Decision No. 12,620

(December 30, 1991)

Keane & Beane P.C., attorneys for respondent, Richard L. O'Rourke, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from a decision of respondent consenting to the alteration of the boundary line between the Brewster Central School District and the Carmel Central School District. Petitioners request that I issue an order directing that the boundaries be maintained as shown on the Putnam County tax map at the time that petitioners purchased their property. Both school districts are within Putnam County. The appeal must be dismissed.

Petitioners purchased a home in Patterson, a town in Putnam County, in 1987. The Putnam County tax map depicted petitioners' property and residence as existing in the Brewster Central School District. In 1989, petitioners discovered that the bank holding the mortgage on their property was paying the school tax to the Carmel Central School District. In the same year, Putnam County officials discovered numerous discrepancies between the boundary line as set forth in the tax map and the treatment of various properties for school tax purposes. All of the affected properties are located in Patterson.

In the case of one set of properties, located along Route 164 and hereinafter referred to as the "Route 164" properties, the property owners had historically paid school taxes to the Carmel Central School District and sent their children to the Carmel Central School District, although the tax map depicted the properties as residing in the Brewster Central School District. Petitioners' property falls into this category. In addition, with respect to another group of properties, located along Ice Pond Road and hereinafter referred to as the "Ice Pond Road" properties, the owners had historically paid school taxes to the Brewster Central School District and sent their children to the Brewster Central School District, although the tax map depicted the properties as residing in the Carmel Central School District.

In these circumstances the two districts had two courses of action available to them to correct the discrepancy between the tax map and the actual treatment of the properties: (1) take steps to transfer the students to the proper schools based on the tax map boundary and make the appropriate concurrent changes in the tax rolls or (2) seek to modify the existing boundary. The boards of education of the respective districts met in December 1989 and decided to each consent to change the boundary pursuant to Education Law '1506, etseq. to make the boundary conform with the historical and currently prevailing situation. In accordance with this decision, respondent passed a resolution on December 4, 1989, consenting to the transfer of petitioners' property to the Carmel Central School District, along with the other similarly situated Route 164 properties. Respondent passed a similar resolution consenting to the transfer of the Ice Pond properties from the Carmel Central School District to the Brewster Central School District. These resolutions were confirmed at the March 1, 1990 school board meeting. It was subsequently discovered that the resolutions passed in December 1989 and on March 1, 1990 failed to list six of the affected properties. At the May 22, 1990 school board meeting, respondent corrected the minutes of those prior meetings to include by tax map designation all of the properties to be transferred from Carmel Central School District to respondent. Petitioners' property was not affected by the corrective action taken by respondent on May 22, 1990. Petitioners commenced this appeal objecting to the boundary alteration that would transfer their property to the Carmel Central School District.

Petitioners contend that although their child presently attends private school, they purchased their property partially in reliance on the fact that it was located in the Brewster Central School District as shown on the tax map, because their children may attend the schools in the respondent district in the future.

Respondent contends that with respect to the Ice Pond Road properties, children of the property owners over the years have enrolled in the Brewster schools and at the time that the tax assessor discovered the discrepancy, two children of these property owners were enrolled in the Brewster schools. Further, respondent contends Ice Pond Road is a narrow dirt road with steep grades and sharp curves. At times it is impossible to proceed northward and the only means of egress and ingress is in the southerly direction toward Brewster.

With respect to the Route 164 properties, respondent contends that they are in closer proximity to schools in the Carmel Central School District and enjoy ease of access via an existing paved road to the Carmel Central School District. The superintendent of respondent school district indicated in his affidavit that he was unaware of any students from these properties ever having been enrolled in the district's schools. Respondent stated, and it was not disputed by petitioners, that at the December 1989 meeting the two districts considered, in addition to historical precedent and geographical proximity, the impact of any decision on the children residing in the Ice Pond properties presently enrolled in the Brewster schools whose education would be disrupted by a transfer to Carmel in conformity with the tax map designations. With respect to tax revenue implications for the school districts, the least disruptive decision would be to maintain the status quo. Finally, respondent argues that the petition suffers from procedural defects in that : (1) it is not timely within the meaning of the provisions of 8 NYCRR '275.16 of the Commissioner's regulations, and (2) that the petition failed to join the Board of Education of the Carmel Central School District and the District Superintendent, and, therefore, the appeal should be dismissed.

Section 275.16 of the Commissioner's regulations requires that an appeal be instituted within 30 days from the making of the decision or the performance of the act complained of in the appeal. The Commissioner may excuse a failure to commence an appeal within the time specified if good cause is shown for the delay and the reasons for the failure must be set forth in the petition. Respondent passed the initial resolution consenting to the boundary alteration on December 4, 1989. It passed confirming resolutions on March 1, 1990. The action taken by respondent on May 22, 1990 did not alter the original resolutions affecting petitioners' property.

Petitioners initially served their petition on respondent on April 26, 1990. The petition, however, was not verified in compliance with the Commissioner's regulations. By letter dated May 4, 1990, my Office of Counsel notified petitioners of the defect and informed them that if they served a corrected petition within two weeks of the date of the letter, the petition would be considered to have been filed on the date it was initially served on respondent. Petitioners filed their corrected petition within the two week period, on May 12, 1990, and therefore, the appeal may be treated as having been commenced on April 26, 1990. However, because the appeal was commenced more than thirty days after March 1, 1990 -- the date of the most recent board action affecting petitioner's property -- and petitioners have failed to explain their delay in commencing this appeal, the appeal must be dismissed as untimely.

This appeal must also be dismissed on the merits. A board of education may consider the educational interests of the children involved, the effect on tax revenues and the educational programs of the school district from which the property would be transferred in deciding whether to grant an application for alteration of a boundary (Matter of Salerni, 27 Ed Dept Rep 393, decision aff'd subnomSchuylerville CSD v. Commissioner of Education, et al., 152 AD2d 241; Matter or Imbrosciano; 28 Ed Dept Rep 563; Appeal of Shenendehowa Central School District and Philip G. Thibodeau and Patricia A. Thibodeau, 29 Ed Dept Rep 355, decision aff'd Shenendehowa Central School District and Philip G. Thibodeau and Patricia A. Thibodeau v. Sobol, et al., Supreme Court, Albany County, November 14, 1990, Harris, J., n.o.r.). I am satisfied that the two districts involved in this appeal have made a reasonable decision based on appropriate criteria and that the educational interests of the children will best be served by an alteration of the tax map rather than by transfers of presently enrolled children and adjustment of tax revenues. In addition, the history of the present enrollment and taxing pattern and geographical and community considerations weigh in favor of this boundary alteration. In view of all of these factors, the proposed change appears to be in the long-term educational interests of residents of the areas affected.

For all these reasons, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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