Decision No. 14,119

(May 3, 1999)

Law Office of Thomas J. Kelly, attorneys for petitioner,

Gary T. Kropkowski, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis

S. Jaffe, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of Dr. Dudley Hare, Jr., District Superintendent of the Sole Supervisory District of Putnam and Westchester Counties ("respondent") rejecting petitioner’s request for a boundary alteration. The appeal must be dismissed.

Petitioner owns sixteen undeveloped parcels of property in the town of Southeast in Putnam County. Twelve of the sixteen parcels are in the Brewster Central School District ("Brewster") and four are in the North Salem Central School District ("North Salem").

In September 1997, petitioner submitted a letter to the superintendents of Brewster and North Salem seeking their consent to a boundary alteration, which would transfer twelve parcels of petitioner’s property from Brewster to North Salem. In a joint response dated October 28, 1997, the superintendents denied petitioner's request. They determined that the current boundary does not result in a loss of educational opportunities and that a boundary change would not be economically advantageous to either district. They further concluded that both school districts offer quality educational services to their students.

The record does not indicate that petitioner appealed this determination to the boards of education of Brewster and North Salem. In addition, there is nothing in the record that indicates that the alteration petition was ever presented to or acted upon by the Brewster or North Salem boards of education.

By letter dated August 14, 1998, petitioner appealed to respondent. By letter dated August 31, 1998, respondent refused to disturb the superintendents’ decision. This appeal ensued.

Petitioner seeks an order amending the existing school district boundary line between Brewster and North Salem so that all of the sixteen undeveloped parcels in his subdivision would be in the same school district. In the alternative, he seeks to have the matter remanded to respondent for an administrative hearing. He maintains that the existing boundary line will divide the future neighborhood’s school children between Brewster and North Salem. This, he claims, will have a negative impact on the future student residents’ social, educational and extra-curricular experience. Petitioner also maintains that the existing boundary line will create transportation difficulties for Brewster and a safety hazard for the future residents of the property at issue in this appeal. Petitioner suggests that the alteration of the boundary would remedy these transportation concerns.

Respondent submits that there is no legal basis for the relief sought by petitioner inasmuch as his determination was neither arbitrary, capricious nor contrary to the best educational interests of the future residents of the property at issue. He maintains that petitioner's argument regarding the importance of having neighborhood children attend the same school is unsubstantiated and conclusory because there are no children or parents currently living on the unimproved lots.

The petition must be dismissed for failure to join the Brewster and North Salem boards of education as necessary parties to this appeal. An individual or entity whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Ocwieja, 38 Ed Dept Rep 70; Appeal of Regan, 34 id. 72, application to reopen denied 34 id. 393). The boundary which petitioner seeks to change is situated between Brewster and North Salem. Inasmuch as both Brewster and North Salem would be adversely affected by a decision in favor of petitioner, their respective boards of education are necessary parties to this appeal. Petitioner’s failure to join them requires that the appeal be dismissed.

The petition must also be dismissed because respondent lacks the authority to order the requested boundary change. The statutory procedure for the alteration of school district boundaries is set forth in Education Law ""1507 1508 and 1509. Under Education Law "1507, a district superintendent is authorized to alter school district boundaries with the consent of the boards of education involved (Appeal of Bradley Industrial Park, et. al., 35 Ed Dept Rep 397; Appeal of McCord, 19 id. 509; Appeal of Skeele, 19 id. 141). Education Law ""1508 and 1509 set forth a procedure whereby the district superintendent may make a boundary alteration if the board of education of either district refuses to give its consent. The district superintendent, however, has no authority to order such a boundary adjustment under "1508 if the district which refuses to grant its consent has a population of 4,500 or more and employs its own superintendent (Appeal of Citizens for a United Wading River, Inc., 22 Ed Dept Rep 425; Appeal of McCord, supra; Appeal of Skeele, supra; Appeal of Wegener, 1 id. 106).

In the present case, both Brewster and North Salem employ their own superintendents and have a population of more than 4,500. As such, the consent of both boards of education is necessary before respondent may consider the alteration of a boundary. Without such consent, respondent does not have the authority to authorize the requested boundary alteration.

As set forth above, there is nothing in the record that indicates that the alteration petition was ever presented to or acted upon by the Brewster or North Salem boards of education. The record merely reflects that petitioner submitted a letter to their respective superintendents of schools. Unless and until a proper request is filed with the respective boards of Brewster and North Salem, and they have acted upon such requests, an appeal raising these arguments is not properly before me for decision (Appeal of the Board of Education of the South Jefferson Central School District, 28 Ed Dept Rep 547).

THE APPEAL IS DISMISSED.

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