COMMONWEALTH OF MASSACHUSETTS

Transcription

1 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT C.A. NO. LOWELL SCHOOL COMMITTEE, Plaintiff v. CITY OF LOWELL, BY AND THROUGH ITS CITY MANAGER AND CITY COUNCIL, VERIFIED COMPLAINT Defendants INTRODUCTION By this action the plaintiff, the City of Lowell School Committee ( School Committee ) seeks declaratory and injunctive relief to reaffirm and enforce its statutory authority with respect to the construction of a new high school building in Lowell, Massachusetts ( City ). The structure of the City s government is a so-called Plan E form of government, which plan constitutes the City Charter, including the provisions of G.L. c. 43, 34. Section 34 mandates that the School Committee authorize the selection of a site and approval of plans for any new school building. Notwithstanding this clear grant of authority to the School Committee, the defendants, the Lowell City Council and City Manager, continue to pursue plans for the construction of a new high school building, working with the Massachusetts School Building Authority ( MSBA ), without the School Committee s statutorily required approval and over its formal objection. Therefore, in order to protect the public interest, and to avoid the unlawful expenditure of millions of taxpayer dollars on a project that has not been properly authorized by

2 the School Committee, as well as wasting administrative resources of the City and the MSBA, the School Committee seeks declaratory and injunctive relief to require that the defendants adhere to the statutory process for selecting the site and approving the plans for and construction of a critical new high school. PARTIES 1. The plaintiff, City of Lowell School Committee, with a principal address of 155 Merrimack Street, Lowell, Massachusetts is a public body authorized pursuant to state law, G.L. c. 43, 31, to set educational goals and policies for the Lowell Public Schools consistent with state law, regulations and standards established by the Board of Secondary and Elementary Education. 2. The defendant, City Manager Kevin Murphy, in his official capacity only, with a principal place of business at 375 Merrimack Street, Lowell, Massachusetts, is the chief administrative officer of the City pursuant to G.L. c. 43, The defendant, City Council, by and through its members, with a principal place of business at 375 Merrimack Street, Lowell, Massachusetts, is the City of Lowell s legislative body pursuant to G.L. c. 43, 95. JURISDICTION 4. The Superior Court is vested with jurisdiction to hear and adjudicate this matter pursuant to the provisions of G.L. c. 231A, 1 and 2 (declaratory judgment), G.L. c. 214, 1 (general equity jurisdiction) and G.L. c. 212, 4 (civil actions). 2

3 FACTS City of Lowell Governmental Organization 5. Prior to 1944, the City had a charter form of government established by Chapter 383 of the Acts of 1921 ( 1921 Charter ). A true and accurate copy of the 1921 Charter is attached hereto as Exhibit The 1921 Charter, Section 51, Part 5, provided in relevant part as follows: No site for a school building shall be acquired by the city unless its approval by the school committee is first obtained. No plans for the construction of or alterations in a school building shall be accepted, and no work shall be begun on such construction or alteration unless the approval of the school committee therefor is first obtained. Nothing herein contained shall require such approval for the making of ordinary repairs. See Exhibit 1, pp On January 1, 1944, the City adopted a Plan E form of government established in accordance with the provisions of G.L. c.43, ( Plan E ). 8. Acceptance of Plan E rendered the City, as a matter of law, subject to the provisions of G.L. c.43, 1-44G. 9. The City has a nine-member elected City Council. G.L. c. 43, 96. Members are elected for two-year terms of office. City Councilors then elect one member to serve as Mayor. G.L. c.43, 96. The Mayor serves as the ceremonial head of the City, presiding over City Council and School Committee meetings. G.L. c. 43, Pursuant to G.L. c. 43, 95, the City Council s authority in a Plan E form of government is as follows: The government of the city and the general management and control of all its affairs, shall, except as otherwise provided in this chapter, be vested in a city council, which shall exercise its powers in the manner hereinafter set forth, but subject to sections one to forty-five, inclusive, insofar as not inconsistent; except that the city manager shall have 3

4 the authority hereinafter specified and the general management and conduct of the public schools of the city and of the property pertaining thereto shall be vested in the school committee [emphasis added]. 11. The City also has a City Manager, who, pursuant to G.L. c. 43, 103, is appointed by the City Council and who serves as the chief administrative officer of the city and is responsible for the administration of all departments, commissions, boards and officers of the city. 12. The powers and duties of the City Manager are set forth in G.L. c. 43, 104 as follows: Except as otherwise specifically provided in this chapter, it shall be the duty of the city manager to act as chief conservator of the peace within the city; to supervise the administration of the affairs of the city; to see that within the city the laws of the commonwealth and the ordinances, resolutions and regulations of the city council are faithfully executed; and to make such recommendations to the city council concerning the affairs of the city as may to him seem desirable; to make reports to the city council from time to time upon the affairs of the city; and to keep the city council fully advised of the city's financial condition and its future needs 13. The Lowell Public School district is one of the largest public school districts in the Commonwealth Massachusetts. It enrolls more than 14,150 students in grades prekindergarten through twelfth. 14. There is only one public high school in the City of Lowell, and it is the second largest high school in the Commonwealth of Massachusetts. 15. In accordance with G.L. c. 43, 31, the Lowell School Committee consists of the Mayor, who serves as its chairman, and six elected members. 16. The City s School Committee oversees educational services to Lowell students in accordance with applicable law and Massachusetts Department of Elementary and Secondary Education ( DESE ) requirements. 17. The School Committee appoints a Superintendent who is charged with the daily management of the schools and the administration of School Committee s policies and goals. The 4

5 Superintendent is an ex-officio, non-voting member of the School Committee and the chief executive officer of the public school system. 18. Pursuant to G.L. c.43, 34, [n]o site for a school building shall be acquired by the city unless the approval of the site by the school committee is first obtained. No plans for the construction of or alterations in a school building shall be accepted, and no work shall be begun on the construction or alteration of a school building, unless... with the approval of the school committee and the city manager under Plan E. [emphasis added]. Lowell High School Project 19. The City of Lowell is currently planning for the construction of a new high school facility to serve its students (hereinafter High School ). 20. To build a facility sufficient to serve the City s needs, and to ease the associated financial burden on the City s taxpayers, the City applied for financial assistance from the MSBA, a state agency charged with partnering with Commonwealth communities to support the design and construction of educationally-appropriate, sustainable and cost-effective public school facilities. 21. The MSBA funding program provides reimbursement grants to communities for eligible school construction projects. 22. Pursuant to the MSBA s enabling legislation, G.L. c. 70B, 2, the term Eligible Applicant is defined as a city, town, regional school district or independent agricultural and technical school. 23. Regulations promulgated by the MSBA further define the term Eligible Applicant as the chief executive officer where prescribed by statute or charter of the city, town, regional school district or independent agricultural and technical school or, where the context 5

6 requires, the chief executive officer s agent or staff, or a local official as submitted by the city, town, regional school district or independent agricultural and technical school and approved by the Authority. 963 CMR To maximize the MSBA s limited public resources, a community seeking to participate in the MSBA grant program must first submit to the MBSBA a Statement of Interest ( SOI ). 25. On April 10, 2014, the City submitted an SOI for the High School. A true and accurate copy is attached hereto as Exhibit Following the MSBA s review of the SOI, the MSBA may invite a district into an initial review process referred to as the Eligibility Period or Module School districts that successfully complete the Eligibility Period form a project team during Module 2, including an owner s project manager, using MSBA specific procurement processes. 28. Districts that complete the preliminary requirements during the Eligibility Period and form a project team may be invited to enter the Feasibility Study Phase or Module On November 18, 2015, the MSBA invited the City of Lowell to conduct a Feasibility Study for the High School. A true and accurate copy of the MSBA s Invitation to Feasibility Study Correspondence is attached hereto as Exhibit On November 19, 2015, the MSBA and the City, through its City Manager, executed a Feasibility Study Agreement for the High School. A true and accurate copy of the Feasibility Study Agreement is attached hereto as Exhibit The High School Project is currently in the MSBA s Module 3, Feasibility Study phase. 6

7 32. During the winter and spring of 2017, the City reviewed numerous plans for the construction of the High School. A true and accurate copy of the site options submitted by the City Manager to the City Council and Mayor on February 2, 2017 is attached hereto as Exhibit Two sites were identified for final consideration by the City Council the so-called Cawley Site near the Tewksbury town line, and the so-called Downtown Site centrally located within the City. 34. Portions of the Cawley Site are protected by Article 97 of the Massachusetts Constitution, and cannot be used for other purposes unless initially approved by a 2/3 vote of the City Council and then the General Court. 35. The project proposed for the Cawley Site also requires additional land not currently owned by the City, which additional land may need to be taken by eminent domain. 36. Following review of the site options, on June 20, 2017, the City Council voted to select the Cawley Site as the location for the High School by a vote of five in favor and four against. A true and accurate copy of the June 20, 2017 City Council meeting minutes are attached hereto as Exhibit On June 28, 2017, at a specially convened meeting, the School Committee considered the Cawley Site for the new high school, and, by a vote of one in favor of that site, and five opposed (with one abstention), decisively rejected that site. A true and accurate copy of the June 28, 2017 School Committee meeting minutes is attached hereto as Exhibit On June 29, 2017, notwithstanding the vote taken the School Committee the night before rejecting the Cawley Site, the City submitted its Preferred Schematic Report, notifying the MSBA of the City Council s selection of the Cawley Site. 7

8 39. On July 10, 2017, the School Committee advised the MSBA of its June 28, 2017 vote in opposition to the Cawley site. A true and accurate copy of the July 10, 2017 correspondence to the MSBA regarding the Lowell School Committee is attached hereto as Exhibit On August 23, 2017, the MSBA met to review the City s submission for Preferred Schematic Design for the High School, including its location and project scope. At that meeting, in consideration of the differing positions of the City Council and School Committee with respect to the High School site selection, the MSBA tabled consideration of whether the project should enter the next phase of planning, the Schematic Design Phase or Module During the meeting, the MSBA Board of Directors Chairman, and several members of the MSBA Board of Directors expressed their support for the project, but emphasized that the MSBA had no jurisdiction over the local approval process established by the Charter for the site selection. 42. To successfully complete the Schematic Design Phase the MSBA and the City must enter into a Project Scope and Budget Agreement ( PSBA ) establishing the project scope, budget schedule and MSBA financial participation at a specific site. 43. Further, in order for the MSBA to enter into the PSBA, the City must within 120 days of the MSBA Board s vote secure local authorization and funding for approved location. 44. On July 25, 2017, the City obtained an opinion from Bond Counsel, citing to G.L. c. 43, 34. Bond Counsel indicated that prior to counsel s authorization of the issuance of any bonds or notes to finance the new High School, the School Committee would need to approve the plans for the new High School. 8

9 45. Although the City has submitted an application for approval of a Preliminary Schematic Design, the site and the plans for the proposed High School building have not been approved by the School Committee, and, in fact, pursuant to the School Committee s June 28, 2017, vote, the School Committee has already voted to reject the site. 46. Therefore, the required approval of the School Committee pursuant to G.L. c. 43, 34, has not been obtained, and at this juncture no further action may be taken by the City, including before the MSBA with respect to the High School project. COUNT I DECLARATORY RELIEF AGAINST THE DEFENDANTS PURSUANT TO G.L. C. 231A, The plaintiff repeats and incorporates paragraphs 1 through 46 of this Verified Complaint as if fully restated herein. 48. State law requires the School Committee to approve any site for a school building and construction plans for a school building. 49. The MSBA requires the City to certify that all required approvals have been obtained. 50. Although the City submitted an application to the MSBA for approval of a Preliminary Schematic Design, the School Committee has not voted to approve the Cawley Site for the construction of a proposed new High School. 51. In fact, although the School Committee strongly supports the construction of a new high school building, it voted on June 28, 2017 at a properly posted meeting, by a significant majority, to reject the site chosen by the City Council. 52. The City Council vote on the location of the High School and its submission to the MSBA in connection therewith was not approved by the School Committee. 9

10 53. As a matter of law, the land acquisition, siting and construction of the High School at the Cawley Site has not been approved. 54. Where the School Committee has not approved of the acquisition of the Cawley Site for school purposes or of the related land necessary for the project, and has not approved construction plans for such purposes, the City cannot satisfy the MSBA s requirements for local approval. 55. As such, the School Committee requests that the Court declare that the School Committee is required by law to approve acquisition of any land needed for school construction purposes, any proposed school site and school construction plans, and further that the City Manager and the City Council shall not submit or represent to the MSBA that a final site selection has been made for any school project until the School Committee, as required by G.L. c. 43, 34, has approved such project. COUNT II INJUNCTIVE RELIEF AGAINST THE DEFENDANTS PURSUANT TO G.L. c. 214, The facts asserted in paragraphs 1 through 55 of this Verified Complaint are hereby incorporated and reasserted as if fully restated herein. 57. The School Committee seeks injunctive relief against the Defendants to affirm and enforce its statutory authority with respect to the construction of a new high school. 58. Under the City s Plan E form of government, the City is subject to the provisions of G.L. c. 43, 34 mandating approval by the School Committee prior to acquisition of land for school purposes, selection of a site or acceptance of plans for construction of a school building. 10

11 59. The School Committee has not approved the use of the Cawley Site for the High School construction project or the taking by eminent domain of land required for such project, and the MSBA has tabled further schematic design review of the project until the matter can be resolved at the local level. 60. The public interest strongly favors the issuance of injunctive relief to prevent wasting of administrative resources by the City and the MSBA, and of the expenditure of significant state and City funds for an unauthorized school construction project. 61. Therefore, the School Committee seeks injunctive relief to enjoin the City from submitting or representing to the MSBA that a final site selection has been made for the High School project until the School Committee, as required by G.L. c. 43, 34, has approved such project, including the use of the Cawley Site for school purposes and taking such additional land as may be necessary, and further, from authorizing the expenditure of any additional funds on the High School construction building project and enjoining its agents and contractors from taking any further action on the project until such time as the site and plans are approved by the School Committee in accordance with G.L. c. 43, 34; provided, however, that no injunction shall prohibit the City from paying for work conducted prior to the entry of said Preliminary Injunction. PRAYERS FOR RELIEF WHEREFORE, the City of Lowell School Committee respectfully requests that this Honorable Court: A. Issue a Short Order of Notice for a hearing on the issuance of a Preliminary Injunction; 11

12 B. Pursuant to Mass.R.Civ.P. 65(b)(2), issue an order that the action on the merits is to be advanced and consolidated with the hearing on the School Committee s Motion for Preliminary Injunction; C. After a hearing, enter a Preliminary Injunction enjoining the defendants, the City Council and the City Manager, from (1) submitting or representing to the MSBA that a final site selection has been made for the High School project until the School Committee, as required by G.L. c. 43, 34, has approved such project, and (2) authorizing the expenditure of any additional funds on the High School construction building project and enjoining their agents and contractors from taking any further action on the project until such time as the site and plans are approved by the School Committee in accordance with G.L. c. 43, 34; provided, however, that no injunction shall prohibit the City from paying for work conducted prior to the entry of said Preliminary Injunction; D. Enter a declaratory judgment that G.L. c. 43, 34 applies to the selection of a site, acquisition of any additional necessary land, and the approval of the plans for a new high school building in the City of Lowell and that no such site or plans shall be submitted to the MSBA unless first approved by the School Committee in accordance with said statute. E. Enter a Permanent Injunction enjoining the City from taking any further actions and from expending any further funds on the High School building project until such time as the site and plans for the school building are approved by the School Committee in accordance with G.L. c. 43,

13 F. Award to the City Council such additional relief as the Court deems appropriate. PLAINTIFF, CITY OF LOWELL SCHOOL COMMITTEE By its attorneys, Lauren F. Goldberg (BBO# ) Gregg J. Corbo (BBO# ) Janelle M. Austin (BBO# ) KP Law, P.C. 101 Arch Street, 12th Floor Boston, MA (617) Date: /16002/