Decision No. 13,237

(August 3, 1994)

Behrens, Loew & Cullen, Esqs., attorneys for respondent, William M. Cullen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal of respondent Board of Education of the Franklin Square Union Free School District to alter its boundary with the Garden City Union Free School District. Petitioner seeks an order transferring her property and that of several of her neighbors to the Garden City district. The appeal must be dismissed.

Petitioner is a resident of the Village of Garden City, but her home is located within the Franklin Square Union Free School District. She claims to represent, in addition to her own interest, the interests of the owners of fourteen other residences which are similarly situated. According to petitioner, eight children currently reside in these residences, five of whom are currently of school age.

It appears that as early as 1992, petitioner contacted the district superintendent and the State Education Department about a possible boundary alteration. The record does not reflect the result of those contacts. Although the record is again incomplete, it further appears that early in 1993, petitioner and the other persons she purports to represent presented a formal petition to the Franklin Square board and asked that their properties be transferred to the Garden City Union Free School District.

By letter dated February 9, 1993, the president of respondent board advised petitioner that the board had considered and rejected her request. Petitioner then made a further request which was rejected by letter dated May 21, 1993. When petitioner again sought reconsideration, the newly elected board president advised her by letter dated August 2, 1993 that the board adhered to its earlier decision and that the matter would not be placed on its agenda again.

On or about September 28, 1993, petitioner wrote to the district superintendent seeking an order altering the boundary between the two districts, despite the refusal of the Franklin Square board to consent to the alteration. By letter dated October 12, 1993, the district superintendent refused to do so on the ground that he lacked jurisdiction. This appeal was commenced on November 12, 1993.

Petitioner contends that the current situation in which the affected children reside in the Village of Garden City, but attend school in the Franklin Square district where the children make most of their friends, is undesirable and results in a sort of "isolation." She contends that a change in the boundary between the districts would be of both educational and social benefit to the children. She also claims that she and the other affected residents are forced to support a Garden City library, which is supported by village taxes, and a Franklin Square library, which is supported by school taxes.

Respondent contends that there is no legal basis for the relief sought by petitioner, in the absence of consent by either the Franklin Square or Garden City district. Respondent further claims that the appeal is untimely. Respondent also asserts that petitioner has failed to join certain necessary parties, both as petitioners and respondents. Respondent finally alleges that its educational program will be substantially injured by the loss of school tax revenue and State aid if the fifteen affected properties are transferred to the Garden City Union Free School District as petitioner requests.

The appeal commenced on November 12, 1993 is clearly untimely. Commissioner's regulation '275.16 provides that an appeal to the Commissioner must be instituted within thirty days from the making of the decision or the performance of the act complained of. The Commissioner may excuse a failure to commence an appeal for good cause set forth in the petition. In this case, there is no reason set forth in the petition. The act about which petitioner complains occurred on January 27, 1993, when respondent board considered petitioner's request and refused to consent to an alteration of its boundaries. Notice of this rejection was sent to petitioner on February 9, 1993. Assuming that petitioner would have received the notice of rejection a few days after it was sent, this appeal should have been commenced in the early part of March 1993. Instead, petitioner made two more efforts to ask respondent board to change its mind. These attempts amount to efforts to gain a reconsideration or reversal of the decision, but such attempts do not extend the time in which an appeal must be commenced (Appeal of Moore, 33 Ed Dept Rep , Decision No. 13204, June 10, 1994; Appeal of Hall and Cooper, 32 id. 377; Appeal of Zeff, 29 id. 5; Appeal of Vachon, 28 id. 276; Appeal of McIntyre, 25 id. 156; Matter of Tripi, 21 id. 349).

The appeal must also be dismissed on the merits. The petition states no statutory basis for the appeal, but it appears that petitioner seeks relief pursuant to Education Law '1508, under which, in some circumstances, a district superintendent may order a boundary alteration even though not all affected districts have consented. However, previous decisions of the Commissioner have interpreted '1507(2) to limit the district superintendent's authority in this regard. (See, e.g., Matter of McCord, 19 Ed Dept Rep 509); Matter of Murtagh, 10 id. 211; Matter of Wegener, 1 id. 106; Matter of Cartwright, 77 St Dept Rep 160; Matter of Taylor, 74 id. 25). Under that provision, no boundary alteration may take place that affects a union free school district having a population of 4,500 or more, and employing a superintendent of schools without the written consent of the district's board of education. According to the records of the State Education Department, the Garden City Union Free School District meets the criteria set forth in Education Law '1507(2), and it is clear from the record herein that that district has not given its written consent to the alteration sought by petitioner. As a result, the district superintendent correctly refused to act pursuant to '1508 (Matter of Taylor, supra; Matter of Cartwright, supra; Matter of Wegener, supra; Matter of Murtagh, supra; Matter of McCord, supra).

Regarding the Franklin Square board's refusal to consent to a boundary alteration, absent proof that the refusal was not in the best interest of the children involved or was arbitrary and capricious, such decision will not be set aside (Matter of Dykeman, 21 Ed Dept Rep 241; Matter of Murtagh, supra; Matter of Hoffman, 9 id. 114). The paramount consideration in cases involving a proposed alteration of district boundaries is the educational interest in the children involved (Matter of Hartzell, 7 Ed Dept Rep 128; Matter of O'Connor, et al., 4 id. 8). Petitioner must make a clear showing that the denial of the relief requested will adversely affect those interests (Matter of Ruscoe and Nickles, 14 Ed Dept Rep 197; Matter of Denslow, et al., 8 id. 17). The record indicates that petitioner has failed to meet this burden of proof and that the determination of the Franklin Square Board was not arbitrary and capricious.

Petitioner maintains that the area in question is socially isolated from the rest of the Franklin Square district and that this isolation is detrimental to the best interest of the children involved. Petitioner argues that the children would best be served by their attendance in the Garden City School District, since they would have greater opportunities to form and maintain friendships with children who reside in their own neighborhood and attend the Garden City schools. While it is natural that parents desire that their children attend school with other children in the neighborhood, that desire is not a sufficient basis for ordering a school district boundary alteration (Matter of Cooper, et al., 15 Ed Dept Rep 293).

The effect of a boundary change on the educational resources of both districts must be considered (Matter of Dykeman, supra; Matter of Kirschmann, 19 Ed Dept Rep 424). Petitioner's proposed boundary change would result in a substantial loss of tax revenue and State aid to the Franklin Square district. This loss of tax revenue would decrease the educational resources available to its remaining students. Accordingly, I cannot conclude that respondent's decision in this matter was arbitrary or capricious or that the best educational interest of all the children involved will be served by granting petitioner the relief she requests.

Because petitioner failed to join either the Garden City Union Free School District or the district superintendent as parties to this appeal, the relief sought could not be granted in any event. See, e.g.Appeal of Bonanno, 33 Ed Dept Rep 610; Appeal of Seerup, 33 id. 585.

In view of the disposition herein, it is unnecessary to consider the parties' remaining contentions.

THE APPEAL IS DISMISSED.

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