Appeal of the TOWN OF NEW WINDSOR from action of Robert Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties, regarding formation of a new school district.

 

Decision No. 14,915

 

(August 1, 2003)

 

Duggan, Crotty & Dunn, P.C., attorneys for petitioner, Philip A. Crotty, Esq., of counsel

 

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, John Donoghue, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision by Dr. Robert Hanna, District Superintendent of Schools for the Sole Supervisory District of Orange-Ulster Counties ("respondent"), to deny petitioner"s request to form a new school district.  The appeal must be dismissed.

Petitioner, the Town of New Windsor, is divided among four school districts.  In 1963, the developed part of the town was consolidated into the Newburgh Enlarged City School District ("Newburgh ECSD"), and the remainder of the town was divided among three other school districts.

Starting in 1975, petitioner began an initiative to deconsolidate the Newburgh ECSD and form a new school district for the town.  After many years of study and initiatives to improve petitioner"s sense of identity as a separate and distinct community, and an attempt at legislative change in 1978, petitioner"s residents in November 2002 approved an advisory referendum in favor of deconsolidating the portion of the town that was presently located within the Newburgh ECSD.  The record indicates that the proposed deconsolidation would involve four schools within petitioner"s municipal boundaries that are currently located in the Newburgh ECSD.  The record also indicates that approximately 20% of Newburgh ECSD"s students and 35% of its 2002-2003 tax levy are derived from petitioner, Town of New Windsor.

On November 7, 2002, petitioner"s attorney sent a letter to respondent, asking him to consider forming a new school district for the town, to be called the New Windsor Central School District.  The attorney advised respondent that the new district would be created out of the territory of the Newburgh ECSD, which was wholly within the geographic area served by respondent"s Board of Cooperative Educational Services.  Petitioner asserted that the educational interests of petitioner"s community required the formation of the new district.  The attorney advised that the specific procedures in Education Law "2218 could be used as a guide for this process, and that "2218 made reference to the "controlling section in our situation, Section 1504."

Respondent stated, in a reply letter dated December 11, 2002, that he did not have the authority under Education Law "1505 to create a new school district as requested by petitioner.  Petitioner"s attorney telephoned respondent, and also sent a letter dated December 19, 2002, asking respondent to look specifically at petitioner"s November 7, 2002 request regarding Education Law "1504.

By letter dated January 29, 2003, respondent again denied petitioner"s request to form a new school district.  Respondent stated that there were two problems with petitioner"s request under "1504.  First, petitioner town was not contained wholly within one school district.  Second, the Newburgh ECSD was neither a central school nor a union free school, so "1504 did not apply.  This appeal ensued.

Petitioner contends that respondent incorrectly relied upon subdivision (3) of "1504, rather than subdivision (1).  Petitioner asserts that respondent"s determination is contrary to "1504(1), and requests that I order respondent to take all necessary steps to form a new school district under the authority of "1504(1).  Respondent contends that he made a correct decision under the law, and also raises several procedural objections.  Respondent alleges that the petition must be dismissed because petitioner failed to name and serve the Newburgh ECSD as a necessary and indispensable party; that petitioner lacks standing to bring this appeal under Education Law ""1504 and 2218 because petitioner is not wholly contained within one school district; that the Commissioner has exclusive jurisdiction pursuant to Education Law "314 to consider the reorganization of an enlarged city school district; and that respondent does not have authority to deconsolidate an enlarged city school district, that was organized pursuant to Education Law "1524 or "1526, to establish a new school district.

I agree that the petition must be dismissed because petitioner has failed to name and serve a necessary party, the Newburgh ECSD.  A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lynch, 42 Ed Dept Rep ___, Decision No. 14,892; Appeal of Roff, 41 id. 346, Decision No. 14,708).  The Newburgh ECSD is unquestionably a necessary party, as a determination in petitioner"s favor could result in Newburgh losing four of its schools, approximately 20% of its students and approximately 35% of its annual tax levy.

Failure to join Newburgh ECSD as a party to this appeal requires dismissal of the appeal.  In view of this disposition, I need not address the remaining contentions raised by the parties.

 

THE APPEAL IS DISMISSED.

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