Hall v. Town of Weston

• Decision Date: 30 July 1974
• Citation: 167 Conn. 49,355 A.2d 79
• Court: Connecticut Supreme Court
• Parties: Douglas P. HALL, Conservator (ESTATE of Julie P. REVSON) v. TOWN OF WESTON.

Page 79

355 A.2d 79

167 Conn. 49

Douglas P. HALL, Conservator (ESTATE of Julie P. REVSON) v. TOWN OF WESTON.

Supreme Court of Connecticut.

July 30, 1974.

L. Paul Sullivan, Hartford, for appellant (plaintiff).

Robert M. Wechsler, Stamford, with whom was Bernard Glazer, Stamford, for appellee (defendant).

Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.

SHAPIRO, Associate Justice.

The plaintiff, conservator of the estate of Julie Phelps Revson, brought this action against the town of Weston seeking damages and an injunction in order to restrain it from proceeding with the acquisition of certain of the Revson land intended to be used by the defendant town for school purposes. From a judgment rendered denying the prayer for relief, the plaintiff has appealed to this court.

The plaintiff assigns error in the court's refusal to find sixty-six paragraphs of his draft finding which he claims are admitted or undisputed, in the finding by the court of twenty-three paragraphs in its finding which he claims are found without evidence or are of doubtful meaning, and in the failure by the court to reach the conclusions contained in the seventy-one paragraphs of the plaintiff's draft-finding. Since these claims of error have not been briefed or argued, they are treated as abandoned. Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 282 n., 348 A.2d 618; Mahon v. Heim, 165 Conn. 251, 252, 332 A.2d 69; Maltbie, Conn.App.Proc. § 327. The plaintiff's remaining claims of error relate to the court's determination regarding the burden of proof as to the necessity of the taking by the defendant of the Revson property and to various claims regarding the rendering of the judgment by the court.

The salient facts found by the court follow, and while seemingly lengthy in our recitation of them, we consider this to be necessary for a proper discussion of the issues involved in this appeal: The defendant filed a 'notice of taking' and a 'statement of compensation' pursuant to General Statutes §§ 48-6, ¹ 48-12 ² and 8-129 ³, which notice and statement are dated September 18, 1970, as the first steps in taking by eminent domain 10.5 acres of the Revson property. The defendant deposited with the clerk of the Superior Court the amount set forth in the 'statement of compensation.' Thereafter the plaintiff instituted this action. The 10.5 acres, part of 30.25 acres owned by Julie Phelps Revson, lie immediately north of the present middle school building, and condemnation of this land was sought for the dual purpose of providing playfields and subsurface septic facilities for an 800-pupil addition to that school. The acquisition of this land was recommended by the Weston board of education. This acreage is on the west side of the Revson property and comes within eighty feet of the westerly corner of the dwelling. Located on the 30.25 acres are a house with outbuildings, a swimming pool, a tennis court, a dressing room or a bath. The court together with counsel viewed the premises and surrounding area.

In 1965 the Weston board of education adopted a grade organization known as 4-4-4, whereby kindergarten through the fourth grade are housed and administered in one complex known as the elementary school; grades five through eight are housed and administered in the middle school; grades nine through twelve are housed and administered in the high school. This grade grouping was adopted after recommendation by the superintendent of schools, studies and review by the board of education, and was decided upon as being the best and most desirable organization of Weston's school system. The existing middle school building as well as the other school buildings are located on a ninety-acre tract of town-owned land which is immediately adjacent to the condemned Revson property. Also located on this ninety-acre tract are other buildings including the town hall, the fire house, the town library, the school garage, the town dog pound, and the town highway department with buildings for garaging and storing heavy-duty highway equipment as well as nearby land used for storing piles of sand and salt.

The elementary school complex has a capacity of 950 pupils. The high school has a capacity of 750 pupils and, as of Cotober 1, 1970, had 685 pupils. A third wing to the high school has been planned for 1974-1975. The existing middle school was built in 1960, has a capacity of 375-400 pupils, and, because of its limited space, houses only grades seven and eight, comprising 384 pupils. Grade six, comprising 191 pupils, is located in temporary classrooms some distance from the middle school, while grade five is located in the elementary school complex. Thus, the present enrollment in the elementary school complex is 1048, thereby causing an excess in its capacity limit of 950. After completion of the addition to the middle school, its capacity will be 1200 pupils and this will allow some room for expected growth. In 1968, the total pupil capacity for the three schools was 2000 and in that year there were 2079 pupils. Enrollment projections for the town were made in 1969 and such projections were reviewed by the state board of education and found to be reasonable. In the past, by actual experience, such enrollment projections have been proved accurate. Historically, the greatest growth in the Weston school system is in the middle and high schools. After reviewing various matters in connection with its projections, the state board of education was of the opinion that its projections were conservative.

The state board of education recommends twenty-seven usable acres for a middle school capacity of 1200 pupils. The addition to the school building will be on the town-owned land connected to the present school. The town explored many sites, including town-owned and other property, in an effort to find a location for the playfields required by the educational program for the expanded middle school. This review covered a period of two years. Physical education is an important part of the curriculum of the middle school as it is in all other schools. The playfields for girls in the middle school will be located on present town-owned property which is adequate. The boys' playfields will consist of two baseball fields of approximately three-and-one-half acres each for use in the spring, and superimposed thereon will be a soccer field and football field for use in the fall. There is no suitable land on the town-owned property for the boys' playfields needed for the middle school addition. The town owns approximately six acres of land lying to the west of the middle school and adjoining a service road, which tract is irregular in shape and very steep. To obtain one baseball field in that area would require construction of a 600-foot retaining wall which would be excessive in cost. If sloping were used instead of a retaining wall, a shoulder on ninety feet would be required to support the service road thereby leaving insufficient area for one baseball field. In addition, this area is presently the site of the subsurface septic leaching field for the existing middle school and the leaching field would have to be relocated and rebuilt. Four-and-one-half acres of this land are swampy with a peat bog and very wet. To construct a baseball field thereon would require drainage, clearing, excavation of the peat and refilling to a height above the water table for which the estimated cost was $200,000. Other areas in the town-owned complex are at too great a distance to be suitable for playfields for the middle school. The 10.5-acre Revson site is suitable for providing the area necessary for the boys' playfields for use with the expanded middle school.

Adequate subsurface facilities must also be provided for the 800-pupil addition to the middle school. The town explored many sites both on and off its own property in an effort to find a location for such subsurface septic facilities. The state department of health will approve subsurface septic facilities in this area for only an additional 600 pupils and this does not take into account a 100 percent reserve area requirement by this department, effective January 14, 1970, which now must be met by the town. Various areas near the middle and high schools can not comply with requirements of the state health code for subsurface septic facilities. The area where the temporary classrooms are located shows evidence of capacity for such facilities but its distance from the middle school renders its use too costly for this purpose. There is no suitable land on the town-owned property for the subsurface septic facilities required for the 800-pupil addition. After soil percolation tests of the Revson property, the state department of health approved that site for the subsurface septic facilities. These facilities will consist of two subsurface leaching fields and connecting facilities as well as a reserve area for each field which is necessary in case of a breakdown of the main system.

The town made an extensive and exhaustive reevaluation of its educational program and system and only after exploring all alternative sites, considering the requirements of its educational program, was action taken by vote to acquire the Revson land as a solution to the town's immediate educational needs. This review, over a period of two years, included grade groupings, sites off and on the town property and various building combinations, assistance by architects and engineers who designed the proposed middle school addition and who previously designed the high school, and a review of town-owned property and surrounding privately-owned properties. From this review the Revson site was determined to be the most suitable for both playfields and subsurface septic fields. Other private properties reviewed by the town were found unsuitable because they were too wet or swampy, contained springs or were too distant to...