SalemNews.com, Salem, MA

February 4, 2013

Court upholds Swampscott school residency requirement — and $12K bill

BY JULIE MANGANIS
STAFF WRITER

---- — SWAMPSCOTT — After several years of saving her money, Rosalin Martinez bought a condo in Swampscott. She sent her son to Swampscott public schools.

“I came from Cuba in the middle of the night on a boat to give him the opportunity of a good education,” said Martinez, 30.

The problem was, Martinez was actually still living in Lynn during the 2010-2011 school year, while her Burrill Street condo was being renovated to bring it up to code.

Now, the Appeals Court has ruled, Martinez owes the town $12,000, the amount the town says it cost to educate her child for a year while she lived in Lynn.

In a decision released on Friday, the three-judge Appeals Court panel upheld a Superior Court ruling that also found in the town’s favor, citing state law and a prior legal precedent (involving the Hamilton-Wenham school district) that ties public school enrollment to residency, not whether someone owns property or pays taxes in a particular district.

While school officials are pleased, Martinez is not.

“I think it is not fair what Swampscott is doing,” said Martinez. “It’s just not fair.”

She and her lawyer, David Bobrow, argued in court that it’s not fair to bar her son from attending school in a town where she not only paid property taxes but where the child’s social life was centered, pointing to youth sports, after-school activities and even trick-or-treating.

Bobrow said their stay in Lynn was temporary, while the condo was made habitable. He compared it to a situation where a family is forced out of a home by a storm.

Martinez said she and her son, now a third-grader, slept on the floor of an office on Exchange Street because the condo was not safe for them to live in. “It wasn’t safe for any kid to live there,” said Martinez, “because there was construction and dust.”

The case started in the middle of the 2010-2011 school year, when school officials sought to remove the boy from the school after discovering that he was living in Lynn. Martinez went to court and obtained a temporary order to keep the child in Swampscott, after a judge agreed it would be disruptive to the child’s education to force him to change schools mid-year.

But the judge also allowed the town to put a lien on the family’s condo for $12,000.

Then the town filed its response — and a counterclaim seeking reimbursement for educating the child.

The case dragged into the following school year. In September 2011, the family received an occupancy permit to move into the condo, which finally made it legal for the boy to attend school in Swampscott. A few weeks later, a judge granted summary judgment in favor of the town and awarded the $12,000 restitution.

After trying to get the judge to reconsider, Martinez and her lawyer filed an appeal last March.

But on Friday, they learned the appeal had been denied.

“First, there is no record evidence indicating that the plaintiff and her son ever had lived in their Swampscott house until September 2011, when the renovations on their house were completed,” the judges wrote. “Nor is there record evidence showing that they lived at any other address in Swampscott during this or any other period of time.

“Second, the plaintiff admitted at the (school) board hearing that she and her son spent their nights in Lynn during the 2010-2011 school year. Finally, the plaintiff lacked an occupancy permit for her Swampscott house until September of 2011, so she and her son could not legally reside there during the 2010-2011 school year.”

“My client, Ms. Martinez, obviously doesn’t agree with the decision and is considering her options,” said Bobrow.

But Martinez isn’t sure she wants to continue the legal battle.

“I have been fighting with them for over a year,” said Martinez, who said she has legal refugee status, works at a travel agency and also attends classes at UMass Boston, where she’s studying management.

Superintendent Lynne Celli said it’s not unusual in a non-school-choice district like Swampscott to have students seeking to attend school while living in another community.

“We’re a good school district,” said Celli. “We’re in the top 50. People want to come here, and I would love to take everybody.”

What was unusual is the lengthy court battle over the case.

“We’re obviously very pleased this has been resolved,” said School Committee Chairman Laurier Beaupre. “It’s been consuming a considerable amount of time.”

The district still has a lien on the condo. Neither Celli nor Beaupre could say, at this point, how they will proceed with regard to collecting on the judgment.

“I don’t really have that money,” said Martinez. “I suppose I have to pay it little by little. I don’t know.”

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.