MARYLAND STATE BOARD OF EDUCATION

JANIS ZINK SARTUCCI, ET AL. APPELLANT v.
MONTGOMERY COUNTY BOARD OF EDUCATION, RESPONDENT
* * * * * * * * * * * *

RESPONDENT'S MOTION TO DISMISS The Board of Education of Montgomery County ("County Board"), Respondent, through its undersigned counsel, asks the Maryland State Board of Education ("State Board") to dismiss the instant Complaint, pursuant to COMAR 13A.01.05.03C, and states the following in support thereof, as more fully set forth in the memorandum attached hereto and incorporated
herein:

1.
2.

Appellants lack standing to bring this Appeal.
Appellants present no cognizable claim. Appellants challenged the June 16,

2011, actions of the Respondent in granting utility easements across several public school properties. Such actions were within the authority of the County Board. 3. 4. Appellants' claim is untimely and should be dismissed. Appellants are not entitled to the relief they seek.

MARYLAND STATE BOARD OF EDUCATION JANIS ZINK SARTUCCI, ET AL. APPELLANTS
v.

MONTGOMERY COUNTY BOARD OF EDUCATION RESPONDENT

*

RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS

The Board of Education of Montgomery County ("County Board") submits the following Memorandum in support of its Motion to Dismiss.
Factual Background

In preparation for its June 16, 2011, public business meeting, the County Board disseminated its meeting agenda (Respondent's Exhibit 1) showing the action items that would be before the County Board at that meeting. Several matters relating to school facilities were on the agenda for June 16, 2011, under "Consent Items," including the grant of utility easements at six school sites to Comcast of Potomac, LLC, a/Ida Comcast Cablevision of Maryland, LLC ("Comcast"). As explained in the Memorandum from then-Superintendent of Schools, Dr. Jerry D. Weast, the school system ("MCPS") had previously entered into telecommunications agreements with T-Mobile, Northeast, LLC, leasing a portion of each school site for a telecommunications monopole. All of the telecommunications leases with TMobile on the six school sites at issue were executed between 2005 and 2008.

Recently, T-Mobile decided to change its service provider from Verizon to Comeast, necessitating a separate utility easement across each of the six public school sites. The County

Superintendent, through the MCPS Department of Facilities Management, negotiated an agreement granting Comcast a utility easement to run its cables underground to the telecommunications tower on each of the six school sites. It is the school system's practice to bring all easement agreements to utility companies (gas, electricity, water, cable television, etc.) to the County Board for its review and approval, as was done in this case at the June 16, 2011, County Board meeting. By way of further background, the County Board long ago adopted Policy ECN "Telecommunications Transmission Facilities" in response to Montgomery County's public policy of encouraging the expansion of telecommunications services to meet the needs of county residents. In accordance with the Telecommunications Act of 1996 enacted by Congress [47 U.S.C. § 332 et seq.], the County Board adopted Policy ECN to explain how MCPS would evaluate requests from telecommunications providers to place transmission facilities on public school property. The County Board's discussion and adoption of its policy occurred after several public meetings with public input. See excerpts from the minutes of County Board meetings held July 8, 1997 and November 11, 1997 (Respondent's Exhibit 2).
Argument
1.
This appeal should be dismissed for lack of standing.

Appellants assert that they have standing "to file this appeal as interested County residents and parents residing in Montgomery County, Maryland." That statement alone is not sufficient to establish legal standing. Appellants have alleged no facts indicating that they

have an interest that is any different from the public at large. Montgomery County has hundreds of thousands of residents, among them hundreds of thousand parents.' They present
no facts alleging that they would be affected adversely in any way. Merely saying that

Appellants are residents or parents, even if they had supplied addresses or other factual

allegations to support the conclusions, is not sufficient. The Maryland State Board of
Education ("State Board") has held that to have legal standing a person must show that [s]he
has a direct interest or will suffer "some injury or harm different from a generalized interest in

the subject matter of the case." Sartucci v. Montgomery County Board of Education, MSBE Op. 10-31, p. 8, (August 24, 2010). The State Board explained the requirements of standing: [T]he general rule on standing is that "for an individual to have standing. . .he must show some direct interest or 'injury in fact, economic or otherwise'." See Schwalm v. Montgomery County Board of Education of Montgomery County, MSBE Opinion No.00 - 10 (February 23, 2000); Vera v. Board of Education of Montgomery County, 7 Op. MSBE 251 (1996); 7 Op. MSBE 251 (1996); Way v. Howard County Board of Education, 5 Op, MSBE 349 (1989). This showing of a direct interest or injury in fact requires that the individual be personally and specifically affected in a way different from the public generally and is therefore, aggrieved by the final decision of the administrative agency. See Bryniarski v. Montgomery County Bd. of Appeals, 247 Md. 137, 144 (1967).
Id., quoting Clarksburg Civic Association v. Montgomery County Bd. of Educ., MSBE Op. No. 07-34, pp. 2-3, (August 29, 2007). An "injury in fact" is an invasion of a legally protected interest that is concrete and particularized and not conjectural or hypothetical. Luj an v. Defenders of Wildlife, 504 U.S.
555

560 (1992). Appellants have not demonstrated that they have a direct interest or "injury in

fact" that is different from the public generally pertaining to the County Board's decision to
According to the 2010 United States Census reports, Montgomery County is the most populous county in Maryland with 971,777 residents. http://2010.census.govinews/releases/operations/cb11-cn20.html The Montgomery County Public Schools is the largest public school sytem in Maryland, with 144,064 students enrolled during the 2010-2011 school year. http://www.montgomeryschoolsmd.org/uploadedFiles/about/MCPS-At-A-Glance.pdf

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grant a utility easement over school property. Accordingly, this appeal should be dismissed for
lack of standing.

2.

This Appeal presents no legally cognizable claim and should be dismissed.

Appellants cite a non-existent COMAR regulation [13A.01.01.03] as the jurisdictional
authority for this Appeal and then allege that "the decision was contrary to sound educational

policy and violated Local Board Policy." Appellants give no further explanation about how the

County Board's decision to grant utility easements is allegedly contrary to sound educational policy or what local policy was violated and how. Appellants also allege that "Local Board
does not have the authority under State law to lease public school land to private entities," but

present no further explanation or legal support of this pronouncement. The County Board
cannot, and should not be required to, respond to bald conclusions that cite no specific laws or

policies allegedly violated and fail to explain how the County Board's actions constitute a
violation. Neither the County Board nor the State Board should not have to guess what Appellants are talking about. It is Appellants' burden to articulate a legal and factual basis for their claims. Appellants' statements are undefined, unsubstantiated, and without merit.

It is Appellants' burden to allege facts that support their conclusions and then prove
their allegations of wrongdoing by a preponderance of the evidence. They have done neither. The appeal letter submitted to the State Board fails to set forth a cognizable claim and, therefore, this appeal should be dismissed.

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3.

rfhis appeal should be dismissed as illogical and untimely.

Appellants' claim that they are challenging the County Board's June 16, 2011, action granting utility easements to Comcast, but Appellants' letter of appeal does not even mention or discuss the subject of "easements." Instead, Appellants seem to be using the Action Items of June 16, 2011, as a way to challenge the telecommunications lease agreements executed years
ago. Each of the T-Mobile leases on the six school sites at issue was executed between 2005

and 2008 (see leases contained in Appellants' Exhibit C) so, to the extent that Appellants' appeal challenges, in 2011, lease agreements approved between 2005 and 2008, the appeal is clearly untimely and should be dismissed on that basis. Appellants' position is illogical and they never address the reality that utility companies
and cable companies, most of which are private corporations and not public entities, routinely

need and acquire easements in order to traverse public school property to provide their commodities and services. How would electricity ever get to a school building? Appellants ignore the fact that almost every public school property owned by the County Board contains some easements granted to Pepco, BGE, WSSC, Washington Gas Light Company, or some similar private entity. All of those easements (i.e., a defined but limited interest in real
property) were approved by the County Board at public meetings, after notice and opportunity

for comment through letters, e-mails, and/or phone calls. The County Board did nothing

different when it approved utility easements to Comcast at the June 16, 2011 meeting, and
Appellants have utterly failed to provide any justification for their extreme and baseless position and, therefore, the appeal should be dismissed. 5

4.

Appellants' arguments lack merit. Appellants' letter of appeal consists of

several disjointed statements that amount to unsubstantiated non-sequiturs. For example,
Appellants referred to Board Policy ECN "Telecommunications Transmission Facilities" and

charge that the Policy "was violated in the placement of each of the telecommunications transmission facilities" and that the Policy is defective in that "outside agencies approve the placement of telecommunication transmission facilities without the consent of the land owner. . No further explanations are presented. No reasonable person can decipher the meaning of
such unsubstantiated, cryptic conclusions, completely unsupported by any allegations of fact, nor should anyone be required to do so. What is clear is that school boards have considerable discretionary authority over public school property and have authority to adopt policies, not inconsistent with State school law or State Board bylaws. Md. Educ. Code Ann. § 4-108; see, also, 76 Md. Op. Att'y Gen. 147 (1991). As an owner of public land, the County Board is subject to the requirements of the

Federal Telecommunications Act of 1996 and cannot adopt a policy that has the effect of prohibiting the provision of personal wireless services. 2 The County Board recognized, in 1997, that it could earn profitable rental fees by leasing a portion of school property to a
telecommunications company and could promote the public interest by co locating several
-

providers on the same cell tower. The County Board was aware of both the benefits and the legal requirements involved in cell towers when it adopted a policy establishing criteria for the

See 47 U.S. C. §332 (c)(7) which places limitations on a State or local government's regulation of the placement, construction, and modification of personal wireless service facilities (i.e. cell towers). Such regulations shall not "unreasonably discriminate" among providers of equipment services or "prohibit or have the effect of prohibiting the provision of personal wireless services." Since adoption of the 1996 law, the Federal Communications Commission (FCC) has clarified and limited the grounds whereby a State or local government can limit or restrict a company's request to construct facilities for personal wireless services.
2

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review and approval of Telecommunications Transmission Facilities. See Minutes of the 1997 Board meetings, Respondent's Exhibit 2. The actions taken by the County Board at the June 16, 2011, public meeting violated no applicable law or policy. The Superintendent fully informed the County Board and the public

of the reasons for granting the utility easements to Comcast, and the Board Resolution, once
approved, authorized the Board President and the Superintendent to execute the respective utility easements and rights-of-way as defined in the Resolution. Notwithstanding the

unfounded and unsupported conclusory allegations of Appellants, each Action Item was
properly approved and adopted pursuant to applicable laws and policy.

Conclusion

Appellants lack the requisite standing to maintain their appeal before the State Board. Simply being a resident or parent is not sufficient to maintain standing and Appellants have
failed even to allege facts that support their assertion that they are residents and parents of public school students. Moreover, Appellants ' vague, unsubstantiated, and, at times,

indecipherable conclusory allegations, purportedly challenging the County Board's grant of utility easements at the June 16, 2011, meeting fail to state a claim and lack merit. The appeal
presents no facts which, if true, show any violation of anything by the County Board. To the

extent that Appellants attack the underlying telecommunications leases executed between 2005
and 2008, the appeal is untimely. Accordingly, the County Board's Motion to Dismiss should be GRANTED.

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Respectfully Submitted,

Michael S. Mo inaro

CARNEY, KELEHAN, BRESLER, BENNETT & SCHERR, LLP

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