Attorney General’s Opinion

Attorney General, Richard Blumenthal

January 3, 1990

John T. Casteen, III
President, University of Connecticut
352 Mansfield Road
Storrs, CT 06268

Dear President Casteen:

You have requested our advice on a question concerning the use of real property in Granby which was received by the University of Connecticut (hereinafter: “the University”) in l976 as a gift from Laura and Tudor Holcomb. Specifically, you ask whether use of the property as recommended by a consultant would be consistent with the terms of the deed to the University from the grantors. For the reason set forth below, our advice is that the recommended use is not consistent with the restriction placed by the deed on the use of that portion of the property known as the “family farm.”

The property in question is about 335 acres. It consists of seven parcels which the deed groups into two categories: l) the Newton farm and 2) the family farm.

The Newton farm comprises approximately l47 acres. The deed places no restriction whatsoever on the use to which the University may put this portion of the property. Accordingly, your question is inapplicable to the parcels which constitute what the grantors refer to as the Newton farm.

The family farm comprises approximately l88 acres. The deed provides that the family farm “is to be used to further programs of the University of Connecticut College of Agriculture and Natural Resources including protection of wildlife, the improvement of farming operations, arboretum purposes, development of crops, research involving animals and birds, and the like.” The gift is for educational purposes and, therefore, is a charitable gift. Lockwood v. Killian, l72 Conn. 496, 500, 375 A.2d 998 (l977). It is also a gift for public purposes as the University is a public institution. Klein v. City of Bridgeport, l25 Conn. l29, l3l, 3 A.2d 675 (l939). As such, the University holds the family farm subject to Conn. Gen. Stat. e 47-2 which provides,

All estates granted for the maintenance of the ministry of the gospel, or of schools of learning, or for the relief of the poor, or for the preservation, care and maintenance of any cemetery, cemetery lot or monuments thereon, or for any other public and charitable use, shall forever remain to the uses to which they were granted, according to the true intent and meaning of the grantor, and to no other use whatever.

[underscoring added]

Moreover, the deed recites that the grantee is acting pursuant to Conn. Gen. Stat. e l0-328a, now codified in substantially similar form as Conn. Gen. Stat. e l0a-l50, which in l976 read as follows:

The boards of trustees of each of the constituent units of the state system of higher education are empowered to accept, on behalf of the state, any gifts of lands, money or other property donated to the institutions under their control. Said boards shall direct the application, distribution or disbursement of such lands, money or other donated property, or the income therefrom, for any purpose connected with said institutions under their respective control, consistent with the conditions, if any, upon which the gift was created, provided the state treasurer shall be advised of the receipt of any such gift of money and where practicable shall hold on behalf of the respective boards of trustees, any such gift of money or income therefrom.

[underscoring added]

Accompanying your request for advice was a copy of the consultant’s report. The consultant recommends that the University retain title to the property, that the property be leased on a long-term basis to a non-profit entity, that the tenant should conduct a “low-input integrated acquaculture/vegetable production farm” on the site, that land resources not used by the above programs be subleased for other programs and that the facilities, once developed and operating, should be made available to the University and other educational institutions to carry on research and educational programs. The consultant does not specify what the research and educational programs should be or, indeed, whether such programs are feasible.

This recommendation is not consistent with the deed. The grantors expressly provided that the family farm is to be used for programs of the University’s College of Agriculture and Natural Resources. The consultant’s recommended use would not be a University program; nor would it be an extension of a University program. Rather, it would be a program of the proposed tenant. Indeed, the only role for the University mentioned in the report is that it would retain title to the property and that the facilities would “be made available to the University.” This role is impermissibly short of what the deed requires. Of course, there is nothing prohibiting the formulation of a use which would conform with the deed restriction.

We think it is useful to note here that under the doctrine of approximation, the Superior Court is empowered to remove or modify a charitable use restriction if the restriction is no longer capable of being fulfilled. Second Ecclesiastical Society of Hartford v. Attorney General, l33 Conn. 89, 93-94, 48 A.2d 266 (l946). An exception to this authority is where the grantor provides in the gift instrument for an alternative disposition of the property upon the occurrence of a specified event. Here, the deed provides that “[s]hould the grantee no longer have use of the family farm for its purposes as aforesaid, the title shall thereupon vest in the Town of Granby.” This gift-over clause is controlling and precludes application of the doctrine of approximation. Hartford National Bank & Trust Co. v. Oak Bluffs First Baptist Church, ll6 Conn. 347, 35l, l64 A.884 (l933); Conn. Bank & Trust Co. v. Cyril and Julia C. Johnson Memorial Hospital, 30 Conn. Supp. l, 8, 294 A.2d 586 (l972).

Shortly after our receipt of your request for advice, we also received a request for advice from Agriculture Commissioner Kenneth B. Andersen regarding the same property. Therefore, a copy of this advice is being sent to Commissioner Andersen in response to his request.

Very truly yours,

CLARINE NARDI RIDDLE
ATTORNEY GENERAL

David E. Ormstedt
Assistant Attorney General

CNR/DEO/spr

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