Decision No. 13,364

(February 23, 1995)

SOBOL, Commissioner.--Petitioner, the Board of Education of the South Glens Falls Central School District, seeks an order precluding respondent Board of Education of the Hudson Falls Central School District from petitioning respondent Gerald Carozza, District Superintendent of the Washington-Saratoga-Warren-Hamilton-Essex Board of Cooperative Educational Services, to determine a boundary, pursuant to Education Law '2215(1). The appeal must be dismissed.

In November 1991, Dr. Albert Clarke, then Assistant District Superintendent of the Saratoga-Warren Board of Cooperative Educational Services (BOCES), altered the boundary between the South Glens Falls school district, one of the districts within the BOCES, and the Hudson Falls school district, which was not within that BOCES. As a result of that action, the Town of Moreau assessor divided approximately 500 acres of real property owned by Niagara Mohawk Power Company ("NIMO") into three parcels. After this division, two parcels, which were previously located within the Hudson Falls school district, were placed in the South Glens Falls school district. The other parcel remained in the Hudson Falls school district. Dr. Clarke's determination was based upon an investigation of the records relating to the boundaries between the South Glens Falls Central School District and the Hudson Falls Central School District. According to the tax map filed with the real property tax office in Saratoga County, the boundary line between the two school districts was incomplete. Dr. Clarke's determination was also based in part upon assertions by F. Donald Myers, who was the superintendent of Central School District #1 of the Towns of Moreau, Northumberland and Wilton between 1941 and 1977.

Information supplied by Mr. Myers indicated that the South Glens Falls Central School District was organized in 1943 and that the boundary was not completely described in the order creating the school district. Information from Mr. Myers also showed that on the State master plan district reorganization map dated 1943, there was a notation from 1953 denoting a boundary adjustment between the two districts. Mr. Myers indicated that he was the author of a description of the subject boundary line which was purportedly adopted by Hudson Falls and South Glens Falls as part of a Consent Agreement under Education Law '1507 on May 8, 1953. The map reflecting that agreement was apparently never filed with the State Education Department or any other governmental entity. According to Mr. Myers, the boundary line between the two school districts was formed by a set of railroad tracks which ran into a local paper plant. Mr. Myers asserted that all property owned by the power company and private industry to the east of the track was part of the Hudson Falls school district and all property to the west of the track was part of the South Glens Falls district.

Petitioner alleges that after the 1991 determination, the maps of the Saratoga County Tax Mapping Department and the Town of Moreau were changed. Upon learning of the boundary change, Hudson Falls, on behalf of NIMO, filed a grievance in May 1992 with the Town of Moreau Board of Assessment Review alleging that the boundary was incorrect. In August 1992, Hudson Falls commenced a tax assessment review proceeding against the Town of Moreau and its assessor, pursuant to Article VII of the Real Property Tax Law. On September 12, 1992, Hudson Falls instituted a proceeding pursuant to Article 78 of the New York State Civil Practice Law and Rules in Supreme Court, Saratoga County against the Town of Moreau and its assessor, claiming a procedural flaw in the boundary correction. In a decision dated December 17, 1992, Justice Jan H. Plumadore granted Hudson Falls' motion for summary judgment in the Article VII proceeding and dismissed the Article 78 proceeding as moot. At petitioner's request, respondent Carozza met with the parties from South Glens Falls and Hudson Falls on May 6, 1993 to mediate the dispute, but the parties could not reach agreement. South Glens Falls then appealed to the Appellate Division which, in a decision dated March 3, 1994, unanimously reversed the Supreme Court and held that this matter should first be reviewed by the Commissioner of Education. Hudson Falls' request for leave to appeal to the Court of Appeals was denied on June 30, 1994. Hudson Falls then asked respondent Carozza, pursuant to Education Law '2215(1), to determine the proper location of the boundary between the two districts. Petitioner appeals this request seeking to prevent respondent Carozza from determining this matter.

Before reaching the merits, I will address a procedural matter. A review of the record reveals that petitioner's reply papers contain new material which was not previously set forth in the petition. However, a reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (8 NYCRR 275.14; Application of Verity, 31 Ed Dept Rep 485; Appeal of Pronin, 27 id. 203). Therefore, I will not consider the material belatedly added by petitioner in the reply.

Turning to the merits, petitioner asserts that the boundary was properly determined, pursuant to Education Law '2215(1) in 1991. Petitioner contends that since respondent Hudson Falls failed to appeal that determination to the Commissioner, it should now be enjoined from requesting another determination pursuant to Education Law '2215(1). Petitioner further contends that respondent Carozza should not be allowed to make a boundary determination in this case because he has had ex-parte communications with respondent and, therefore, cannot be objective. Respondent Hudson Falls argues that proper procedures for altering a boundary were not followed by the former assistant district superintendent of the Saratoga-Warren BOCES and, therefore, this matter is ripe for decision in accordance with Education Law '2215(1).

The issue before me is not whether the 1991 determination was accurate, but whether proper procedures were followed when that determination was made. I find that proper procedures were not followed. Education Law '2215(1) provides that a district superintendent of schools has the power to:

The record reflects that when Dr. Clarke made his determination in 1991, South Glens Falls was one of the districts within the Saratoga-Warren BOCES, but Hudson Falls was not. As set forth in the statute, Education Law '2215(1) authorizes a district superintendent to amend boundaries "within his supervisory district." Therefore, because one of the school districts involved was not within the Saratoga-Warren BOCES, the district superintendent or, in this case, the assistant district superintendent, had no authority in 1991 to make that boundary determination.

Moreover, the record is devoid of any evidence that an amended record of the 1991 boundary determination was filed with the State Education Department. Indeed, the records of the State Education Department do not contain any amended record of such determination. Since Education Law '2215(1) requires a district superintendent, who makes a boundary amendment, to file a record of such amendment with the State Education Department, it is clear that the statute was not complied with in 1991. Finally, I note that Hudson Falls alleges that it first learned of the boundary change when it received a copy of the proposed 1992 tax assessment roll. Hudson Falls maintains that the boundary change was made without notice to it and without it having an opportunity to submit evidence on this matter. Petitioner presents no evidence to dispute those allegations. Based on the foregoing, it is apparent that the 1991 determination was made without complying with Education Law '2215(1).

Both petitioner and respondent Hudson Falls are now under the jurisdiction of the Washington-Saratoga-Warren-Hamilton-Essex BOCES. Accordingly, since both school districts are now within the same supervisory district, an amendment to their common boundary can be made in accordance with Education Law '2215(1).

Additionally, I am not persuaded by petitioner's contention that respondent Carozza must recuse himself from rendering a decision in accordance with Education Law '2215(1). In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Parrish, et al., 32 Ed Dept Rep 261; Application of Verity, supra; Appeal of Singh, 30 id. 284). Petitioner offers only conclusory statements that respondent Carozza is biased in this matter. The record does not reflect any bias by respondent Carozza, only that he presided over a meeting at which resolution was sought but not reached. Since petitioner's claim of bias is based, in its entirety, on mere speculation and petitioner has not presented any evidence to support its claim, this claim must be dismissed. Accordingly, respondent Carozza may proceed to examine the boundary line issue between the districts.

THE APPEAL IS DISMISSED.

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