Decision No. 13,112

(February 22, 1994)

Edward M. Bartholomew, Jr., Esq., attorney for petitioners

SOBOL, Commissioner.--Petitioners appeal the determination of the District Superintendent of the Sole Supervisory District of Washington-Saratoga-Warren-Hamilton-Essex Counties ("respondent Carozza") that corrects a boundary between the Fort Edward Union Free School District ("petitioner Fort Edward board") and the Hudson Falls Central School District ("respondent Hudson Falls board"). The appeal must be dismissed.

In 1991, the owners of a 50 acre parcel located in the Village of Fort Edward applied for a school tax refund on the basis that their property did not fall within the boundary of petitioner Fort Edward. William McCarty, Director of Real Property Tax Service of Washington County, reviewed the application and investigated the matter. He determined that the parcel of vacant land ("Rourke/Dunn properties") had appeared on the tax rolls of respondent Hudson Falls board prior to 1974, but was inadvertently placed on the tax rolls of petitioner Fort Edward board in 1974 or 1975 and was identified as tax map no. 171.14-1-1. There are presently no school-aged children residing on the property. However, the land is apparently scheduled for development into a 100+ residential lot subdivision.

In 1974, a transfer of the parcel had been authorized from the Town of Fort Edward to the Village of Fort Edward. The minutes of the special meeting authorizing that transfer indicate that the property would remain in respondent Hudson Falls board's district. There is no documentation that a transfer of the property to petitioner Fort Edward board was intended or occurred.

On April 28, 1993, respondent Carozza, by virtue of his authority under Education Law '2215(1), held a hearing to determine the actual boundary of the property in question. On June 2, 1993, respondent Carozza determined that the property belonged within respondent Hudson Falls board's district. This appeal ensued. Petitioners' request for a stay, pending a final determination of the merits of the appeal, was denied on July 30, 1993.

Petitioners allege that no specific maps were produced by respondent Hudson Falls board at the hearing and that the tax maps relied upon by the Washington County Real Property Tax Director were not controlling. Petitioners also contend that the equities of this matter balance in their favor since respondent Hudson Falls board has not previously contested the inclusion of the Rourke/Dunn properties on petitioner Fort Edward board's tax rolls. Petitioners also allege that respondent Carozza should have conducted a proceeding under Education Law ''1507 and 1508 to determine the boundary.

Respondent Hudson Falls board contends that the appeal is untimely and fails to state a claim upon which relief may be granted. This respondent also contends that petitioners have failed to meet their burden of proof and argues that the petition was not verified and contains no notice of appearance. Respondent Carozza contends that the appeal is untimely and the petition contains no notice of appearance.

Before reaching the merits, I will first address the procedural issues. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16; Appeal of Johnson, 33 Ed Dept Rep 183; Appeal of Sima-Eichler, 31 id. 550). Both respondents claim that the appeal is untimely since the boundary determination was made on June 2, 1993 and that the appeal was not served upon the parties until July 6, 1993, 34 days from the date of the decision. Petitioners offer no excuse for the delay. The appeal must, therefore, be dismissed as untimely. I also note that the petition is procedurally defective, as respondents claim, because it is not verified and fails to contain a notice of appearance.

The appeal must also be dismissed on the merits. The record shows that the parcel in dispute was, prior to 1974, included on respondent Hudson Falls board's tax rolls. There is no evidence that the transfer to petitioner Fort Edward board's rolls was anything other than inadvertent. The record suggests that after the property was transferred from the Town of Fort Edward to the Village of Fort Edward, a municipal official incorrectly believed that the property was also changed from respondent Hudson Falls board to petitioner Fort Edward board. The fact that the property has been incorrectly assessed for approximately 19 years does not balance the equities in favor of petitioners, when the transfer was apparently in error.

Petitioners also argue that the district superintendent had no authority to determine the corrected boundary and should have held a hearing under Education Law ''1507 and 1508. I disagree. Those sections of law refer to the process for altering the boundary of a school district either with (Education Law '1507) or without the consent (Education Law '1508) of the trustees or board members of the districts involved. A hearing is then provided under Education Law '1509 to entertain objections to an order for alteration without consent. In this instance, however, no alteration of the school district boundary was made. The hearing held by respondent Carozza pursuant to his general authority under Education Law '2215(1) was instead to establish the location of boundaries that were in dispute (Board of Education of the Shenendehowa CSD v. Sobol, 182 AD2d 944; Appeal of Salerni and Appeal of the Board of Education of the Saratoga Springs Enlarged City School District, 27 Ed Dept Rep 393).

My review of respondent Carozza's actions indicate that he acted appropriately in this matter. A hearing, although not technically required, was provided to petitioners. Petitioners failed to present any evidence that demonstrated that the parcel in dispute belonged within its boundaries. Respondent Hudson Falls board presented a credible case concerning the erroneous transfer from its tax rolls to petitioner Fort Edward board's tax rolls. Respondent Carozza merely corrected this error. Petitioners' equitable argument that the property had been placed on its tax rolls since 1974 is not controlling, nor is petitioners' argument that the property should remain on petitioner Fort Edward board's tax rolls since it is otherwise serviced by the Town of Fort Edward. In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Zinkowski, 32 Ed Dept Rep 655; Appeal of Amoia, 28 id. 150). On the record before me, petitioners have failed to establish that respondent Carozza has acted arbitrarily or capriciously. I, therefore, find respondent Carozza's determination with regard to the disputed boundary appropriate.

THE APPEAL IS DISMISSED.

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