* Subsequent History: Matter of Sharp v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; June 9, 2006. *

Appeal of WILLIAM and CLAUDIA GEIER, on behalf of their daughter ELLEN, from action of the Board of Education of the West Islip Union Free School District and the Board of Education of the Bay Shore Union Free School District regarding a school district boundary.

Appeal of MEDELEINE SHARP, on behalf of her children JACQUELINE, KRYSTINA, JAMIE and FRANCIS, from action of the Board of Education of the West Islip Union Free School District and the Board of Education of the Bay Shore Union Free School District regarding a school district boundary.

Decision No. 15,309

(September 22, 2005)

Kevin A. Seaman, Esq., attorney for petitioners William and Claudia Geier

Guercio & Guercio, attorneys for respondent Board of Education of the West Islip Union Free School District, Christine M. LaPlace, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent Board of Education of the Bay Shore Union Free School District, Jonathan Heidelberger, Esq., of counsel

MILLS, Commissioner.--Petitioners William and Claudia Geier (“the Geiers”) and petitioner Madeleine Sharp (“Ms. Sharp”) (collectively  “petitioners”) appeal the determinations of the Board of Education of the West Islip Union Free School District (“West Islip”) that their children are not entitled to attend the West Islip schools tuition-free because their residences are entirely within the Bay Shore Union Free School District (“Bay Shore”).  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

It is uncontested that the school district boundary in dispute is a waterway once known as West Thompson’s Brook, and now known as Trues Creek.  Evidently, there has been much discussion and prior litigation regarding property boundaries along Trues Creek involving other property owners.  The Geiers, along with neighbors living on the same street, were apparently involved in discussions with Bay Shore, and possibly West Islip, in the early 1990s in an effort to change the school district boundary line so that the Geiers and their like-situated neighbors could choose either West Islip or Bay Shore as the district of attendance for their children.  Bay Shore, by letter dated October 27, 1993, notified the Geiers and their neighbors that the school district boundary line would not be changed.  It does not appear that Ms. Sharp received a copy of this letter.

The Geiers, maintain that Trues Creek bisects their property and have used the provisions of Education Law §3203 to select which school district their children attend.  Their daughter Ellen has attended West Islip schools since September 1996. The Sharp children have attended West Islip schools since 1993. 

According to West Islip, in or about December 2002, its administrators became aware that a number of properties along Trues Creek, including petitioners’, were listed with the Town of Islip’s Office of the Assessor as being within Bay Shore.  After an investigation, West Islip determined that both properties were located entirely within Bay Shore.  In January of 2003, West Islip began notifying these property owners that there was a question as to the residency status of their children.

By letter dated January 31, 2003, West Islip notified Ms. Sharp that it had determined that her children were not residents of the district.  By letter dated February 13, 2003, Ms. Sharp’s attorney attempted to convince West Islip that the Sharp children were entitled to attend its schools.  By letter dated February 24, 2003, Ms. Sharp and her husband notified West Islip and Bay Shore that they were designating West Islip as their district of attendance pursuant to Education Law §3203.  By letter of the same date, West Islip notified Ms. Sharp that her children would be allowed to continue in school while the district investigated the matter further.  By letter dated March 4, 2003, Bay Shore notified the Sharps that their property was located entirely within Bay Shore and, therefore, the Sharps could not designate West Islip pursuant to the statute.  The letter states that Bay Shore was ready to enroll the Sharp children in its schools.

By letter dated September 4, 2003, West Islip notified Ms. Sharp that it had made a residency determination pursuant to §100.2(y) of the Commissioner’s regulations that her children were not district residents and that they were being excluded from West Islip’s schools effective September 12, 2003.  In September 2003, Ms. Sharp commenced an action in Supreme Court, Suffolk County to compel West Islip to admit her children.  By letter dated October 3, 2003, West Islip was notified by the Assessor for the Town of West Islip that the Assessor’s Office had determined that the Sharp property was located in both districts, that Mr. Sharp had designated West Islip as the school district of attendance for the Sharp children and that the tax code was being changed so that property taxes on the Sharp residence would go to West Islip. 

The record indicates that the Geiers corresponded with West Islip in the spring of 2003 about their history of designating West Islip and provided information to support their position that Trues Creek bisects their property.  In July 2003, the Geiers notified both districts that they were again designating West Islip as their district of attendance for the 2003-2004 school year.  By letter dated July 31, 2003, Bay Shore rejected that designation stating that the Geiers’ residence was within Bay Shore’s boundaries. 

In October 2003, the Geiers, other neighbors residing along Trues Creek, Bay Shore and the West Islip Tax Assessor were joined as parties to Ms. Sharp’s Supreme Court action.  The Sharp children were allowed to attend West Islip schools during the 2003-2004 school year pursuant to a stay issued by the court.

By letter dated June 15, 2004, West Islip notified the Geiers that there would be a residency determination pursuant to §100.2(y) of the Commissioner’s regulations.  By letter dated July 15 2004, West Islip notified the Geiers that, absent a decision by the court, they were not district residents and Ellen would not be allowed to attend West Islip schools in September 2004. 

By decision dated August 4, 2004, the Supreme Court, Suffolk County held that it did not have jurisdiction over Ms. Sharp’s claims and “transferred” the case to the Commissioner of Education.  In September 2004, Ms. Sharp appealed the court’s decision to the Appellate Division, Second Department.  The court issued a stay enjoining West Islip from removing the Sharp children from its schools until resolution of the appeal. The Geiers were not included in that action. 

In the interim, by letter dated July 29, 2004, the Geiers notified West Islip that they were in the process of purchasing a piece of property within West Islip.  West Islip notified the Geiers that until they were able to demonstrate ownership of the property, they should plan to register Ellen in Bay Shore.   The Geiers and West Islip reached an agreement whereby Ellen could attend the West Islip schools for the first semester of the 2004-2005 school year as a tuition-paying non-resident student while the Geiers pursued their purchase.  On November 7, 2004, the Geiers purchased a small parcel of land on the opposite side of Trues Creek from their property.  By letter dated December 6, 2004, West Islip demanded reimbursement of tuition for educating Ellen in its schools from September 1996 through June 2004 in the amount of $33,195.36.  By letter dated January 24, 2005, West Islip further notified the Geiers that in order to demonstrate full legal ownership of the West Islip property, they needed to obtain subdivision approval from the Town of West Islip for that purchase and a certification from their surveyor that the property is within West Islip.  The letter provided the Geiers with information on obtaining that approval and permitted Ellen to continue attendance as a non-resident student upon payment of tuition for the remainder of the 2004-2005 school year.

These appeals ensued.  Ms. Sharp’s request for interim relief was denied on November 15, 2004.  The Geiers’ request for interim relief was denied on February 16, 2005.  The Geiers requested a reconsideration of their request for interim relief, which was denied on March 7, 2005. 

By decision dated August 31, 2005, the Appellate Division dismissed Ms. Sharp’s appeal and lifted the stay.  Thereafter, Ms. Sharp requested a reconsideration of her request for interim relief, which was denied on September 13, 2005.

Petitioners claim that Trues Creek, and therefore the school district boundary between West Islip and Bay Shore, has bisected their properties at all times during their ownership and that they have been entitled by Education Law §3203 to choose which school district their children attend without payment of tuition.

The Geiers further contend that West Islip had no authority to require them to pay tuition for Ellen for the 2004-2005 school year and request that I order West Islip to refund that money.  The Geiers also contend that West Islip’s request for subdivision approval is improper and assert that West Islip failed to comply with the Commissioner’s regulations pertaining to residency determinations.  The Geiers request a determination that Ellen be allowed to continue her education in West Islip as a non-tuition-paying district resident until the end of the 2004-2005 school year and state that Ellen will be enrolling in a private school as of September 2005.  

West Islip asserts that its determinations that petitioners are not district residents were not arbitrary or capricious.  West Islip contends that petitioners are not eligible to designate West Islip as the school district of attendance pursuant to Education Law §3203 because petitioners’ properties are located entirely within Bay Shore.  West Islip also asserts that the petitions are untimely.

West Islip further argues that the Geiers have not established complete legal ownership of the parcel of land they recently purchased within West Islip.  West Islip also asserts that the Geiers received the required notice pertaining to the residency determination.  West Islip requests that Bay Shore be ordered to pay West Islip the tax monies collected for petitioners’ properties for the years that West Islip educated their children and that I order payment of future tax monies to the appropriate district. 

Bay Shore asserts that petitioners’ properties, without the additional parcel the Geiers purchased, are and have always been located entirely within its district since the formation of the two districts in 1914.  Bay Shore argues that the principles of law related to accretion and avulsion of land adjacent to watercourses dictates that any movement in petitioners’ boundary lines due to the natural movement of Trues Creek also resulted in the corresponding movement of the school districts’ boundary.  Bay Shore further contends that if the petitioners retained property on the west side of Trues Creek because other “process(es)” moved the creek, then Bay Shore similarly retained that property within its district.  Bay Shore asserts that its determination that the petitioners are residents of its district is rational and based upon substantial evidence in accordance with applicable law, and that it is ready to enroll petitioners’ children in its schools on a tuition-free basis. 

Bay Shore further alleges that I do not have the authority to order it to pay taxes previously collected from the Geiers to West Islip.  Bay Shore argues that if I determine that West Islip was not entitled to exclude petitioners’ children, such determination was not because petitioners’ property is bisected by the school district boundary nor because of any action or inaction on its part.  Bay Shore requests a determination that it is only obligated to turn over to West Islip taxes received on the Geiers’ property which cover those portions of the school years since their acquisition of property within West Islip provided that the Geiers provide sufficient proof of such acquisition and West Islip demands such payment.  Bay Shore also argues that the West Islip Tax Assessor did not have authority to unilaterally change the tax designation of the Sharp property.

Pursuant to §275.1 of the Commissioner’s regulations, I directed petitioners to join Bay Shore as a party to the appeals.  In doing so, the Geiers not only amended their petition by adding Bay Shore as a party, they also added additional arguments and exhibits that should have been included with their original petition.  Additional pleadings may only be submitted with the prior permission of the Commissioner (8 NYCRR §275.3).  The Geiers did not request such permission and, therefore, I have not considered the additional arguments or exhibits. 

In August and September 2005, Ms. Sharp submitted numerous letters and exhibits raising issues that should have been raised in her petition and rearguing points previously raised.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086).  Ms. Sharp did not request permission to submit these papers, nor did she serve all of the submissions on both districts (8 NYCRR §§275.3[b] and 275.8).  To the extent that Ms. Sharp reargues the points made in her petition and adds arguments and exhibits that should have been included in her petition, I have not considered her submissions.

West Islip contends that the Geiers’ appeal is untimely because it was commenced more than 30 days from the July 14, 2004 letter notifying them that Ellen would be excluded from its schools.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Geiers’ appeal was commenced on January 28, 2005, within 30 days of West Islip’s January 24, 2005 letter to the Geiers notifying them that they had to take additional steps before West Islip would recognize their purchase of property within its district and consider them district residents. Therefore, I decline to dismiss the Geiers’ appeal as untimely.

Ms. Sharp’s appeal, however, must be dismissed as untimely.  Ms. Sharp commenced her appeal on November 1, 2004, more than a full year after West Islip’s September 4, 2003 letter notifying her of its decision to exclude her children from its schools.  An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of R.W., 40 Ed Dept Rep 671, Decision No. 14,580; Appeal of Goltz, 40 id. 623, Decision No. 14,571).

In this case, I find that Ms. Sharp did not commence her appeal within a reasonable time after her Supreme Court proceeding was dismissed.  Preliminarily, I note that no legal procedure exists which authorizes the Supreme Court to "transfer" an Article 78 proceeding to the Commissioner of Education. However, even if the court order initially left Ms. Sharp with the mistaken impression that the matter had been automatically "transferred," Ms. Sharp’s attorney was advised by my Office of Counsel in a letter dated September 17, 2004 that he would need to comply with the procedures set forth in Parts 275 and 276 of the Commissioner’s regulations in order to commence an appeal. Despite this letter, Ms. Sharp’s attorney merely forwarded the court papers and failed to comply with any of the cited regulations.  By letter dated September 30, 2004, my Office of Counsel again notified Ms. Sharp’s attorney of the deficiencies.  An adequate petition was not served until November 1, 2004, almost 90 days after the dismissal of the court proceeding. 

While I have afforded some latitude in procedural matters to petitioners who are not represented by counsel (see Appeal of Goltz, 40 Ed Dept Rep 623, Decision No. 14,571; Appeal of Miller, 39 id. 348, Decision No. 14,256), Ms. Sharp was represented by an attorney at the time of the commencement of her appeal.  I have repeatedly held that, absent unusual circumstances, ignorance of the appeals process does not establish good cause for delay (Appeal of Goltz, 40 Ed Dept Rep 623, Decision No. 14,571; Appeal of Tomassetti, 39 id. 513, Decision No. 14,296; Appeal of Amara S., 39 id. 90, Decision No. 14,182).  Accordingly, I find no unusual circumstances present here to excuse Ms. Sharp’s delay and her appeal must be dismissed as untimely.

To the extent that the Geiers request that their daughter be allowed to continue her education until the end of the 2004-2005 school year at West Islip, the appeal is moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  The 2004-2005 school year is over and the Geiers indicated that Ellen would enroll in private school in September 2005.

Even if the appeals were not dismissed on procedural grounds, they would be dismissed on the merits.  Education Law §3203(1) provides in pertinent part:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation . . . and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

To effect a valid designation under Education Law §3203(1), petitioners must establish that "the boundary line between two school districts intersects" their property.  The size of the parcel is not determinative (Crowe, et al. v. MacFarland, et al., 138 AD2d 788; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 id. 15, Decision No. 14,597). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  As discussed more fully below, petitioners have not established that Trues Creek bisects their properties nor have the Geiers established that they have obtained full legal ownership of the property they purchased in West Islip. 

To the extent that petitioners claim that their properties have always been bisected by Trues Creek, the survey maps petitioners submitted do not clearly indicate the school districts’ boundary in relation to their individual property boundaries.  West Islip submitted maps dating back to the founding of the school districts in 1914 clearly indicating that the West Thompson’s Brook, now Trues Creek, is the boundary line between the two school districts.  West Islip also submitted a copy of an affidavit by John A. Robinson, a land surveyor licensed in the State of New York, which was executed for the Sharp court case, and survey maps of the entire area.  In his affidavit, Mr. Robinson states that he personally visited the area, reviewed prior survey maps dating back to 1914 and conducted a survey of his own.  He states that he located Trues Creek and that Trues Creek is also the boundary to a subdivision called “Gardiner Manor,” which was laid out pursuant to a survey map filed November 28, 1952.  Mr. Robinson states that it is his opinion that the Sharp property, which is Lot 200 of Gardiner Manor Section 2 according to the deed submitted by Ms. Sharp, is located entirely within Bay Shore. The Geiers’ property, according to the survey they submitted, is identified as part of lots 194, 195 and 196 of Gardiner Manor Section 2. 

Mr. Robinson’s affidavit further states that if Trues Creek moved over the years naturally, both the school district and Sharp boundaries moved with the creek. He observed evidence of a drainage channel having been constructed at the head of the Trues Creek in an attempt to lower the water table for the construction of homes.  Mr. Robinson states that, in his opinion, if Trues Creek was moved by man-made activities, both West Islip and Ms. Sharp retained the boundary lines set out as the original location of the creek in the original maps.  In his opinion, in either scenario, the property remains entirely within Bay Shore.

Mr. Robinson’s conclusions regarding boundaries delineated by a creek or stream are supported by case law (see Matter of Town of Hempstead v. Little, 22 NY2d 432).  One can also assume that Mr. Robinson’s reasoning and conclusions apply to that portion of the Geiers’ property that is bordered by Trues Creek.

West Islip also submitted maps and an affidavit by the Islip Town Surveyor executed in 1998 in relation to a similar situation involving another property owner and Trues Creek.  In that situation, the Town Surveyor opined that the waterway running through the property in question was not Trues Creek, but a drainage channel.  That property was laid out as part of a development called “Sagtikos Manor” in 1964.  West Islip contends that the same facts apply to the instant appeals because they are part of the same development but fails to establish the connection between Sagtikos Manor and Gardiner Manor. 

As to the Geiers’ acquisition of a piece of property within West Islip, Mr. Robinson confirmed with the Town of West Islip that the town must approve a subdivision of the property they purchased.  The Geiers do not provide any evidence to refute this information.  Therefore, I cannot conclude that West Islip’s decision to require them to provide proof of such approval was arbitrary or capricious (see Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128).

In sum, I find that the totality of evidence in the record supports the position of West Islip and Bay Shore concerning the boundaries.  Accordingly, I cannot conclude that West Islip’s determinations to exclude petitioners’ children were arbitrary or capricious.

With regard to the parties’ claims for tuition payments, the Commissioner of Education lacks authority to award money damages (Appeal of Upstate Home for Children, Inc., 43 Ed Dept Rep 505, Decision No. 15,067; Appeal of Sitaras, 43 id. 434, Decision No. 15,044; Appeal of Moore, 41 id. 436, Decision No. 14,738).  Moreover, in the context of residency appeals, the Commissioner of Education has historically declined to award a school district tuition for educating a non-resident student or to order a district to reimburse a petitioner for tuition paid on behalf of a resident student who was entitled to attend district schools (see Appeal of Baronti, 42 Ed Dept Rep 140, Decision No. 14,802; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613; Appeal of Zavesky, 40 id. 517, Decision No. 14,543).  Accordingly, to the extent petitioners and West Islip seek payment for tuition, that relief should be sought from a court of competent jurisdiction.

Finally, as to the decision of the West Islip Tax Assessor to unilaterally move the Sharp property to the West Islip tax roles, I note that it is the full responsibility of school authorities to ascertain whether particular real property is within school district boundaries (see Real Property Tax Law §1302[2]; Hudson Falls Cent. School Dist. v. Town of Moreau Assessor, 202 AD2d 716, lv denied 83 NY2d 760).  Moreover, Bay Shore asserts, and petitioners have not refuted, that the West Islip Tax Assessor has reversed this decision. 

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

THE APPEALS ARE DISMISSED.

END OF FILE