Groton — Construction of a new middle school here is contingent on a land swap that has now been thrown into question by the Office of the Attorney General, potentially placing $100 million in state funding for the project at risk.

Groton may not use the land adjacent to Robert E. Fitch Middle School to build its new middle school until it obtains court permission, a spokeswoman for the Office of the Attorney General said Tuesday.

Voters approved spending $184 million on a plan to build or renovate three schools, the state committed to reimburse $100 million to the town, and Groton already has spent nearly $800,000 on the middle school. Construction on the school is set to begin next year and the facility is set to open in 2020.

But construction of the middle school is contingent on a land swap, and now, court permission as well. The Merritt property is deed-restricted for open space and recreation, so the town must provide an equivalent property for conservation in its place, by transferring the deed restrictions elsewhere.  

"We have advised Groton that, due to restrictions imposed by the town when it dedicated the property for open space, it is our opinion that court approval through a (court) action would be required before the property could be used for school construction," said Jaclyn Severance, a spokeswoman for the Office of the Attorney General.

The attorney general's office "has been engaged" with Groton, the Department of Energy and Environmental Protection and "interested parties" around the proposed land swap and construction on the Merritt property, she said. A court — mostly likely the Superior Court — would have to rule on whether the town is allowed to change use of the land, she said.

"This particular property was purchased by Groton on a referendum for open space conservation, largely with bond funds intended for open space conservation. Under the law, neither a municipality nor a legislature can alter a restricted purpose; that authority rests only with the courts," she said.

The Attorney General's Office has not yet determined what position, if any, it will take in the court action, and has no further comment, she said.

If the project stalls on Groton's end, the town never will see the state money again, state Sen. Heather Somers has said.

Groton planned to provide a 20-acre property called Boulder Heights, off the end of Colver Avenue, as an alternative open space so it could use the Merritt property. The State Department of Energy and Environmental Protection also approved the swap.

But last week, more than 70 people packed a Town Council public hearing about whether the town should go forward with the swap. Residents, some of whom spoke as individuals but are members of conservation groups, questioned whether the town followed proper procedure. Building on the Merritt property without offering an alternative of equal value violates the public trust, they said.

The Groton Town Council was expected to vote on the swap Tuesday. Instead, Town Mayor Patrice Granatosky said the town attorney had advised the Town Council to delay the vote until March 27, so the attorney could complete “due diligence” regarding the decision. Councilors later met in executive session to discuss potential legal issues.

Craig Kohler, a member of the former School Facilities Initiative Task Force, urged the council to finish its due diligence and move ahead. He accused those who took issue with the swap of trying to obstruct the school project.

No one "grabbed" the Merritt property for a school secretly, as some have claimed, he said. The task force had dozens of meetings, openly discussed using the land, met with the Town Council and Representative Town Meeting and attended public hearings.

“You all had ample time to come forward at any of these meetings and you did not,” he said, turning to look directly at residents who expressed concerns with the swap.

“The project that we’re talking about doing is developing a school. We’re not talking about a toxic waste dump. A school, with recreational facilities that will be for the betterment of all the kids in this town and for the town.”

d.straszheim@theday.com