malley, Hartford, for appellee (named defendant).

Walter M. Pickett, Jr., Waterbury, for appellee (defendant Devereux Foundation).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

HOUSE, Associate Justice.

The Devereux Foundation was granted a charter by the commonwealth of Pennsylvania in 1938. It was formed 'for the purpose of studying, treating, engaging in and carrying on research and educational work in connection with functional and nervous disorders and for the educating, developing and advancing of boys and girls of any age under required direction in addition to their intellectual and vocational needs along psychological and psychiatric lines, without profit, and in furtherance of these purposes and objects to secure contributions and maintain endowments for scholarships.' It operates the largest, private, nonprofit residential treatment center for emotionally disturbed and memtally retarded children in the United States and operates twenty-two residential treatment centers in Pennsylvania and branches in California and Texas, as well as therapeutic summer camps in those three states and in Maine for emotionally disturbed and mentally retarded children and for mentally retarded adults.

In 1965, Mrs. Annie Jean Van Sinderen, who owned a large estate in Washington, Connecticut, known as 'Glenholme,' conveyed to Devereux forty-one acres of this estate, including the main house, and at the same time agreed to leave the remainder of the estate to the Foundation by her will. By agreement and by express provision in the deed of convenance the property, to be known as the 'Glenholme Unit' of Devereux, was made subject to specific covenants and restrictions enforceable at any time not only by the donor during her life and thereafter by her surviving children but also by the town of Washington. ¹

'Glenholme' is situated in an area of Washington within a farming and residence district zone which, in addition to residential and farming uses, also permits property to be used for schools as well as such uses as nursing homes, private hospitals for convalescents or the chronically ill, homes for the aged, hotels, inns, boardinghouses, tearooms, public museums and libraries and community houses. Washington Zoning Regs. § 3 (1962).

Section 12 of the Washington zoning regulations contains the following provision: 'Enforcement: No building or structure shall be erected or used and no premises shall be used without first obtaining from the Zoning Commission or its duly authorized agent a permit or certificate stating that the proposed building or structure and proposed use are in conformity with these regulations. A copy of such permit or certificate shall be retained by the Commission for public inspection by anyone interested. These regulations shall be enforced by the Zoning Commission or its duly authorized agent in accordance with the Connecticut General Statutes.' Another section of the regulations provides that, in addition to other powers and duties, the board of appeals shall '(h)ear and decide appeals where it is alleged there is error in any order, requirement, or decision made by the Zoning Commission or any officer charged with the enforcement of these regulations.' § 10.

Upon receipt of the deed to 'Glenholme,' Devereux wrote to the Washington zoning commission, informed the commission that Mrs. Van Sinderen had transferred the property to the Foundation and, as owner of the property, applied 'for permission to occupy Glenholme, in accordance with the Zoning Regulations of the Town of Washington, for school and education purposes' and asked that a certificate be issued indicating that the proposed use would be in conformity with the zoning ordinance. The letter also informed the zoning commission that the application was being made on five enumerated bases, which it stated were commitments on the part of Devereux in its agreement with Mr. Van Sinderen, a copy of which agreement it enclosed with the application. ²

There is no provision in the Washington zoning regulations which requires the commission to hold a public hearing to consider an application for a permit or certificate of conformity. Nevertheless the zoning commission heard evidence and arguments on Devereux's application at its monthly meeting, which was open to the public. The application and the proceedings of the zoning commission on it were matters of great public interest in Washington, and it was common knowledge that the principal issue to be determined by the commission was whether Devereux's proposed use of its property constituted a school or a mental institution. At the request of the commission, Dr. Edward L. French, the president of Devereux, appeared and offered testimony in support of the application. Other interested parties also appeared and were represented by counsel. A stenographic record of the evidence was made. Counsel appeared for the plaintiff, who is the owner of the estate which adjoins 'Glenholme.' He was denied permission to cross-examine Dr. French with respect to portions of his testimony in support of the application, but the chairman of the commission did receive questions from those present, including the plaintiff's counsel, and, when the commission felt a question was proper, inquired of Dr. French.

Subsequent to this meeting, the commission requested further information from Devereux's counsel relative to the application. In response to this inquiry, Dr. French, by letter, informed the commission that the curriculum to be offered at 'Glenholme' would be comparable to one afforded in the public schools, that no child would remain for more than four years or beyond the age of eighteen years and that no child would be enrolled who has been legally committed by any court or who has been diagnosed a mentally ill person under the definition in General Statutes § 17-176. He also informed the commission that the unit would not be licensed by the Connecticut department of mental health under § 17-227 but would operate as a school approved by the department of education. Included in the lengthy record before the commission was information that the proposed staff for twenty-six pupils included one principal-teacher-administrator, four teachers, one remedial tutor and two recreation teachers. There was also filed with the commission an opinion from William J. Sanders, Connecticut commissioner of education, who wrote concerning the proposed institution: 'In my opinion it is an educational institution, a school, and one which we are most fortunate to have established in Connecticut. The educational program of the proposed school will, I am sure, serve as a model to the public schools in the state that must, under P.A. 206 (1965 G.A.) provide special education for the emotionally maladjusted.'

The zoning commission by unanimous vote approved the issuance of a certificate of conformity to Devereux, subject to eight specified conditions as to the kinds of activities in which Devereux could engage at 'Glenholme.' ³

The plaintiff and others appealed to the board of appeals from the decision of the zoning commission. Both before and during the public hearing on these appeals, the plaintiff requested that the board require the presence of Dr. French or some responsible official of Devereux for examination by parties opposed to the application. This request was denied by the board, and no official of Devereux appeared at the hearing. Subsequently the board of appeals unanimously voted to affirm the decision of the zoning commission in issuing the certificate of conformity to Devereux 'to use the premises known as Glenholme for a school in that Glenholme is located in a Farming and Residential district, and schools are permitted in such districts under Section 3 of the Washington Zoning Regulations.'

The plaintiff appealed to the Court of Common Pleas from the decision of the board of appeals. Her motion pursuant to § 52-178 of the General Statutes that the court order that Dr. French and the chief psychiatrist of Devereux appear and testify at the hearing on the appeal was denied. The court did, however, grant her motion for permission to take depositions from both doctors 'limited however only to the question of aggrievement.' Notwithstanding this limitation and proper objection and exception taken by Devereux, the court at the hearing on the appeal admitted both depositions as exhibits for all purposes, stating to Devereux's counsel: 'I think you are right Mr. Pickett but I am going to admit them anyhow, just so there can be no possible objection raised that I didn't hear in full what these men had to say.'

The appeal is from the judgment of the Court of Common Pleas, which dismissed the plaintiff's appeal. The court filed a lengthy 'limited' finding, and the plaintiff has assigned no error in the finding of facts. The court concluded, inter alia, that the test to be applied by the zoning board of appeals was whether or not Devereux was going to operate a school at 'Glenholme' and not how its various activities in other jurisdictions were operated or classified; that there was ample evidence in the record to support the board's decision that the proposed operation was a school; that the zoning commission in ruling on the Devereux application was acting in an administrative capacity as a building inspector and was not required to hold a public hearing or permit cross-examination- ; that a member of the commission and a member of the board of appeals who sat on the matter were not disqualified; that an honest...