Decision No. 14,597

(July 12, 2001)

MILLS, Commissioner.--Petitioner, the Board of Education of the Harborfields Central School District ("Harborfields"), seeks an order from the Commissioner directing respondent Board of Education of the Huntington Union Free School District ("Huntington") to turn over tax monies levied and collected with regard to property intersected by the boundary line of the two school districts. The appeal must be sustained.

Respondents Robert and Veronica Elia own property at 8 East Neck Court which, until September 4, 1998, was located wholly within the Huntington district. On September 4, 1998, the Elias purchased, from their neighbor, one square foot of property contiguous to their property. The newly purchased property is located within the Harborfields district. Thus, as of September 1998, the Elias" property was intersected by the Harborfields-Huntington boundary line. Upon acquiring the new property, the Elias immediately contacted Harborfields to designate it as the district of attendance for their daughter, Gabrielle. Gabrielle attended school in Harborfields for the entire 1998-99 school year.

On July 6, 1999, the Town Assessor for the Town of Huntington certified to Harborfields that the school tax levy on the Elias" property for the 1998-99 school year was $6,193.80. By letter dated July 6, 1999, Joseph Dragone, Assistant Superintendent for Business for Harborfields, made a written demand to Huntington"s business administrator for the taxes levied and collected by Huntington on the 8 East Neck Court property for that school year. In two subsequent letters dated July 16, 1999, Mr. Dragone reiterated his previous demand for the payment of taxes collected by Huntington on the Elias' home to offset the cost of Gabrielle"s attendance at Harborfields in 1998-99. Huntington refused to turn over the tax money in dispute and this appeal ensued.

Petitioner contends that when the Elias acquired the property in Harborfields, their daughter became the first child of a new owner-occupant of the property, entitling them to designate a district pursuant to Education Law "3203(1). Petitioner claims that the fact that the designation was made after August 1 of the school year is not an issue, as the property was not acquired until September 4, 1998. Petitioner requests that Huntington be ordered to remit the taxes levied and collected on the 8 East Neck Court property for the 1998-99 school year, in the amount of $6,193.80.

Respondent Huntington claims that the Elias have abused the statutory provision of "3203 by obtaining one square foot of property in Harborfields. Huntington also alleges that the Elias" designation of Harborfields was ineffective because they failed to comply with the statutory notice requirements of "3203 in two respects. First, it maintains that the designation was untimely as it was made after August 1, 1998. Second, even if the designation was timely, Huntington contends that the Elias failed to file any notice of such designation with its district clerk. Huntington maintains that this failure to properly notify it of the designation renders petitioner"s claim to the tax receipts null and void. Huntington additionally alleges that the appeal should be dismissed for failure to join a necessary party, i.e., the Elias. Finally, Huntington maintains that the appeal is untimely.

Respondents Robert and Veronica Elia submitted a letter dated March 8, 2001 requesting that Harborfields receive the tax monies in question, as it has educated their daughter since 1998.

I will first address the procedural issues. Huntington contends that the petition is defective because the Elias were not made a party to the proceeding. This issue is now moot because, pursuant to my authority under "275.1 of the Regulations of the Commissioner of Education (8 NYCRR "275.1), I ordered the Elias joined, and this has been done (See, Appeal of Shravah, et al, 36 Ed Dept Rep 396, Decision No. 13,760, aff"d, Matter of Education Alternatives, Inc. v. Mills, Sup. Ct., Albany Co. (Lamont, J.), December 18, 1997).

Huntington also contends that the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Huntington contends that this appeal is untimely because it was filed more than 30 days after the conclusion of the 1998-99 school year on June 30, 1999. However, the record indicates that petitioner timely attempted to collect from Huntington the tax money in dispute. Petitioner"s assistant superintendent for business, Joseph Dragone, first wrote a letter to Huntington on July 6, 1999 requesting payment of the taxes levied and collected on the Elias' property for the 1998-99 school year. Dragone subsequently submitted two additional written demands on July 14, 1999 before Huntington"s business administrator, David Grackin, verbally informed Dragone that the claim would not be paid. Mr. Grackin allegedly agreed to send a confirming letter, which was never sent. In view of these circumstances, I find the appeal timely.

Huntington claims that the Elias abused the statutory provisions of Education Law "3203. Huntington contends that "3203 did not contemplate granting the designation entitlement to a property owner who purchases one square foot of adjoining property. However, "3203(1) provides in pertinent part:

"3203(2) further provides:

As Huntington points out, the parcel of property located in Harborfields is extremely small. However, the case law interpreting this statute has held that the size of the parcel is not determinative. In Crowe, et al. v. Macfarland, et al., 138 AD 2d 788 (3^rd Dept, 1988), the court held that a property owner who acquired a 0.1-acre parcel to add to his 4-acre parcel met the statutory requirements of "3203, where the only portion of his property intersected by a school district boundary was the newly acquired 0.1 acre parcel. The court further held that the motivation of the owner in purchasing the property is not a proper criterion in interpreting or applying the statute (Id.). Thus, the designation of Harborfields by the Elias was permissible under "3203, and the size of the property they acquired within the designated district is not relevant to this inquiry, nor is the reason they acquired it (Board of Education of the Syosset Central School District, 38 Ed Dept Rep 791, Decision No. 14,144, aff"d, Bd. of Ed. Oyster Bay-East Norwich C.S.D. v. Mills., Sup. Ct., Albany Co. (Sheridan, J.), January 31, 2000).

Respondent Huntington also asserts that the Elias" designation of Harborfields was ineffective due to the Elias" alleged failure to comply with the statutory notice requirement of "3203(1). That section requires the owner of intersected property to file "... a notice of ... designation on or before August first in any year and thereafter or ... when its owner-occupant"s first child commences attending school from such residence and thereafter whenever the ownership of such taxable property changes hands in an arms length transaction...." Thus the failure to file the notice of designation by August 1 is not dispositive of this appeal since the Elias did not acquire the property in question until September 4, 1998. Had the Elias moved into a property with an intersecting boundary line on September 4 they would still have had the right to make a designation notwithstanding the August 1 deadline.

Huntington further claims that the Elias" failure to notify it of their designation of Harborfields requires the dismissal of this appeal. Attached to the petition is a July 6, 1999 letter from Joseph Dragone, Harborfields Assistant Superintendent for Business, to Huntington. In that letter, Mr. Dragone references a letter dated September 24, 1998 from Dragone to Bryan Monaghan, the Tax Assessor for the Town of Huntington. My counsel"s office requested a copy of this letter, which was received and incorporated into the record. The September 24, 1998 letter notifies the Huntington Tax Assessor of the transfer of property, the designation of Harborfields as the district of residence for the Elias" child, and copies David Grackin, the business administrator of respondent Huntington. I find that this letter, sent to Huntington's business administrator within three weeks of the transaction, provided adequate notice to Huntington of the property transfer and the designation. The unique circumstances of this case have led me to conclude that to find otherwise would be inequitable, particularly since the taxpayers of Harborfields have borne the expense of educating the Elias' daughter. Accordingly, pursuant to Education Law "3203(2) petitioner is entitled to receive from respondent Huntington the amount of the taxes Huntington levied and collected on the Elias" property for the 1998-99 school year.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the Board of Education of the Huntington Union Free School District pay to the Board of Education of the Harborfields Central School District the amount of school taxes levied and collected for the property located at 8 East Neck Court in the Town of Huntington, for the 1998-99 school year.

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