Opinion
No. CV 07 4006100
December 15, 2009
MEMORANDUM OF DECISION
The plaintiffs, John M. Pratt, Jr. And Susan A. Scherf, ask that the court enjoin the defendant, Board of Education, Regional School District No. 14, from continuing a reconfiguration of the grades at the two primary schools in the district. The parties filed a stipulation of facts, presented evidence, and filed post-trial briefs. On July 21, 2009 the court issued a memorandum of decision entering judgment in favor of the defendant Board, primarily relying upon the Supreme Court's decision in Atwood v. Regional School District No. 15, 169 Conn. 613 (1975). On August 4, 2009, in the case of Regional School District No. 12 v. Town of Bridgewater, 292 Conn. 784 (2009), the Supreme Court criticized its reasoning in Atwood and set forth new guidance to the Superior Court in evaluating whether the actions of a regional school district board of education constitute an amendment to the regional school plan, thereby requiring a referendum pursuant to the provisions of C.G.S. § 10-47c. Based upon the new guidance provided by the Region 12 case, the plaintiffs filed a timely motion to reargue the court's decision pursuant to Practice Book § 11-12. In light of the changes in the law resulting from the Region 12 case, on August 10, 2009 the court granted the plaintiff's motion for reargument. Reargument was held on October 2, 2009 and the parties filed simultaneous briefs on October 26, 2009. For the reasons given below, the court finds that it must reverse itself and enter judgment for the plaintiffs.
Standard for Reargument
"[T]he purpose of reargument is . . . to demonstrate to the court that there is some decision or some principle of law which would have a controlling effect, and which has been overlooked, or that there has been a misapprehension of facts." (Citations omitted; Internal quotation marks omitted.) Opoku v. Grant, 63 Conn.App. 686, 692 (2001). The situation here is not that a controlling decision or principle of law was overlooked, but that a controlling principle of law was modified. The Supreme Court modified the law after this case was argued and decided, but before the decision had become final. The court is confident that reargument under these facts is permitted by Rule 11-12 and the cases which have interpreted it.
Facts
The parties stipulated to 31 paragraphs of facts, only the most significant of which will be repeated here. In March 1968, the Towns of Bethlehem and Woodbury ("Towns") established a temporary regional study committee, pursuant to C.G.S. § 10-39, to study the advisability of establishing a regional school district, and to estimate the cost . . . and to make recommendations to their respective towns. In April 1968, the study committee issued a final report, containing findings and recommendations, which was submitted to the Towns and to the State Board of Education. The final report was mailed to postal box holders in both Towns, and was presented to the residents of the Towns at public hearings. On May 1, 1968, the State Board of Education approved the final report.
Separate referenda on whether to regionalize were held on May 20, 1968 in each town, pursuant to C.G.S. §§ 10-43(b), 10-45 and 9-369a. The proposed question for vote in the final report was:
"Shall the Town of ________ join with the following Towns _____________ in establishment of a regional school district with the schools located in the Towns of Bethlehem and Woodbury for the purpose of providing the necessary facilities and administering grades Kindergarten through 12 of the public schools?
YES ___ No___
A majority of the votes in Bethlehem and in Woodbury were in favor of regionalization. Thus, Region School District #14 was established on May 20, 1968. The defendant, Board of Education was established in 1969.
On May 20, 1968, the date of the referenda, the schools in the Towns were: Elementary education (Kindergarten through Grade 5) housed in elementary school buildings, one in Bethlehem and one in Woodbury; a single middle school (Grades 6 through 8) was housed in a building then occupied in Woodbury; and a single high school was housed in Woodbury.
At the conclusion of the 2006-2007 school year the schools in the Towns were: Elementary education (Kindergarten through Grade 5) housed in elementary-school buildings, one in Bethlehem and one in Woodbury; a single middle school (Grades 6 through 8) is housed in the Middle School in Woodbury; and a single high school is located in Woodbury.
At its October 16, 2006 meeting the defendant voted "to authorize the Superintendent to reconfigure the schools to make Bethlehem a K-2 school and Mitchell a 3-5 school." Implementation of reconfiguration as defined by the defendant served to make Bethlehem Elementary School into a K-2 school for all district students, and Mitchell Elementary School in Woodbury into a grade 3-5 school for all district students, commencing with the 2007-2008 school year. Therefore, Woodbury K-2 students entering school in 2007-2008 attended the school in Bethlehem; Bethlehem 3-5 students entering school in the 2007-2008 school year attended the school in Bethlehem. The defendant has never amended the Plan pursuant to C.G.S. § 10-47c.
The Plan is the Regional Plan, also known as the Final Report of the temporary regional school study committee.
The plaintiffs, John M. Pratt, Jr. and Susan A. Scherf, have been and are residents, voters and taxpayers of the Town of Bethlehem. Ms. Scherf had two children attending Bethlehem Elementary School during the 2006-2007 school, and has two children who were to attend elementary grades during the 2007-2008 school year. Mr. Pratt has one grandchild attending an elementary grade during the 2007-2008 school year.
The following additional facts are found based upon the testimony and documents received at the trial. The Final Report of the temporary regional school study committee, which was mailed to all postal box holders in the two towns in 1968 prior to vote on regionalization, includes the following relevant recommendations (hereinafter referred to as "recommendation one," "recommendation two," and "recommendation three."):
1. That the towns of Bethlehem and Woodbury join to form a regional school district to include grades kindergarten through twelve.
2. That grades kindergarten through twelve be divided into elementary schools (grades K through 5), a middle school (grades 6 through 8), and a high school (grades 9 through 12).
3. That grades K through 5 be housed in elementary school buildings in Bethlehem and Woodbury.
The Final Report also contains a section entitled "Educational Program as Forecast For 1969-70" which includes a subsection entitled "Primary Schools" which states:
"The Bethlehem elementary school and the Woodbury elementary school should be converted to primary schools for kindergarten through five. This would allow space in each school for a library, reading laboratory, art and music room. So adapted, the buildings would provide for a working capacity of 400 in Bethlehem and 575 in Woodbury."
The Final report also contains a section entitled "Enrollment Forecasts" which provides that in the 1969-70 school year, the first year of the regional district, there would be 550 K-5 students in Woodbury and 248 in Bethlehem.
The primary purpose of reconfiguration in 2006 was to ease a perceived overcrowding at Mitchell Elementary School. In the past, as a way of changing the distribution of students, the defendant had adjusted the boundary line that defined which elementary school students in the Region would attend the Bethlehem school and which students in the Region would attend the Woodbury school. Thus, the dividing line has not always followed the boundary line separating the two towns.
The reconfiguration of the district has resulted in significant changes in busing and class schedules. The total number of bus runs has increased and the schedules at the schools have been changed.
Discussion
The plaintiffs argue that the reconfiguration of the elementary school: 1) represents a non-incidental change in the defendant's Regional Plan within the meaning of C.G.S. § 10-47c; 2) is, therefore, an amendment to the Regional Plan; and 3) that before the defendant can effectuate such an amendment, it must follow the procedure required by C.G.S. § 10-47c which mandates a majority vote in each town. The defendant argues that: 1) the reconfiguration is not a change in the Regional Plan; 2) if it is a change, it is incidental; and 3) even if it is a non-incidental change, it is authorized by the defendant's statutory powers to designate the schools to be attended by the children within the district and does not require a referendum in each town.
In order to evaluate the arguments of the parties, the court must discuss the recent decision in Regional School District No. 12 v. Town of Bridgewater, 292 Conn. 784 (2000). In the Region 12 case, the final report of the region study committee contained a recommendation that "[e]lementary grades [kindergarten through fifth grade] [are] to remain in their present home town schools." Each of the three towns in the district had an elementary school housing grades K-5. The plaintiff, Regional School District Number 12, planned to build one regional elementary school to replace the three elementary "home town schools."
The trial court had found that a referendum would not be required to effectuate such a change because the language of Atwood indicated that § 10-47 applies only to changes such as the size of the regional board and number of representatives from each town, that directly affect the voting rights of each individual elector in the regional school district. Reversing itself, the Supreme Court stated in the Region 12 case: "We also see no basis for our suggestion in Atwood that § 10-47 applies only to changes, such as the size of the regional board and the number of representatives from each town, that "directly affect the voting rights of each individual elector" in the regional district." Id.
In Region 12 the court determined that C.G.S. § 10-47c requires that any non-incidental modification in the regional school plan constitutes an amendment necessitating referenda in each member town. Id., 796. "Whether a change is merely incidental under § 10-47c must be determined on a case-by-case basis. In making that determination, the court should consider whether the proposal is of a type that a reasonable person would expect to be included in an original plan and whether it is reasonably likely that the inclusion of the proposal in the original plan could have affected an elector's vote." Id., 798. The Supreme Court concluded that "the proposal to consolidate the three separate elementary schools into a single school, thereby eliminating elementary schools in two towns, is not a incidental change to the regional school plan and, therefore, constitutes an amendment to the plan under § 10-47c." Id. "The plan expressly provided in two separate places that the elementary grades would remain in their respective hometown schools. In contrast to the provision that the middle school grades would `be housed initially in the present Washington High School facility'; (emphasis added); the plan did not indicate in any way that keeping the district's elementary school in their respective hometowns was to be a temporary arrangement. In light of the middle school provision, a reasonable person would have believed that, if future consolidation of the elementary schools were a possibility, it would have been mentioned in the plan. In addition, it is reasonable to conclude that the plan provided for hometown elementary schools because it was important to the townspeople in the proposed district to keep their elementary school children in schools close to home and, therefore, they would have been less likely to approve a regional school plan that called for a consolidated elementary school." Id., 798-99.
The plaintiffs have several arguments, but they all boil down to the same thing: the plain meaning of the Regional Plan dictates that each town have a K-5 school, and that referenda must be held to change this configuration of grades. Recommendation two divides the grades into elementary schools, a middle school and a high school. An "elementary school" is defined as grades K through 5. Recommendation three provides that grades K through 5 are to be housed in the elementary school buildings in Bethlehem and Woodbury. The plaintiffs argue that no reasonable person could read these recommendations and conclude that they would permit the two K-5 schools to be replaced with a K-2 school in Bethlehem and a 3-5 school in Woodbury.
The defendant's argument can be summarized as follows: the reconfiguration is not a change in the plan; if it is a change, it is an incidental change; if it is a non-incidental change, it is still permitted without referenda based upon other statutory powers of the defendant to determine where children in the district will attend school. Each of these arguments will be discussed in order.
1. Is there a change in the plan?
The defendant argues that there is nothing in the recommendations which prohibits reconfiguration, and that the actions taken by the defendant do not require amendment of the plan. The defendant points to this court's own words in its initial decision: "First, it is not clear that the change even conflicts with the language of the Regional Plan. The Plan recommends: `That Grades K through 5 be housed in elementary school buildings in Bethlehem and Woodbury.' Strictly speaking, that is still true. Both schools remain elementary schools. Grades K through 5 are still housed in elementary school buildings in Bethlehem and Woodbury." The court cited a definition of "elementary school" from Webster's Third International Dictionary.
In opposition to this argument, the plaintiffs point out that there is no need for a dictionary definition of "elementary school" because the Plan provides one in recommendation two: "elementary schools (grades K through 5)." The defendant contends that a K-2 school is still an elementary school, as is a 3-5 school. The full argument made by the defendant is: "the organizational plan described in the second recommendation and on page 6 does nothing more than create three programs of education: primary/elementary (K-5), middle (6-8) and secondary (9-12). The buildings to which the students are assigned do not create the organization referred to in the second recommendation. The location where the students are housed is the subject of the third recommendation on page 1 discussed earlier. In other words, spreading the elementary school program among two buildings does not mean there is no longer an elementary school program (Grades K-5). Not a sliver of evidence supports the plaintiffs' contention that the elementary school program has been changed by the re-assignment of elementary children to buildings by grades."
The court overlooked this definition when writing the original memorandum of decision.
Although this argument presents a possible reading of recommendations two and three, it is not the most obvious, and it is not as convincing as the plaintiff's plain-meaning reading that an elementary school must include all of the K-5 grades. Recommendation two defines elementary schools as grades K through 5, and recommendation three requires that grades K through 5 be housed in elementary school buildings in Bethlehem and Woodbury. It is reasonable to conclude that voters at the adoption of the Plan believed that each town would have its own K-5 school building and that any changes to this configuration would require an amendment of the Plan.
2. Is the change incidental?
To determine whether the change in the Plan is merely incidental, the court must consider whether the proposal is of a type that a reasonable person would have expected to be included in the original Plan and whether it is reasonably likely that the inclusion of the proposal in the original Plan could have affected an elector's vote. Id., 798. Prior to the creation of the region, both towns maintained K-8 elementary schools. The Plan provides that grades 6-8 be located in Junior-Senior High School. The plaintiffs argue that the voters of both towns would have expected the Plan to provide that both elementary schools would continue to be used as K-8 schools, and that it could have affected an electors' vote if the Plan provided that this was a temporary situation which could be changed at any time by the defendant.
But, the defendant argues that the facts of this case are different from those in Region 12 in which the concept of "hometown" schools played a role. In Region 12, the Plan referred to the elementary schools as "hometown schools." The word "hometown" is not used in this in the Region 14 plan. The reason for this seems obvious: the crowding at the Woodbury school, coupled with the excess capacity at the Bethlehem school, made it inevitable that some Woodbury students would need to be shifted to the Bethlehem school. For those Woodbury students, Bethlehem would not be a "hometown" school. But, the plaintiffs do not argue that the two elementary schools must be "hometown" schools, only that each town have a K-5 school. Provided that each school remains a K-5 school, the defendant has the right to decide which students will go to each school so as to maximize the use of each facility. The defendant is not required to follow the boundary lines of the towns in making this decision.
The defendant argues that voters would not have been affected if the right to make the K-2, 3-5 reconfiguration had been included in the original Plan because voters only needed to look at the other sections of the Plan to see that the original K-5 configuration was intended to be temporary. In fact, the defendant argues that the Plan provisions were limited to the first year of the district. The defendant points out that the enrollment forecast on page five of the Plan shows that there will be more Woodbury K-5 students in the first four years of the district than the capacity of the Woodbury school. It also shows that the Bethlehem school has a larger capacity than the projected number of Bethlehem students. The defendant contends that this refutes the idea that these schools were intended to be "hometown" schools because it was always clear that all of the Woodbury students would not fit into the Woodbury school.
A reasonable interpretation of the Plan would have led voters to believe that some Woodbury K-5 students might need to be included in the Woodbury school if other provisions could not be made for them in the Woodbury school. But, it is not reasonably likely that voters would have concluded that the Plan provisions relating to configuration of the grades was limited to one year or that the defendant was thereafter free to change the provision for K-5 schools in both towns. Therefore, the change made by the defendant to provide for one K-2 school and one 3-5 school is not an incidental change.
3. Does the defendant have other statutory powers which permit the reconfiguration despite the non-incidental change in the Plan?
The defendant correctly points out that, by virtue of C.G.S. § 10-220, regional school boards have specific statutory powers to equalize the educational advantages of all students, to allocate resources among its schools, and to designate the schools which shall be attended by the various children within the school district. Beyond this point, the defendant's argument is not persuasive.
Although the Region 12 case would seem to eliminate any claim that the powers conferred by § 10-220 somehow trump the requirement of C.G.S. § 10-47c that changes to the plan be approved by referenda in all member towns, the defendant argues that the Region 12 Board of Education was not acting pursuant to § 10-220 in proposing the consolidation of all elementary school into a new regional elementary school because there was no assignment of children to any existing school building because the new school was not yet built. Thus, the defendant claims that the Region 12 case is not a precedent which the court should apply to this case. This is a strained, unconvincing interpretation of the § 10-220 power to "designate the schools which shall be attended by the various children within the school district." It seems to me certain that the Region 14 Board of Education was acting pursuant to this specific § 10-220 power when it proposed to reconfigure the elementary schools by assigning all elementary students to an, as yet, unbuilt regional school.
The court is unable to act upon the defendant's argument that this interpretation will tie the hands of the defendant and other regional boards, and prevent them from having the flexibility to respond to enrollment, budgetary or facility constraints. This may be a valid concern, but one which must be made to the voters in support of a referendum proposal to amend the Plan to give the defendant this kind of flexibility.
Relief
Applying the guidance supplied by the Region 12 decision, the court is left with no choice but to find that reconfiguration of the elementary schools can only be authorized if the Regional Plan is amended. Although the plaintiffs' complaint has eleven separate claims for relief, some of them are duplicative or moot. There are two claims for relief which the court will grant.
1. A declaratory judgment shall enter for the plaintiffs that the actions of the defendant in reconfiguring the two elementary schools in Bethlehem and Woodbury to a K-2 school in Bethlehem and 3-5 school in Woodbury constitute a non-incidental amendment to the regional plan which requires an amendment to the Plan pursuant to C.G.S. § 10-47c.
2. A permanent mandatory injunction shall enter for the plaintiffs ordering the defendant to restore the K-5 schools in Bethlehem and Woodbury. Because it is the middle of the school year, this matter shall be scheduled for a further hearing to receive evidence from the parties as to the timing of such restoration.