Opinion
No. LLI-CV-07-4006134
March 3, 2008
MEMORANDUM OF DECISION
This is an action for declaratory judgment filed by the plaintiff, Regional School District No. 12 against the defendant, Town of Bridgewater. The defendant has filed a counterclaim for declaratory judgment. The parties filed a written stipulation of facts and engaged in oral argument on September 12, 2007. Subsequently, they filed extensive written briefs, the last of which was filed on November 13, 2007.
Facts
On or about April 28, 1967, the towns of Bridgewater, Roxbury and Washington ("the towns"), acting pursuant to then-existing Connecticut General Statutes providing for the creation of regional school districts, formed a Temporary Regional School Study Committee ("the Study Committee"). The Study Committee issued a Final Report dated May 1967 containing its findings and recommendation. The Final Report was submitted to the State Board of Education which approved it on May 11, 1967. On May 12, 1967 the State Board of Education submitted the written report of its approval of the recommendations in the Final Report to each town clerk in the Towns. The Final Report contains, among others, the following recommendation: "Elementary grades K-5 to remain in their present hometown schools." Next, the findings and recommendations contained in the Final Report were presented to the residents of the Towns in public hearings. Soon thereafter, referenda were held on August 11, 1967 in the Towns on the statutory question: "Shall the Town of _____________ join with the following towns ____________, ____________ in the establishment of a regional school district with the schools located in the towns of Bridgewater, Roxbury, and Washington, for the purposes of providing the necessary facilities and administering grades K to 12 of the public schools?" The majority votes in each of the Towns were affirmative. On August 16, 1967 the State Board of Education approved the establishment of Region 12. The Region 12 Board of Education ("Board") held its first meeting on September 13, 1967.
The Board believes that the buildings housing the three K-5 schools are in need of renovation or replacement. During the last several years, the Board has reviewed options for improving the K-5 school facilities and has conducted three separate referenda on renovation proposals with progressively smaller appropriation requests. Each time the question was defeated. In addition, the Board held a "preferential" referendum, in which the voters also indicated a preference for renovation over consolidation in a new, unified school.
The Board intends to schedule another referendum to appropriate funds to replace the K-5 schools with a new consolidated K-5 school. The referendum planned by the Board would be decided by a majority of the voters in the District as a whole, without regard to the outcome in the individual towns. The Town of Bridgewater has objected to this procedure. It is Bridgewater's position that the recommendations contained in the Final Report of the Study Committee in 1967 are a part of the District plan which is binding on the plaintiff until amended pursuant to C.G.S. § 10-47c. This would include the recommendation that grades K-5 be housed in the existing three hometown schools.
The defendant asserts that before the defendant can conduct a referendum to appropriate funds for the construction of a consolidated elementary school, the plaintiff must obtain the separate approval of a majority of the voters in each town by way of an amendment to the terms of the District plan. At a Town Meeting on May 8, 2007, the defendant passed a resolution requesting that the District plan be amended by deleting the term "Elementary grades K-5 to remain in their present hometown schools" and inserting in its place the term "The District consolidate Elementary grades K-5 into a single Elementary school, grades K-5, to be located in the Town of Roxbury."
The plaintiff has notified the defendant that the defendant's resolution does not represent a plan amendment that would require the Board to follow the procedure set forth in C.G.S. § 10-47c. On May 16, 2007 the Board approved a motion to appropriate $30,487,488 for construction of a consolidated elementary school in Roxbury, and to hold a referendum vote of the voters of the plaintiff on June 19, 2007. Thereafter, the Board notified the town clerks of the three towns to publish notice of the referendum. Subsequently, the defendant notified the Board that it would take legal action to challenge any referendum noticed by the Board pursuant to C.G.S. § 10-56 regarding consolidation unless the Board first conducted referenda in each town under C.G.S. § 10-47c. The Board withdrew its referendum planned for June 19, 2007.
Discussion
The plaintiff seeks: 1) a declaratory judgment determining whether a referendum on the proposal to appropriate funds for the construction of a new consolidated elementary school in Regional School District No. 12, and to authorize the appropriation of bonds and temporary notes to finance a portion of the appropriation, shall be conducted pursuant to C.G.S. § 10-56, with the question to be determined by the majority of those persons voting in the District as a whole; and 2) a declaratory judgment determining whether a referendum on the proposal to appropriate funds for the construction of a new consolidated elementary school in Regional School District No. 12, and to authorize the appropriation of bonds and temporary notes to finance a portion of the appropriation, shall be conducted pursuant to C.G.S. § 10-47c so that a majority vote against the question in any one town in the District can defeat the referendum.
The defendant's counterclaim seeks a declaratory judgment on ten items. In it's pretrial brief the defendant reduced these items to the following three: 1) The Resolution passed at the Bridgewater Town Meeting on May 8, 2007 is a "request" for an amendment of the terms of the 1967 education Plan which established three K-5 elementary schools to "remain" in the hometown schools; 2) The requested amendment is a substantive or fundamental change on these Plan items; and 3) The Plaintiff is bound by statute to process the request for an amendment of the Plan pursuant to C.G.S. § 10-47c.
The conflicting interpretations of §§ 10-47c and 10-56 raise a question of whether the Board may proceed tinder § 10-56 with the referendum as it had planned, in which the question of the appropriation of funds for a consolidated K-5 school in Roxbury would be decided by a majority of voters on a region-wide basis; or whether the Board is first required to proceed with referenda on the proposed plan amendment in accordance with the procedures of § 10-47c, which require, among other things, approval by a majority vote in each town.
"Practice Book § 1-54 provides that the court may award declaratory relief as the existence or nonexistence (1) of any right, power, privilege or immunity; or (2) of any fact, power, privilege or immunity does or may depend, whether such right, power, privilege or immunity now exists or will arise in the future. Practice Book § 17-55 permits a court to award such relief if the following conditions are met: (1) the party seeking the declaratory judgment has an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party's rights or other jural relations; (2) There is in dispute or substantial uncertainty of legal relations which requires settlement between the parties; and (3) In the event that there is another form of proceeding that can provide the party seeking the declaratory judgment immediate redress, the court is of the opinion that such party should be allowed to proceed with the claim for declaratory judgment despite the existence of such alternate procedure." (Internal quotation marks omitted.) ABB Automotive, Inc. v. Zaharnia, 77 Conn.App. 260, 266 (2003).
The facts of this case provide a sufficient basis for the granting of declaratory relief. The parties are at loggerheads over the proper statutory procedure to follow in order to move ahead with important public business of providing appropriate elementary education facilities in the District. There is an actual bona fide and substantial question or issue in dispute which requires settlement between the parties.
Resolution of the statutory conflict between § 10-47c and § 10-56 is informed by the Supreme Court's decision in Atwood v. Regional School District No. 15, 169 Conn. 613 (1975), the only appellate decision which is of assistance on this point. The defendant in that case, Regional School District No. 15, was created in 1968 by the towns of Middlebury and Southbury. Id. at 614-15. The temporary regional school study committee had prepared a Final Report which recommended that grades 9-12 be housed in the existing Southbury high school. Id. at 615. In 1973 the regional board of education submitted a report recommending the purchase, building and equipping a new high school complex in Southbury. Id. The regional board held a referendum on the appropriation of more than $11,000,000 and the issuance of bonds and notes for the purchase of land, construction of a new high school and alterations to the old high school. Middlebury approved the proposal by a plurality of 434 votes, and Southbury rejected it by a plurality of 283 votes. Id. The combined votes resulted in a plurality of 151 votes in favor of the proposal. Id. at 615-16. Regional School District No. 15 maintained that a majority vote in the regional school district as a whole was sufficient to approve the proposal pursuant to § 10-56. Id. at 616.
The plaintiffs, taxpayers from both towns, brought an action seeking a declaratory judgment to determine whether the referendum was effective without a plurality in each town approving an amendment to the "plan" pursuant to § 10-47c. Id. at 614. The Supreme Court summed up the competing arguments this way:
The basic conflict between the parties involves two statutes restricting the powers of the regional board. Section 10-56 permits the board to issue bonds to raise funds for the building of schools, but requires a referendum beforehand with a plurality of the district as a whole approving the issuance. Section 10-47c provides that, with certain exceptions, "the terms of the plan approved though referenda pursuant to section 10-45" maybe amended only after Referenda in each town in the district, with a plurality in each town approving the amendment.
The plaintiffs point out that the report of the study committee prior to the establishment of Regional School District No. 15 made no mention of the construction of a new high school, and, in fact, recommended that the existing Southbury high school serve as the regional high school. Therefore, plaintiffs contend, the proposal to construct a new high school constitutes an amendment to the plan approved by the referenda of December 18, 1968, and may be approved only by a plurality in each town. The school district, on the other hand, contends that the proposal to issue bonds for the construction of the new high school falls into the category of "bond issues," and need only be approved by a majority in the district as a whole, pursuant to § 10-56.
Id. at 613-15.
The parties in the present case make the same general arguments. In fact, the language of the second paragraph of the Supreme Court's formulation set forth above could be changed to restate the issue as follows (the original language is in brackets and the changes are in italics):
The [plaintiffs] defendant points out that the report of the study committee prior to the establishment of Regional School District No. [15] 12 made no mention of the construction of a new [high] unified elementary school, and, in fact, recommended that the existing [Southbury high school] elementary schools serve as the regional [high school] elementary schools. Therefore, [plaintiffs] defendant contends, the proposal to construct a new [high] unified elementary school constitutes an amendment to the plan approved by the referenda of [December 18, 1968] August 16, 1967, and may be approved only by a plurality in each town. The school district, on the other hand, contends that the proposal to issue bonds for the construction of the new elementary school falls into the category of "bond issues," and need only be approved by a majority in the district as a whole, pursuant to § 10-56.
In Atwood, the Supreme Court first determined that the "plan" referred to in § 10-47c consists of the recommendations found in the final report of the study committee. "The recommendations of the study committee for regional School District No. 15, including those concerning the use of then existent high school facilities, constitute `terms of the plan' for the district as that phrase is used in § 10-47c."
Id. at 621.
Next, the Supreme Court determined that § 10-47c does not provide the sole procedure for amendment of the terms of the plan, and that there are areas other than those specifically excluded which were also intended to be excepted from its provisions. Id. at 622. One of these is the specific provision in § 10-47c for the approval of bond issues. Id.
Finally, the court stated:
The removal from the coverage of § 10-47c of those "terms of the plan" relating to the facilities to be provided by the region and estimates of their cost, when combined with the four specific exceptions found in the statute itself, leaves some question as to what remains within its coverage. Clearly, those recommendations of the study committee which concern the size of the regional board, and the number of representatives from each town on the board, can only be altered in accordance with § 10-47c. That the extraordinary requirement of approval by a plurality in each town is a prerequisite to such fundamental changes is not surprising, since such changes directly affect the voting rights of each individual elector. Other matters of fundamental importance, such as the formation or dissolution of a regional district; §§ 10-45, 10-63a; the expansion of a district; § 10-47b(b); or the admission of a new town into the district, §§ 10-39, 10-45; similarly require a plurality approval by each town involved. We conclude that § 10-47c applies only to fundamental amendments of the terms of the plan, and does not apply to the issuance of bonds for the construction of new facilities.
Id. at 623.
In Atwood the court recognized that there is "some question" as to what remains within the coverage of § 10-47c after the four specific exceptions are removed. The court mentions two items which remain: the recommendations of the study committee which concern the size of the regional board, and the number of representatives from each town on the board. Id. Perhaps there are more areas but the court does not identify them specifically. The only guidance offered as to the nature of these other areas is that they would "directly affect the voting rights of each individual elector." Id. We must conclude from this that the denial of the "extraordinary requirement of approval by a plurality in each town" of the proposal to build a new high school in Southbury is not one of those unspecified areas which "directly affect the voting rights of each individual elector." If this is so, I fail to see how the denial, here, of the plaintiff's request for a plan amendment could be considered one of those areas which would directly affect the voting rights of each individual elector. The plaintiff's proposed plan amendment is not like a proposal to change the size of the regional board or a proposal to change the number of representatives from each town on the board. These amendments could have the direct affect of diluting the voting power of individual electors. Here, the plaintiffs proposed plan amendment, like the proposal to issue bonds for a new high school, will have no direct affect on the voting rights of individual electors.
I see no meaningful distinction which can be drawn between the facts in Atwood and the facts in the case before me. In Atwood the proposal was to purchase land and build a new high school when the "plan" had recommended that the high school be housed in the old Southbury high school building. Here, the proposal is to purchase land to construct a new K-5 school when the "plan" had recommended that K-5 be housed in the old elementary schools in the three towns. In Atwood, the court holds that the issuance of bonds for a new high school is not a fundamental change from the plan recommendation that the old Southbury high school be retained.
The defendant is unable to argue convincingly that the issuance of bonds for a new consolidated elementary school is a fundamental change of the Region 12 plan while a new high school is not a fundamental change of the Region 15 plan. Both represent changes from the language approved in the plans of each district. The defendant argues that the relocation of the Region 15 high school from the old Southbury high school building was "substantively de minimis" while the relocation of the Region 12 elementary schools from the elementary school buildings in the three towns is not. I am unable to draw this conclusion. There is no evidence that the voters who created Region 15 considered the location of the high school to be any less significant than the voters of Region 12 considered the location of the elementary schools. Both districts voted on plans which included the recommendations. Atwood teaches that a change in the location of the Region 15 high school is not a fundamental change in the plan. I do not see any basis, other than pure speculation about the intentions of the voters, for concluding that a change in the location of the elementary schools in Region 12 is a fundamental change.
The defendant argues that Atwood is not controlling here because, unlike the present case, some bonds had already been approved, some notes had already been issued and some expenditures already made. This is true. But, the court does not mention these facts as reasons for its decision. I am not able to distinguish Atwood on the basis of these factual differences in the absence of some indication in the Atwood decision that these factors influenced the court's decision.
If the defendant's request for a vote on its plan amendment does not represent a fundamental amendment of the terms of the plan, § 10-47c does not apply to it. Id. at 623. For the reasons set forth above, I conclude that the plan amendment proposed by the defendant does not represent a fundamental amendment of the terms of the plan. Therefore, the Board was correct in determining that defendant's plan amendment would not require the Board to follow the procedure set for in § 10-47c.
For these reasons, the court enters the following declaratory judgment:
1. A referendum on the proposal to appropriate funds for the construction of a new consolidated elementary school in Regional School District No. 12, and to authorize the appropriation of bonds and temporary notes to finance a portion of the appropriation, may be conducted pursuant to C.G.S. § 10-56, with the question to be determined by the majority of those persons voting in the District as a whole . . .
2. The Resolution passed at the Bridgewater Town Meeting on May 8, 2007 requesting an amendment of the terms of the 1967 education Plan does not seek a fundamental change in the Plan.
3. The Plaintiff is not bound by statute to process the request for an amendment of the Plan pursuant to C.G.S. § 10-47c.