Wiltwyck School for Boys, Inc. v. Perry
| Decision Date | 12 April 1960 |
| Citation | 24 Misc.2d 281,199 N.Y.S.2d 909 |
| Parties | Matter of the Application of WILTWYCK SCHOOL FOR BOYS, INC., Petitioner, v. Lester A. PERRY, Building Inspector of the Town of Yorktown, State of New York, Respondent. |
| Court | New York Supreme Court |
Harry G. Liese, New York City (Thomas A. Liese, New York City, of counsel), for petitioner.
Harold Riegelman, Counsel to Town Attorney of Town of Yorktown, New York City (Harold Riegelman, Simon J. Hauser and Donald J. Rapson, New York City, of counsel), for respondent.
Petitioner, Wiltwyck School for Boys, Inc., incorporated under the Membership Corporations Law of the State of New York, § 1 et seq., seeks by this proceeding to annul the determination of respondent Building Inspector whereby a permit to sanction the erection of a school and residential treatment center on its Yorktown property was denied.
The application was denied on the grounds that the proposed use is not a permitted main use in the residential area under the Town Ordinance.
In respondent's determination he stated that the proposed use does not conform to or meet the requirements and the standards of school uses, and as to this portion of his determination an appeal was taken to the Zoning Board of Appeals of the town and the respondent's action was affirmed. Subsequently the determination of the Board of Appeals was reviewed by this Court and by decision dated January 7, 1960, the Board of Appeals was upheld.
and petitioner attacks both the action of the respondent Building Inspector and the underlying Ordinance on the grounds of unconstitutionality.
The legislation here considered (Ordinance of the Town of Yorktown) was adopted on September 30, 1959, and was based upon a comprehensive plan or scheme of development. The said Ordinance provides for certain specific uses as of right, and in Article IV, Section 423, Subdivision 7, the following uses are set forth as being in that category:
'Religious, charitable and eleemosynary institutions other than for the insane.'
By amendment adopted on January 6, 1959, charitable and eleemosynary institutions are defined as follows:
'A place, building or structure designed or used for any of the following purposes:
'Home for the Aged.
'Orphanage operated as an accessory use to a religious institution all of which are operated on a non-profit basis and supported and financed solely by charitable funds; an extension of welfare uses and research for the public health in existence in the town prior to the date this amendment becomes effective, and operated on a non-profit basis and supported and financed solely by public or charitable funds.
'Eleemosynary Institutions.
'Same as charitable institutions as defined herein.'
Petitioner is a private corporation established for the care of boys between the ages of eight and twelve years, which children are found to be neglected or delinquent, or in danger of so becoming. Admissions are by referral by the Department of Welfare of the City of New York, or by petition of parents or guardian of dependent children, and application of the Justices of the Children's Court of the City of New York, The current population of petitioner's institution now located at Esopus N. Y., is approximately one hundred children, divided almost equally between children placed through intercession of the Welfare Department and those placed through order of the Children's Court. It is urged by petitioner that accessibility and availability to New York City and the metropolitan area are of vital importance to the more efficient operation of petitioner's institution.
The testimony at the trial elicited from various professionals interested in the social welfare field shows that the admission policy of the institution is most important in determination not only the type of child eventually accepted for treatment, but bears directly upon the kind of institution that has been conducted or will be conducted by petitioner. A change of policy in this regard has taken place preceding this application. The evidence further indicates that petitioner has accepted young people for treatment who are 'seriously mentally disturbed'. Vigorous denial is made of the fact that children classified as 'psychotic' are at the present time admitted to the Institution, although it is conceded by petitioner that such situations arise. Certain of the exhibits introduced here show that a substantial percentage of the children accepted for treatment were characterized by referral agents or employees as 'psychotic' or having such tendencies. On this point the Court has had the benefit of analysis, testimony and opinions of competent people in the field and those opinions differ materially on the question of whether or not the candidates for admission are or may be 'psychotic', 'seriously mentally disturbed', 'mentally disturbed', or merely 'neglected or dependent'. The only reasonable deduction to be made from the testimony is that petitioner's Institution as it is now conducted, is not simply a haven for a child who suffers merely from a lack of the advantages ordinarily gained from a stable home. It cannot be fairly said that the Institution is essentially a penal institution and thus subject to the regulations and control of the Correction Department, but it is fair to say that the Institution is not a school in the normal and accepted sense of that term. The conclusion is irrevocable that petitioner's Institution is in fact more properly described as basically corrective in nature. It is established and maintained for the care, custody and treatment of children in the categories hereinbefore described, and the conduct of 'school classes', while probably required under our laws and certainly beneficial to the welfare of the children is, nevertheless, incidental to the basic purposes of the Institution.
The problem here is whether or not by the adoption of the Ordinance in question the municipality may control the type of institution which seeks to make its home in the community. This question must be answered in the affirmative if the legislation is not found to be violative of the Federal or State Constitutions. We do not here deal with a state or other municipal institution, but with a private institution which has in the past and continues to do an outstanding work. It is supported, in part, by public funds and in part its budget is made up of voluntary contributions.
The fact that petitioner is subject to visitation and regulation by State agencies is urged in support of the contention that it is in...
To continue reading
Request your trial