* Subsequent History: Matter of City of Albany v Mills; Supreme Court, Albany County, Special Term (Connor, J.); Judgment dismissed petition to review; July 19, 2004. *

Appeal of THE CITY OF ALBANY and THE PLANNING BOARD OF THE CITY OF ALBANY from action of the Board of Education of the City School District of the City of Albany regarding the proposed construction of a new middle school.

Decision No. 14,961

(September 22, 2003)

Nixon Peabody LLP, attorneys for petitioners, Ruth E. Leistensnider, Esq., of counsel

Girvin & Ferlazzo, PC, attorneys for respondent, Jeffrey D. Honeywell, Christopher P. Langlois, and Kathy A. Wolverton, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Albany (“respondent”) to place a proposition on the ballot at the June 3, 2003 annual election authorizing the construction of a new middle school at Kelton Court (“Kelton”). 

Respondent issued a district-wide development plan in January 1999.  It included extensive renovations of existing elementary and middle schools and the addition of a third middle school.  A number of alternative sites for the new middle school were considered by respondent, including the Kelton site.  At that time the Kelton site was not selected due to the presence of four acres of wetlands subject to the jurisdiction of the United States Army Corps of Engineers (“Army Corps”) on the site and the lack of support from residents and the City. 

Respondent ultimately selected a site for the new middle school that included a portion of a city park, Westland Hills, and other private property.  The State Education Department (“SED”) acted as lead agency under the State Environmental Quality Review Act (“SEQRA”) for all projects within respondent’s development plan, including the Westland Hills site. 

On October 25, 2001 SED issued a written findings statement and approved the middle school project under SEQRA.  District voters approved the project on December 11, 2001.  Respondent subsequently decided not to build on the Westland Hills site when it determined that various federal laws would require additional review and approval of the proposed project by the Secretary of the Interior.  Respondent decided to reconsider proposed middle school sites it had previously rejected.  

In the meantime, the Army Corps had determined that only .24 acres of wetlands on the Kelton site were subject to its jurisdiction.  Moreover, the owners of the Kelton site had received permission from petitioner Planning Board to develop a 70-lot residential subdivision on the site.  Respondent anticipated that area residents might express less opposition to the proposed middle school construction when faced with the residential development alternative. 

Respondent decided to conduct an environmental review of the Kelton site and, by resolution adopted on February 4, 2003, designated itself lead agency under SEQRA.  Copies of all documents concerning the environmental review were sent to the Mayor of the City of Albany.  Respondent did not provide separate copies to petitioner Planning Board.

By resolution adopted on February 13, 2003, respondent accepted a Draft Environmental Impact Statement (“DEIS”).  Respondent held a public hearing under SEQRA on March 3, 2003.  By letter dated March 16, 2003, and within the public comment period, petitioners submitted comments on the DEIS and identified several alleged inadequacies.  Respondent prepared the Final Environmental Impact Statement (“FEIS”) and, by resolution dated March 20, 2003, adopted it. 

By resolution dated April 1, 2003, respondent approved a written findings statement for the project.  Respondent also approved a resolution to place a proposition on the May 20, 2003 ballot seeking authorization to acquire the Kelton site and issue bonds to finance the land acquisition and construction of the project.

By resolution dated April 1, 2003, respondent also directed its interim superintendent to submit the proposed designation of the Kelton site to petitioner Planning Board for a recommendation as required by Education Law §2512(6).   The proposal was submitted on April 2, 2003.  By letter dated April 24, 2003 petitioner Planning Board notified respondent that it “disapproved” the proposed designation, although Education Law §2512(6) only authorizes a recommendation.

Petitioners commenced this appeal on May 1, 2003.  Their request for interim relief was denied on May 9, 2003.

In early May 2003, the State Legislature enacted legislation moving the date of the annual school district meeting from May 20, 2003 to June 3, 2003.  In response to this action, respondent adopted a resolution on May 6, 2003 to move the date of its budget vote and the referendum on the proposed middle school to June 3, 2003.  At the May 6 meeting, respondent also adopted a resolution scheduling a public hearing for June 2, 2003, to address petitioner Planning Board’s “disapproval” of the middle school project. 

The public hearing was held on June 2, and at the conclusion of the meeting, respondent voted unanimously to approve the Kelton site, notwithstanding the Planning Board’s negative recommendation.  On June 3, 2003, the voters approved purchase of the Kelton site by a margin of 2,005 votes.

Petitioners initially alleged that respondent’s resolution placing the Kelton proposal on the ballot was void because respondent had not then complied with Education Law §2512(6) and therefore the referendum should not take place.  Petitioners also claim that respondent failed to comply with SEQRA in its review of the Kelton site, thereby voiding the resolutions adopting a findings statement and placing the proposal on the ballot. 

Respondent alleges that it complied with Education Law §2512(6) after this appeal was commenced.  Respondent also claims that a hearing and vote by the Planning Board pursuant to §2512(6) was not necessary before it resolved to put the matter to the voters because no “designation” of the Kelton site had occurred.  Respondent further contends that it complied with all aspects of SEQRA and that, in any event, the Commissioner does not have jurisdiction over the SEQRA claims.  Additionally, respondent maintains that petitioner Planning Board does not have capacity to bring this appeal, and that petitioner City does not have standing. 

The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of D’Orazio, 41 Ed Dept Rep 292, Decision No. 14,689; Appeal of Avnet, 41 id. 223, Decision No. 14,669; Appeal of Diane M., 39 id. 709, Decision No. 14,356).    Subsequent to the commencement of this appeal, but prior to the referendum, respondent held a public hearing on June 2, 2003 concerning petitioner Planning Board’s negative recommendation on the site.  At the conclusion of the public hearing, respondent voted unanimously to approve the Kelton site, notwithstanding petitioner Planning Board’s recommendation. Therefore, respondent fully complied with the public hearing and voting requirements of Education Law §2512(6).  Accordingly, petitioners’ claim of noncompliance with Education Law §2512(6) is moot.

Petitioners also allege numerous violations of SEQRA.  However, I will not entertain these claims for two reasons.  First, petitioners’ claim that respondent failed to treat petitioner Planning Board as an involved agency under SEQRA has been resolved by the Department of Environmental Conservation, which determined that petitioner Planning Board is not an involved agency under SEQRA.  Second, it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by SED staff, including review of construction projects under SEQRA (Appeal of Sheppard, 40 Ed Dept Rep 666, Decision No. 14,579; Appeal of Karpen, 40 id. 199, Decision No. 14,460). SED acted as the lead agency for the original SEQRA review of respondent’s 1999 development plan. Petitioners’ SEQRA claims include allegations that alternatives to the Kelton site were not given sufficient consideration and assertions that the cumulative impacts of the development plan, including the construction, renovation and expansion of other school buildings, were not adequately assessed.  Addressing these claims would necessarily involve reviewing the work of SED staff who conducted the initial environmental review of the projects in the plan.  Moreover, pursuant to Education Law §408, SED staff will continue to review respondent’s facilities plan and will assess respondent’s SEQRA compliance, among other things, in determining whether to issue permits for the proposed construction and renovation projects.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE