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Act 46 Ruling
Judge rejects most remaining arguments

MONTPELIER — The latest ruling in a series of legal challenges involving several state-ordered school district mergers wasn’t a complete defeat for those who oppose them.

It was unless you live in Peacham, which ironically isn’t a named plaintiff in the lawsuit filed on behalf of 33 school districts, seven select boards, one planning commission and several residents earlier this year.

Judge Robert Mello this week dispensed with all but a sliver of the three remaining claims in the lawsuit when he concluded lawyers representing the lengthy list of plaintiffs failed to make a case that would persuade him to derail mergers ordered under Act 46.

Though a Supreme Court appeal has been promised, Mello paved the July 1 launch of those mergers by granting the state’s request for summary judgment on two of the three remaining claims and partially granting it in the third. The only unresolved issue involves Peacham and the state’s new system of determining eligibility for small school grants.

Mello concluded Peacham — the only otherwise eligible school district that was denied the grant this year — was uniquely positioned to make that argument at a hearing that has been scheduled for July 10.

With that exception, Mello ruled for the state on the remaining counts. The decision was issued more than two months after he dismissed three other constitutional claims raised in the case.

Mello has also dismissed a similar lawsuit that sought to block the state-ordered merger of the Stowe and Elmore-Morristown school districts.

In a 26-page decision that leaned heavily on his earlier rulings, Mello concluded school districts are creatures of the state and public education is the state’s responsibility. He indicated the Legislature exercised that responsibility when it passed Act 46 in 2015, and subsequently Act 49, and permissibly empowered the state Board of Education to compel school district mergers.

In a decision that squarely addressed whether the state could legally transfer debt from one school district to another, Mello rejected a series of arguments challenging the validity of the state Board of Education’s decision to order mergers in some cases.

“… The board’s final order is not arbitrary, capricious or contrary to applicable law,” he wrote.

On the debt question, Mello characterized the underlying premise of the plaintiffs’ argument as “flawed” and suggested it “mischaracterized the merger transaction” given that “… school district assets lawfully belong to the state” and debt was not being directly transferred from one community to another.

Mello indicated that was an important point, because it undercut arguments that, absent voter approval, the contemplated pooling of debt could not legally occur.

“… Legally … the mergers at issue involve the transfer of education-related assets and liabilities, which districts hold in trust for the state,” he wrote, adding: “After a merger, these assets and debts are not transferred from one municipality to another … but instead are transferred from one extinguished state trustee to a newly created state trustee.”

Using the Washington Central Supervisory Union as an example, Mello acknowledged that school districts in Calais and Worcester were bringing no debt to the soon-to-launch Washington Central Unified Union School District, while its three sister elementary school districts — Berlin, East Montpelier and Middlesex — all were. However, he indicated the evidence presented seemed to show tax rates in those towns would not fluctuate significantly and the effect on individual homeowners would, in many if not most cases, be influenced by the income sensitivity provisions of the state’s education funding law.

“… The undisputed record supports a conclusion that the tax effect of merger and attendant debt transfer, if any, upon particular communities or households is speculative, based on individual circumstance, and more directly impacted by tax laws other than Acts 46 and 49,” Mello wrote.

Though Mello indicated Peacham still has a case to make with respect to the Common Benefits Clause, the general claim that the state’s incentivizing mergers and creating a new system for determining eligibility for small schools grants in the future was not persuasive.

“… Consolidation of school districts and their resources represents a rational way to address issues such as dwindling student population and uneven statewide access to educational opportunities,” Mello wrote, adding: “Encouraging such consolidation through merger grants, even if imperfect, is nevertheless a rational way to achieve that goal.”


jebcas / Jeb Wallace-Brodeur / Staff Photo  

Drawing the Line

Matt Cohen, of Northfield, fly fishes in Berlin Pond Wednesday. Cohen caught and released a couple large mouth bass and a pike.

No sale! Council will keep historic Wheelock House

BARRE — City councilors have reversed course with respect to the Wheelock House, opting not to solicit proposals from those interested in possibly buying the iconic downtown building.

Nearly five months after voting to sell the vacant city-owned structure, a council that has since added two new members — John Steinman and Teddy Waszazak — effectively rescinded that decision.

Councilors Michael Boutin and Jeffrey Tuper-Giles never wanted to sell the historic Wheelock House and never delivered the request for proposal they were asked to develop earlier this year.

Enter Waszazak and Councilor Rich Morey, who were subsequently given that task before concluding the property should not be sold.

Morey delivered that recommendation to a generally receptive council Tuesday night.

Though Morey was among those who voted to sell the property, he said he changed his mind after touring it with Waszazak, Steinman and Jeff Bergeron, the city’s director of buildings and community services.

“We didn’t feel it was going to be an affordable viable option,” he said, suggesting it would be a waste of time to solicit proposals given restrictions the city would want placed on the property and the investment associated with its renovation.

According to Morey, the city retaining ownership of the Wheelock House would be the most prudent move and he said he could get behind a plan that was floated by Mayor Lucas Herring and subsequently ditched by the council in January.

That plan envisioned converting the rear portion of a building that once served as the decades-long home of the Barre Senior Center into a teen center and allowing the Barre Partnership to occupy the rest.

Morey said councilors had no interest in trying to find a market-rate tenant for the building — an idea floated by then-councilor Sue Higby in the run-up to the vote to sell the property. Higby, who lost her seat to Steinman in March, repeatedly questioned the viability and advisability of Herring’s teen center proposal and remains convinced the council is squandering a potential source of revenue.

Higby indicated as much in a recent email to council members, urging them to pursue an “open and competitive process to occupy the Wheelock House.”

In her email, Higby suggested that could involve finding a market-rate tenant as part of a pilot project like the one she suggested in January, or it could involve selling the property.

The current council isn’t interested in either option.

After meeting with Bergeron, Morey said he and others felt strongly the city should not rent the building — in part because it is ill-suited to be a property manager. They also agreed selling it would be a poor substitute for putting it to good use.

On Tuesday night, Morey described in detail his recommendation to co-locate the proposed teen center with a “welcoming center” and space occupied by the Barre Partnership.

Waszazak said he wasn’t prepared to endorse the teen center and while he was personally supportive of creating a downtown presence for the city’s downtown organization, even that aspect of the proposal was premature.

“This is a public building and if we are going to move forward with it there has to be public input,” he said.

Councilors agreed to solicit that input during a public forum that will be held at the Wheelock House on July 9 at 6 p.m.

The floor plan floated by Morey contemplated a storefront “welcoming center” for tourists that would be separated from the teen center by a conference room for the Barre Partnership, which would move its offices from the Office Block to the second-floor of the Wheelock House.

Waszazak said that aspect of the plan made sense to him.

“I want the Partnership in the Wheelock House,” he said. “I think it makes perfect sense.”

Herring said he remained supportive of a teen center at that location and, if the community and the council agree, locking down the location would be the first step to securing funding.

Though renovations needed to accommodate the Partnership could be completed both quickly and inexpensively, Herring said a teen center would take significantly more planning.


Mud lot solution proposed at MHS

MONTPELIER — The Montpelier-Roxbury Public Schools Board has come up with a plan to deal with the infamous “mud lot” at Montpelier High School.

Used as overflow parking space on the east side of the Smilie Auditorium, the unpaved lot is icy or muddy for several months of the year through winter and spring and has to be blocked off.

Earlier this month, the School Board was presented with a range of options and costs by Business Manager Grant Geisler and Facilities Director Andrew LaRosa.

Originally, the school district was told that VSECU, the credit union across the street from the school, was willing to pay the $350,000 it would cost to pave the lot to provide 40 parking spaces that would allow credit union employees to park there. But VSECU has since backed out of the deal, although it is still willing to continue to rent space to park up to 12 vehicles on school grounds for $200 a month, the board was told.

As a result, the board has been considering other options, such as “re-grassing” the lot and returning it to green space for recreation.

A decision was delayed while other needs were considered, including whether there needed to be a dedicated fire lane around the back of the school that might require a grid under the topsoil to avoid vehicles sinking into mud.

At a board meeting on Wednesday, LaRosa said that a dedicated fire lane with grid support under the soil was not necessary, after consulting with Montpelier fire department officials. He said he was told that the ground is already hard enough to support fire vehicles.

LaRosa also lowered the estimated cost to “seed or re-sod” the lot to between $30,000 and $40,000, an option that the board favored.

The board agreed that it needed to keep the option to occasionally use the lot for major cultural or sporting events, and graduation, but otherwise block access to it with temporary bollards or a gate.

In response to community members — some of whom voiced their frustration on Front Porch Forum — who park in the mud lot when they use the nearby recreation path, board members said there was alternative parking at the nearby Department of Labor parking lot.

LaRosa also presented a review of data on parking at the school that showed there are a total of 148 paved parking spaces, which drops to 115 after allocations for school vehicles, 12 spaces rented to VSECU and spaces allocated to snow storage in winter.

Superintendent Libby Bonesteel said there were 115 faculty and staff at the school, which accounted for all the available spaces in winter, and did not include spaces for students who drive to school. She said there were 30 students who registered for spaces, but the real number was not known. It highlighted the need to consider additional parking needs if faculty, staff and student numbers increase as enrollment increases as expected, she added.

There is some urgency to make and act on a final decision, the board heard. The VSECU contract to park on school grounds is up for renewal in the fall. There is also grant funding available from the Friends of the Winooski River to deal with stormwater issues on the mud lot to protect the nearby river. Those funds must be used by August or they will go to another project.

The board voted to re-green the lot but first wait to see whether VSECU was either willing to pave the lot or renew its contract before proceeding with the project.


jebcas / Jeb Wallace-Brodeur / Staff Photo  

Summer Beauty

Lady slippers bloom Tuesday in Groton State Forest in Peacham. Lady slippers are a wild orchid and are becoming increasingly rare. The showy plants are listed as imperiled or vulnerable in many states, including Vermont.


“A report released this week only confirms what we have already come to know: Finding a place to rent in Vermont is nearly impossible. Our state is symptomatic of a national problem, however.”

Editorial, A4

In the news

A ban on single-use plastic bags is rejoiced by business groups and advocates around the state. A2

A Granite City man has been sentenced on several charges, including attempted assault and robbery. A3

So much to talk about in Talk of the Town this week. A3

BTA Hotspot


Make Music Day 2019

Make Music Vermont brings music makers of all ages and experience out to the sidewalks, parks, porches and public places of the state on the first day of summer. For locations and information, visit