Sandown v. Timberlane, Doc. No. 218-2015-CV-706 (Rockingham Super. Ct., August 7, 2015) (Schulman, J.)




Rockingham, ss.






Before the court is a motion for a preliminary injunction filed by the plaintiffs, the towns of Sanborn and Danville, against the defendant Timberlane Regional School District ("Timberlane" or "the School District"). The towns seek to prevent the School District from using the Sandown Central Elementary School facility as an elementary school.

The court believes that neither town has standing to maintain this action, and that the court lacks subject matter jurisdiction and constitutional authority to hear this case. However, because the towns have not had a reasonable opportunity to brief this issue, the court INVITES SUPPLEMENTAL MEMORANDA from all parties on the issue of standing within thirty days of the clerk's notice of this order. If supplemental memoranda are not filed, the case will be dismissed for lack of standing by means of a final order.

Even assuming, dubitante, that one or both of the towns might have standing, the court finds that they would not be entitled to preliminary relief. Therefore, the motion for a preliminary injunction is DENIED.

[2] Overview

Timberlane is a cooperative school district comprised of four towns including Sanborn and Danville. See generally, RSA 195. Two of Timberlane's school facilities are located in Sanborn:

-Sandown Central Elementary School ("Sandown Central") was used through June, 2015 as the elementary school for Sandown students in grades four and five.

-Sandown North Elementary School ("Sandown North") was used through June, 2015 for Sandown students in grades K through 3,

Prior to Timberlane's 2015 annual meeting, there had been some debate in the district over whether Sandown really needed two elementary schools. Some individuals advocated combining all six grades at Sandown North in order to reduce cost redundancies. Others advocated preserving the status quo, even if it would be more costly.

At the annual meeting in March 2015, voters approved the District's general operating budget, as proposed by the district (known as Article 2), but rejected two special warrant articles concerning the elementary schools in Sandown, i.e.,

-Article 4, proposed by the School Board, which sought to appropriate $1,160,544 to Sandown Central for both capital and operating expenses; and

-Article 11, proposed by citizen petition, which sought to appropriate $602,528 for operating expenses for Sandown Central if article 4 failed to pass.

Pet. Ex. B at 2-3.

Because the voters rejected Articles 4 and 11, Timberlane began plans to consolidate Sandown Central with Sandown North. In July 2015, the School Board [3] approved a plan to (a) move Sandown fourth and fifth graders from Sandown Central to Sandown North, (b) move Sandown preschool and kindergarten student from Sandown North to Sandown Central and (c) use Sandown Central for special education programs for preschool and kindergarteners from several, if not all of the towns within the District. Id. Ex. F at 4.

Thus, if the District's plan is implemented, Sandown Central School would be repurposed from a school solely for Sandown's fourth and fifth graders to a school for Sandown's preschoolers and kindergarteners and the District's youngest special education students.

The towns of Sandown and Danville brought this action to stop this from becoming reality. They seek to have the Sandown Central School building mothballed, or at least used for some purpose other than elementary school instruction. They argue that by virtue of RSA 32:10,I(e) (the so-called "no means no" law), the voters' disapproval of Articles 4 and 11 bars the School Board from using any funds from its general operating budget to run elementary school programs in the building. Timberlane responds that the RSA 32:10,I(e) does not apply because the School Board is only using funds approved in the general operating budget and properly allocable to the elementary school operations in general.

Separately, the towns argue that Timberlane's superintendent, Dr. Earl Metzler, violated New Hampshire's right-to-know law by convening and operating a non-public advisory committee, whose mission was to study the consolidation of Sandown Central and Sandown North. The towns claim that their remedy for these non-public meetings [4] is judicial invalidation of the School Board vote adopting the Superintendent's committee's recommendation.

On July 24, 2015, the court held a hearing on the towns' request for a preliminary injunction.

Additional Facts

Timberlane is a so-called "SB 2 District," meaning that it has adopted the provisions of RSA 40:13 relative to its annual meeting. In SB2 districts, the annual meeting where the district budget is approved takes place over the course of two sessions that are held on different dates. The first session is a deliberative session during which the voters discuss and consider amendments to warrant articles proposed by the School Board and/or citizen petition. RSA 40:13, IV. At the second session the voters cast ballots to approve or disapprove the warrant articles to the extent they may have been amended. RSA 40:13, VI and VII. If the voters reject the proposed operating budget, and if a special meeting is not later convened, a default budget equal to the previous year's operating budget, with certain increases and decreases is deemed to be adopted. RSA 40:13, IX and X.

The line items for the proposed operating budget and other budgetary warrant articles are posted for the public on a form devised by the Department of Revenue Administration. See, RSA 32:5. In Timberlane's case, the DRA form is known as an "MS 27."

In January 2015, the Timberlane School Board held public meetings to discuss and determine the budgetary proposals that would be placed on the District's warrant for the upcoming annual meeting. Those proposals included warrant Articles 2 (the [5] Board's proposed operating budget), 4 (the Board's proposal for capital and operating funds for Sandown Central) and 11 (a citizen petition for operating funds for Sandown Central).

At a January 15 hearing, Dr. Metzler related that the District's counsel had opined that "if both articles [4 and 11] regarding the operating costs for Sandown Central fail to pass, then the School Board is not legally allowed to spend any funds to keep Sandown Central open in 2015-2016." Id. Ex. G at 2. The School Board nonetheless adopted and proposed the following wording for Article 4:

Sandown Central Elementary School Kitchen Renovation and Operational Costs: Shall the voters of the Timberlane Regional School District raise and appropriate up to $1,160,544, with $744,299 to be used for the operational costs of Sandown Central Elementary School and $416,245 to renovate the kitchen at Sandown Central Elementary School and to further authorized the District to withdraw the said $416,245 from the existing School Building Construction, Reconstruction, Capital Improvements and Land Purchase Capital Reserve Fund? (Only $744,299 shall be raised by taxation.)

Id. Ex. B at 2. This language was presented to the voters at the District's deliberative session.

Article 11 was added to the School District warrant by citizen petition and was presented to the voters at the deliberative session as follows:

Continue Operation of Sandown Central: Shall the voters of the Timberlane Regional School District raise and appropriate up to $602,528 for the continuing operation of Sandown Elementary School as an elementary school?

Id. Ex. B at 3.

During the course of the deliberative session, Timberlane's legal counsel was asked whether Sandown Central could remain open if Articles 4 and 11 were both [6] defeated. He answered, "by law it could not." Id. Ex. N at 11. Articles 2, 4 and 11 were then approved at the deliberative session without any amendments or alterations.1

The MS-27 form prepared by Timberlane's budget committee and posted for the voter's consideration set forth both (a) the appropriations proposed in the general operating budget and (b) those proposed in Articles 4 and 11. See, Supplemental Exs. Ex. K at 2. The proposed general operating budget shows an overall increase of $388,425 from the prior year's budget. See, Id. Ex. K at 3.

The line items on the MS-27 relating to the proposed operating budget (Article 2) are not broken down by school, grade or town. Nonetheless, neither party suggests that the proposed operating budget failed to include funds for faculty, staff, administration, supplies, non-capital equipment and non-capital expenses related to physical accommodations for the education of the Town of Sandown's K through 6 students. Indeed, the School District was required to appropriate such funds through either its operating budget or a default budget. See, RSA 189:1 ("It shall be the duty of the school board to provide at district expense elementary and secondary education to all pupils who reside in the district . . .").

Nonetheless, Article 4 and 11 also proposed operating funds for "Sandown Central Elementary School." The line items on the MS-27 for these two warrant articles included additional funds under the same headings as those listed for operating budget. The School District now argues that Articles 4 and 11 proposed extra operating funds for an elementary school in the Sandown Central building. The towns argue that [7] Articles 4 and 11 were the only articles that proposed any funds that could be used for elementary school operations within the building.

As noted above, the general operating budget was ultimately approved, while Articles 4 and 11 were rejected. Subsequent to the vote, Dr. Metzler formed a committee to make recommendations with respect to the consolidation of Sandown Central with Sandown North. Committee members included the district's assistant superintendent, local residents, teachers, directors of various departments in the district, a school board member, a budget committee member, and the principals of Sandown Central and Sandown North. See Pet. Ex. C at 3. The committee's purpose was limited to "offering recommendations to the Superintendent ...." Id. Ex. C at 6. Members of the public were not permitted to attend the committee's meetings.

The committee's report was completed on May 19, 2015 and submitted to the school board for consideration at a May 21 public hearing. The committee recommended using Sandown North for Sandown students in grades 1 through 5, while using Sandown Central for (a) Sandown students in preschool and kindergarten and (b) special education for preschool and kindergarten for some or all towns within the district. Id. Ex. F at 4. Consistent with these recommendations, the school board voted to consolidate the schools and move preschool, kindergarten, and special education classes to Sandown Central. Id.


I. Standing

A party's standing to sue is a question of subject matter jurisdiction, which may be addressed at any time. Eby v. State, 166 N.H. 321, 334 (2014); Libertarian Party of [8] New Hampshire v. Secretary of State, 158 N.H. 194, 195 (2008); Hughes v. N.H. Div. of Aeronautics, 152 N.H. 30, 35 (2005). Indeed, as the New Hampshire Supreme Court recently held in Duncan v. State, 166 N.H. 630, 643 (2014), a plaintiff's standing is a constitutional prerequisite to the exercise of judicial power under Part II, Article 74 of the State Constitution. In Duncan, the Supreme Court struck down an amendment to the declaratory judgment statute, RSA 491:22, that purported to grant standing to all taxpayers in a taxing district to challenge government actions. In doing so, the Court construed Part 2, Article 74 to include the same standing requirements as Article III of the Federal Constitution requires for federal judicial action. See also, Libertarian Party, 158 N.H. at 195-96 (noting "the constitutional principle that the judicial power ordinarily does not include the power to issue advisory opinions."); Asmussen v. Commissioner N.H. Dep't of Safety, 145 N.H. 578, 588 (2000) (same).

To have standing a plaintiff must "have personal legal or equitable rights that are capable of being redressed by the court." Duncan, 166 N.H. 643. Put another way, "[i]n evaluating whether a party has standing to sue, we focus on whether the party suffered a legal injury against which the law was designed to protect." Libertarian Party, 158 N.H. at 195-196, (quoting Asmussen, 145 N.H. at 587). This requirement that the plaintiff have skin in the game "tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Duncan, 166 N.H. at 643.

In this case the plaintiffs are the governments of two towns. They are not students or parents. Although they object to the use of School District dollars, the town [9] governments do not pay School District taxes. They do not claim that their town coffers have or will be harmed. They do not claim that any of their operations have or will be affected. Although the towns complain about the School District's policies, town governments are not charged with developing, overseeing or auditing such polices. Nor are town governments granted ombudsman-like authority to inspect, correct and litigate a school district's adherence to state budgetary statutes.

The towns have no responsibility for any operations at the Sandown Central Elementary School building and grounds. If somebody slips and falls on the school grounds, the town would not ordinarily be liable (absent, of course, some specific action on the town's part). If a teacher is wrongfully discharged, the town would have no responsibility either before the Human Rights Commission or the courts. If the roof caves in during a heavy snow storm, the town and its carrier would be spared the cost. Although the Town may have to expend resources in connection with motor vehicle traffic and other activities incidental to the operation of a school facility, these concerns would have been addressed, and fully resolved, as part of the school siting process long ago.

The government of the Town of Sandown claims that it has standing because if, in the future, the Sandown School District withdraws from Timberlane, the Sandown Central Elementary School building and grounds will be transferred to the Sandown School District (subject to payments for capital additions and improvements made by Timberlane). See, RSA 195:28. There are two flaws with this argument:

First, although the geographic boundaries of the Sandown School District are the same as those of the Town of Sandown, see RSA 194:1, the Town government does [10] not represent the School District. A school district is a separate and distinct municipal corporation, see, RSA 194:2, that is governed by a separately elected school board. See, RSA 671:4. When-as is likely the case here-there is no school board because the school district has joined a cooperative school district, there is a statutory procedure for the appointment of agents to represent the dormant school district's interests. RSA 195:16-C provides that:

If there shall arise any occasion which shall require the doing of any act or thing by or in behalf of a pre-existing district which has ceased to exist by reason of its inclusion in a cooperative school district, the superior court shall have the power, upon application of 3 registered voters domiciled in the territory of the pre-existing school district, to appoint an agent who, subject to the approval of the superior court, shall have the power on behalf of and in the name of the pre-existing school district to do any act or thing that may be just under the circumstances.

There is no statutory or other authority that permits a town government to stand in the shoes of a dormant school district as a sort of guardian or next friend. Thus, the government of the Town of Sandown has no claim in any capacity to a legal, equitable, possessory, remainder, reversionary or residual interest in the Sandown Central Elementary School building and grounds.

Second, the dormant Sandown School District's interest in the property is far too contingent and remote to confer standing on either the school district or its agents. It is true that Timberlane is presently conducting a feasibility study regarding Sandown's possible withdrawal from the cooperative school district. However, any actual withdrawal is years away and will require the approval of the District's voters. To the extent that the Sandown School District may have a remainder or residual interest in Timberlane's property within its boundaries, it might have standing to prevent waste or encumbrances. However, in this case Timberlane proposes to do nothing that would [11] either result in a wasteful diminution of the value of the property or a legal encumbrance of the property. The dormant Sandown School District cannot possibly be harmed by the presence of preschoolers and kindergarteners in a building that it might (or might not) "inherit" years down the road.

Finally, the towns argue that they have standing because they collect both the town and school district taxes. However, this is a purely ministerial function and the tax collector's job responsibilities will not change depending on what use is made of the Sandown Central Elementary School facilities.

For all of these reasons, the court believes that neither plaintiff has standing. However, the court is cognizant that the issue of standing has not been fully briefed by the parties. The question of the towns' standing was first broached by the court sua sponte during the hearing on the towns' motion for preliminary relief. See e.g., Duncan, 166 N.H. at 639-640 (holding that the court may raise the issue of standing sua sponte because it is a component of subject matter jurisdiction); Eby, 166 N.H. at 335 (2014) (same); Hughes, 152 N.H. at 35 (same). At the time, the court questioned the Town of Danville's standing but opined that the Town of Sandown had standing based on its claim of an equitable, remainder or reversionary interest in the Sandown Central Elementary School building and underlying real estate. Therefore, counsel for the towns may not have seen a reason to research and brief the question of whether at least one plaintiff has standing.

Fundamental fairness requires a meaningful opportunity to be heard on this jurisdictional and constitutional issue. Therefore, the court will forbear from making a formal ruling of law at this time. Instead, the court invites all parties to file supplemental [12] memoranda, if they wish, within thirty days. If supplemental memoranda are not filed, the court will dismiss the Complaint for lack of standing. If memoranda are filed, the court will give counsel's arguments thoughtful consideration before proceeding.

II. Preliminary Relief

Although the issue of standing may prove to be dispositive, the court also makes the following findings and rulings.

A. Preliminary Injunction Standard

A preliminary injunction is a provisional remedy that preserves the status quo pending a final determination of the case on the merits. New Hampshire Department of Environmental Services v. Mottolo, 155 N.H. 57, 63 (2007); Kukene v. Genualdo, 145 N.H. 1, 4 (2000). It is an "extraordinary remedy" and one that cannot be granted unless the movant establishes (a) a likelihood of success on the merits, (b) a risk of immediate and irreparable harm and (c) the lack of an adequate remedy at law. ATV Watch v. New Hampshire Department of Resources & Economic Development, 155 N.H. 434, 437 (2007); Murphy v. McQuade Realty, Inc., 122 N.H. 314, 316 (1982); Mottolo, 155 N.H. at 63; Kukene, 145 N.H. at 4. Additionally a court should refrain from issuing a preliminary injunction if either the balance of equities and hardships tilts in favor of the non-movant, Thurston Enterprises Inc. v. Baldi, 128 N.H. 760, 766 (1986), or the issuance of the injunction would be adverse to the public interest. Wiebusch, Civil Practice and Procedure, Fourth Edition § 19.11 (Matthew Bender 2014), citing Unifirst Corporation v. City of Nashua, 130 N.H. 11 (1987)).

[13] B. Likelihood Of Success

"The sine qua non of this...inquiry is likelihood of success on the merits: If the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity." New Comm Wireless Services Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). Thus, the towns must prove that they are likely to prevail on either (a) their claim under the "No Means No" law, RSA 32:10, I(e) or (b) their claim for invalidation under the Right To Know Law, RSA 91-A:8, III.

(i) "No Means No" Law

Introduction: Timberlane's budget process is governed by the municipal budget law set forth in RSA 32. See, RSA 195:12. Among other things, RSA 32 provides school boards with the discretion to appropriate unexpended funds for other purposes. See, RSA 32:10, I. There is one significant limitation on this discretion, which has been referred to as the "No Means No" law. RSA 32:10, I(e) provides,

The town or district meeting may vote separately on individual purposes of appropriation contained within any warrant article or budget, but such a separate vote shall not affect the governing body's legal authority to transfer appropriations, provided, however, that if the meeting deletes a purpose, or reduces the amount appropriated for that purpose to zero or does not approve an appropriation contained in a separate article, that purpose or article shall be deemed one for which no appropriation is made, and no amount shall be transferred to or expended for such purpose.

Id. (emphasis added). A "purpose" is "a goal or aim to be accomplished through the expenditure of public funds," and, as used in subsection (e), means "a line on the budget form posted with the warrant, or form submitted to the department of revenue administration, or an appropriation contained in a special warrant article ...." RSA 32:3, V.

[14] The "No Means No" law was apparently a response to Ashley v. Rye School District, 111 N.H. 54 (1971). In Ashley, the Supreme Court permitted a school board to use unexpended funds to rehire a teacher aide despite the voters' rejection of a program to hire four teacher aides at that year's annual meeting. Id. at 55. The court found this action appropriate based on the municipal budget law then-enacted; "When the school board paid the salary of the teacher aide ... it expended no money not authorized by the school district vote.... [T]here was, strictly speaking, no transfer of one appropriation to another, but merely a transfer within the same appropriation which the district voted for school purposes." Id. at 55-56. Today, RSA 32:10, I(e) could very well prevent such a transfer.

The Parties' Positions: The towns claim that the rejection of Articles 4 and 11 bars Timberlane from operating Sandown Central in any capacity. They allege as follows: (a) That Timberlane first deleted all line items related to Sandown Central's operation from the proposed general operating budget proposed in Article 2; and then (b) After "zeroing out" all such expenditures in Article 2, Timberlane proposed Article 4, which requested both capital and operating funds for Sandown Central; and separately (c) a citizen petition led to Article 11, which requested operating funds for Sandown Central. Thus, the towns allege that after Articles 2 and 11 failed, Sandown Central's operating budget was zero. Thus, in the towns' opinion, Timberlane's attempt to appropriate funds to operate classes at Sandown Central violates the "No Means No" law because Timberlane cannot transfer funds to "an appropriation contained in a special warrant article" which has been rejected by voters. See, RSA 32:3, V.

[15] Timberlane disagrees. Timberlane relies on the fact that Articles 2, 4 and 11 all proposed appropriating funds for the same line items. Therefore, Timberlane argues that the voters never "zeroed out" funding for the Sandown Central Elementary School. Thus, Timberlane claims that it can expend district funds for those line items, even though the total amount of available funds would have been greater had Articles 4 and 11 passed. However, Timberlane previously represented at two public hearings that passage of either Article 4 or 11 was necessary to keep Sandown Central open.

Was The Budget For Sandown Central "Zeroed Out"? The School District appears to have the better argument with respect to whether the voters "zeroed out" the Sandown Central Elementary School Budget. The MS-27 form, which shows all of the appropriations for the budget year, indicates that Timberlane's 2015-2016 budget totals $67,723,927, a slight increase from the previous budget. One would expect that if Tlmberlane had reduced all operating expenses for Sandown Central, from personnel to utilities, that reduction would be apparent in the budget. Instead, one can reasonably infer from the fact that appropriations stayed relatively level from the last year to the upcoming year that Sandown Central's operating costs have been accounted for in the 2015-2016 budget.

The only other documents provided by the towns to prove their assertion that the budget for Sandown Central was "zeroed out," are two highly edited excerpts from a draft 2015-2016 budget and the finalized budget. See, Pet. Ex. I. The first document contains excerpted portions of the draft budget, with the towns' commentary about the exhibit superimposed over the excerpts. Id. Ex. I at 1. The second page is a grainy copy of a few budget columns, purportedly from the final budget. Id. Ex. I at 2. The [16] towns have inserted bubbles and circles to direct the court's attention to certain line items. But because the towns have not provided the full documents, the court has little context from which it can understand the excerpts' significance. Accordingly, this evidence is of little probative value and does not prove the towns' assertion that the general operating budget contains no appropriations for Sandown Central's operation.

Regardless Of Whether Its Budget Was "Zeroed Out," The Institution Of The Sandown Central Elementary School No Longer Exists: Even assuming that the "No Means No" statute precludes the use of district funds to operate the Sandown Central Elementary School, as it was constituted at the time of the 2015 annual meeting, this does not mean that Timberlane had to allow the building to sit fallow. The voters did not mandate any specific use for the building. They certainly did not require the School District to mothball the building, or to use it as a warehouse, or as administrative space or to dispose of the building by lease, sale or transfer. Likewise, the voters cannot be presumed to have prohibited the School District from heating the building (lest the pipes explode) or from maintaining the building and grounds once it is repurposed.

The School Board then voted to re-purpose the building. The proposed use includes district-wide special education for preschool and kindergarten. Neither party disputes that the operating budget includes funds for faculty, staff, equipment, supplies, and suitable shelter and space for such a purpose. The rejection of Articles 4 and 11 does not prohibit the school district from turning on the lights, sweeping the floors, plowing the parking lot, etc. in connection with the use of the building for district wide special education classes.

[17] The School Board then placed all Sandown students in grades 1 through 4 in the Sandown North building. Thus, every grade, class, curriculum and activity that had been housed at Sandown Central is now consolidated at Sandown North. Although the building remains, the platonic ideal of Sandown Central as it existed at the time of the 2015 annual meeting is no more.

The Board next moved Sandown's pre-K and K students from Sandown North to their new home at Sandown Central. This was a completely new use for the building. The parties do not dispute that the district's operating budget provided funds for Sandown's pre-K and K faculty, staff, equipment and supplies. They likely cannot dispute that there may be some cost savings by placing more children of the same age (i.e. Sandown students and district-wide special education students) with many of the same needs in the same building. While it is fair to assume that some additional custodial and maintenance costs will be incurred as a result of housing Sandown's pre-K and K students with the district-wide special education students, the court cannot conclude that the voters prohibited this expense.

Finally, the parties have not presented any evidence from which the court can conclude that either:

A. There is presently a single Sandown elementary school, known as the Sandown North Elementary School, with two campuses, one of which houses pre-K and K students; or

B. There are presently two separate Sandown elementary schools, with separate administrations and redundant expenses.

[18] Certainly, there was no warrant article that prohibited the Sandown North Elementary School from using the Sandown Central Elementary School building and grounds.

In short, the towns have failed to demonstrate a likelihood of success on the merits of their "No Means No" law claim.

(ii) Right to Know

The towns maintain that Timberlane violated RSA 91-A:2 when the superintendent's advisory committee conducted non-public meetings. Pet. ¶ 30. As a remedy for this alleged violation the Town seeks to invalidate the School Board's decision to repurpose the Sandown Elementary School building in the manner described above. See, RSA 91-A:8.

Timberlane claims that the Superintendents' committee is not a public body subject to RSA 91-A:2 and that, even if it is, invalidation of the School Board's action would be an inappropriate remedy. See, Obj. Mot. Prelim. Inj. at 17.

The court need not decide whether the Superintendent's advisory committee is a public body within the meaning of RSA 91-A:1-a, I and VI, and, therefore, subject to the open meeting requirements of RSA 91-A:2. Even if this were the case, invalidation of the School Board's vote would be unwarranted. The pertinent statutory provision, RSA 91-A:8, III provides as follows:

The court may invalidate an action of a public body or public agency taken at a meeting held in violation of the provisions of this chapter, if the circumstances justify such invalidation.

In Lambert v. Belknap County Convention, 157 N.H. 375, 381 (2008), the Supreme Court explained that invalidation is a discretionary, rather than a mandatory remedy. [19] Thus, the court must consider whether the present circumstances justify the discretionary invalidation of the School Board's actions.

The court finds that invalidation would be grossly inappropriate. The School Board made its decision at a properly noticed public meeting. Although it certainly considered the report of the Superintendent's advisory committee, it also had the benefit of public input and it made its decision in public and on the record. To punish a bunch of four and five year old children and their parents, by upending the Board's decision to house certain pre-K and K classes in a particular school building would be most inappropriate.

Therefore, the towns have failed to prove a likelihood of success on their claim for invalidation under RSA 91-A:8, III.

C. Other Elements Necessary For Preliminary Injunctive Relief

The towns have failed to demonstrate they will suffer irreparable harm if a preliminary injunction is denied and, for much the same reason, they have failed to prove that the balance of the equities favors the issuance of a preliminary injunction. Neither Town has explained how it will harmed by allowing pre-K and K classes to take place at a school district facility. At best, the Town of Sandown claims some theoretical injury to a contingent remainder interest that it believes it has in the building. Yet the School District will not be causing waste to the building, or encumbering it or in any way burdening the Town.

In contrast, the School District will be greatly harmed by the issuance of a preliminary injunction that forces the District to make new arrangements, within two [20] weeks of the start of the new school year for housing (a) Sandown's pre-K and K students and (b) district-wide pre-K and K special education classes.

For the same reasons, the issuance of a preliminary injunction would be adverse to the public interest.

D. Conclusion

For the reasons discussed above, the towns' request for a preliminary injunction is DENIED. The parties have thirty days from the date of the clerk's notice to submit supplemental memoranda on the issue of standing.

August 7, 2015    /s/   

Andrew R. Schulman

Presiding Justice

1 The record is not 100% clear as to whether the proposed operation budget (Article 2) was amended at the deliberative session. However, there were certainly no amendments that are pertinent to this dispute.