Decision No. 13,473

(August 29, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the decision of the Board of Education of the Baldwin Union Free School District ("respondent") to demolish a school playground. The appeal must be dismissed.

Petitioner is an unincorporated association of parents interested in maintaining a playground facility located at respondent's Plaza Elementary School. The facility was constructed in 1983 by residents of respondent's district with volunteer labor and funds. In November 1994, respondent's head custodian determined that the playground was in an unsafe condition and recommended to the principal that it be closed and dismantled. On November 28, 1994, respondent's principal notified parents, students and staff that a recommendation was made to tear down the playground. On December 7, 1994, respondent's assistant superintendent formally recommended to the board and superintendent that the playground be dismantled and public discussion on the matter ensued at the board meeting on December 14, 1995.

At that meeting, respondent tabled the resolution concerning the playground to allow time for parents to inspect the facility. Petitioner and respondent conducted architectural reviews with differing results. On February 8, 1995, respondent voted to dismantle the existing playground due to safety and health concerns. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of the appeal was denied on February 21, 1995. The playground was dismantled on February 22 and 23, 1995.

Petitioner alleges that the playground facility is a valuable asset to the community that should be repaired and not torn down. Respondent raises two procedural objections, including standing and mootness. Respondent contends that its decision concerning the playground was neither arbitrary, capricious nor unreasonable and should not be set aside.

Before reaching the merits, I will address the procedural issues raised by respondent. It contends that petitioner lacks standing to bring an appeal before the Commissioner of Education since it is an unincorporated association. This appeal was brought by the Plaza School Playground Committee and the petition was verified by an individual who identified himself as co-chairperson of the organization. An unincorporated association, such as the committee, lacks standing to maintain an appeal to the Commissioner of Education (Appeal of PS 7/IS 171 Environmental Improvement Committee, 34 Ed Dept Rep 297; Appeal of NAACP, et al., 30 id. 187; Appeal of Luther H., 30 id. 233). In addition, an individual representative of an unincorporated association does not have standing to maintain an appeal pursuant to Education Law '310 (Appeal of Mezzapelle, 33 Ed Dept Rep 490). Therefore, the appeal must be dismissed for lack of standing.

In addition, the record indicates that the playground facility in dispute has already been torn down. Because the Commissioner of Education will only decide matters in actual controversy, and will not render a decision concerning a dispute which subsequent events have laid to rest, the appeal must be dismissed as moot (Appeal of Brown, 34 Ed Dept Rep 33; Appeal of Paye, 33 id. 241; Appeal of Vachon, 28 id. 276).

In view of the foregoing disposition, it is not necessary to reach the merits of petitioner's claim. However, because of the controversy generated in the community by respondent's decision, I am compelled to comment. Although parents were generally unhappy about the dismantling of the playground facility, the record indicates that respondent had legitimate reasons to tear it down. Respondent indicates that the playground could not be repaired in a way that addressed and corrected safety concerns. The structure did not comply with Consumer Product Safety Commission guidelines for public playgrounds and clearly posed a safety risk. Respondent had several claims asserted against its insurance carrier for injuries incurred on the structure. Based on this record, respondent did not act in an arbitrary, capricious or unreasonable manner in deciding to dismantle the playground.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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