Appeals of SHERRY ANDREWS, JOHN ARCHDEACON, ALVIN AYRES, GERTRUDE AYRES, JENIFER BARSE, HAROLD BEISMER, CAROL A. BENNETT, GORDON M. BIRDSALL, JR., PAULINE BOGARDUS, PATRICIA BOOKHOUT, ELAINE B. BRADISH, JERI Y. BRAYMAN, LYNN E. BRAYMAN, NEIL E. BRAYMAN, ROBERT BUCHANAN, LAURIE BURPOE, GERALD L. BYRNES, JULIANA M. BYRNES, MICHAEL F. BYRNES, CYNTHIA M. CAREY, KELA CHARLES, NANCY J. CHARLES, JONATHAN L. CLEVELAND, CYNTHIA L. CONSTABLE, PENNY CONSTABLE, SARAH CUNNINGHAM, CHERYL L. CUTTING, KENNETH F. CUTTING, TINA DAVID, MARJORIE W. DEAN, MARK DELELLO, SUSAN K. DELELLO, RICHARD L. DIESCHER, SALLY DIESCHER, BARBARA DUMOND, CRAIG DUMOND, JESSICA FARRELL, BARBARA FOSTER, ROBERT J. FOSTER, BRIDGET GASCON, JOANNE G. GASCON, KIMBERLY C. GASCON, MICHELE L. GASCON, THOMAS E. GASCON, JR., THOMAS E. GASCON, DUANE GIFFORD, CHRISTINE GRAY, BARBARA J. GROAT, RICHARD GROAT, JEANIE HARP, DOROTHY S. HATHAWAY, ELLEN D. HOWARD, WILLIAM A. HUNT SR., JUDY JACKSON, ROBERT JACKSON, DONALD JUMP, NORMAN JUMP, NICOLE KROM, WAYNE KROM, CHRISTINA KRUGER, KENNETH M. LENT, PATRICIA K. LENT, RONALD LONGWELL, JOYCE MILLER, WAYNE MILLER, ONDRIA NORTHROP, CATHERINE OLIVER, JOHN E. PALMER, MIRIAM PALMER, RALPH E. PECK, VILETTA S. PECK, MARLENE RAASTAD, VAUGHN RAMAGE, TROY P. RAMAGE, WARREN ROGERS, WINIFRED D. ROOF, JEFFREY M. RUDE, KATHLEEN RYAN, KEN RYAN, FAY A. SAWDY, HEATHER SCHWARTZ, KENNETH SCHWARTZ, ANNE SCOTT, CLIFFORD H. SCOTT, HAROLD SCOTT, JENNIFER SCOTT, JOLENE SCOTT, KEITH A. SCOTT, MICHELLE L. SEARLES, JONATHAN R. SEELEY, RENEE SPATAFORA, JONATHAN SWAIN, CHRISTINA R. SWITKOWSKI, JOYCE M. TERRY, STEPHEN A. TISKA, MARY TOMEO, TEDDY W. TRIPP, JENNIFER VANPELT-GIFFORD, LESLIE VAN VALKENBURGH, PAMELA WALKER, TAMMY WARNER, IRENE M. WEST, LISA WRIGHT and LETTIE YACOS from action of the Sidney Central School District regarding school closings.

Decision No. 15,312

(October 13, 2005)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--In 104 separate appeals, petitioners challenge the decision of the Board of Education of the Sidney Central School District ("respondent") to close two of its three elementary schools. Because the appeals raise similar claims and issues of law, they are consolidated for decision. The appeals must be dismissed.

In the fall of 2003, respondent decided to form a study group to collect data on the use of district facilities. Shortly thereafter, a District Data Collection Committee ("committee") was created. After numerous meetings and reports, the committee presented its final report to respondent at its December 2, 2004 board meeting. The committee's report offered several possibilities for restructuring the district's schools by either keeping all three of the elementary schools open or by closing one elementary school. The committee report stated that it did not consider the closure of two elementary schools to be a viable solution because it would overcrowd the remaining elementary school for a few years.

On March 1, 2005, a public hearing was held on the possible school closings. On that same date, respondent voted to close two of its three elementary schools and consolidate all elementary students into the remaining elementary school building, effective June 30, 2005. These appeals ensued. Petitioners' requests for interim relief were denied on April 7, 2005.

Petitioners argue that respondent failed to comply with the school closing procedures set forth in Education Law �402-a by failing to conspicuously post notice of the proposed closures and by failing to circulate notice of the proposed closures to elected State and local public officials who represent the affected communities. Petitioners contend that respondent's decision was arbitrary, capricious and without a reasonable basis in that respondent allegedly failed to consider objections from the community, did not conduct a thorough census to evaluate the need for the school closures, did not consider a Cornell University study on school issues and approved building expansion and rehabilitative projects on the closed school buildings within the last three years.

Several petitioners also argue that respondent failed to comply with the State Environmental Quality Review Act ("SEQRA") (6 NYCRR Part 617) by failing to evaluate the environmental impact of the closings and by failing to compensate the affected communities for their losses. Petitioners request that I reverse the decision, order an audit by the Office of the State Comptroller and a State Environmental Quality Review.

Respondent contends that the school closing procedures articulated in Education Law �402-a are optional. Respondent further maintains that its decision to close the schools was made after careful consideration and study had shown that significant cost savings could be achieved without negatively impacting the quality of its educational program. Respondent also contends that a school closing is a Type II action under SEQRA, which does not require an environmental impact statement or compliance with other SEQRA procedures.

Initially, I must address two procedural issues. Petitioners' replies contain additional allegations and exhibits that should have been submitted with the petitions. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answers.

Two petitioners also submitted additional documents rearguing points raised in the petitions and raising new issues that were not included in the petitions. 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).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in his appeal (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). Furthermore, there is no evidence that one of these petitioners, Richard L. Diescher, served his submissions on respondent (8 NYCRR ��275.3 and 275.8). Therefore, I have not considered these submissions in rendering this decision.

Certain petitioners claim that the school closures are subject to environmental review pursuant to SEQRA. The regulations of the New York State Department of Environmental Conservation state that certain actions, including school closings, are not subject to SEQRA review (6 NYCRR �617.5[c][8]). However, changes in the use of the closed buildings in the future may trigger a need for such review (see 6 NYCRR �617.5[c][8]). The record indicates that, while the subcommittees proposed a number of possible uses for the buildings, respondent has not yet made a decision as to their future use. To the extent that respondent has only decided to close the buildings, the SEQRA claims must be dismissed because it is not an event that requires an environmental review. To the extent that any future decision by respondent regarding the use of the buildings may trigger a SEQRA review, the SEQRA claims must be dismissed as premature.

Decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194). Pursuant to Education Law �1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein. In such cases, a board's discretion is broad (Matter of Older, et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194). Accordingly, a board's decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

Petitioners contend that respondent should have followed the procedures of Education Law �402-a before deciding to close the school buildings. Section 402-a authorizes and recommends a board to establish an "advisory committee on school building utilization to investigate the educational impact of such a closing" (Education Law �402-a[1]; Appeal of Patashnick, 39 Ed Dept Rep 236, Decision No. 14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594). The decision to establish an advisory committee rests solely with the board (seeAppeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594). When such a committee is established, the statute requires a consideration of certain factors, notice and a public hearing (Education Law �402-a, Appeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594). However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (seeAppeal of Seligman, et al., 31 id. 131, Decision No. 12,594).

In this case, it is not clear that respondent intended to establish a �402-a committee. It appears that respondent requested advice from its attorney about the need for a public hearing. By letter dated February 11, 2005, respondent's attorney advised the district that the �402-a process was optional and that respondent did not need to use it. There is no evidence that, at any point prior to that letter, respondent had decided to form a committee based on the statute. The fact that the committee collected data that must be examined under �402-a does not necessarily imply that it was formed pursuant to the statute. Indeed, examination of these factors outlined in �402-a would generally be part of any decision to close a school building, regardless of whether a committee is used. Based on the record before me, I cannot conclude that respondent affirmatively chose to form a �402-a committee and was therefore required to follow the specific steps outlined therein.

Even assuming that respondent had formed such a committee, the committee it formed substantially complied with the provisions of the statute. The committee had five subcommittees: Finance, Facilities/Community Impact, Logistics, Instruction and Demographics. The subcommittees reviewed the factors listed in subdivision 2 of �402-a. Each subcommittee generated a report that examined these factors, including enrollment trends, class size, possible use of facilities and the community impact of closing schools. Respondent's administrators used information from the reports to prepare a District Facilities Report, which was provided to respondent.

Petitioners contend that respondent did not completely comply with �402-a(3) by failing to publicly post notice of the proposed closings and notify state and local officials who represent the affected communities. Petitioners submitted an affidavit from a town council member who states that he was not so notified.

It appears from the record that respondent did not conspicuously post notice of the proposed closings and failed to circulate notice of such proposed closings to certain public officials. However, the school closings were the subject of a lengthy and open public debate. Respondent submitted evidence of nearly a year and a half of information gathering, reports and public meetings that were conducted before it made its decision. Respondent requested volunteers from the community to serve on the subcommittees. Respondent also provided evidence that it placed notices in local newspapers regarding the committee report presentation and its own facilities report. There is evidence that members of the public expressed their concerns regarding the school closings in writing to respondent and at respondent's March 15, 2005 meeting.

The legislative history of �402-a indicates that the statute is intended to encourage community participation in decisions to close school buildings. None of the petitioners or any public officials assert that they were unaware that the school closings were under consideration or were denied the opportunity to comment. Even if �402-a applied, under the facts and circumstances of this case, I would find the notice omissions to be deminimis and would not overturn respondent's decision for lack of notice.

With regard to the merits of respondent's decision, I cannot conclude that respondent's decision lacks a rational basis. The District Facilities Report projected an initial savings of $590,000 by closing the two elementary schools, with continuing savings each year thereafter. The savings were the result of a number of factors, including reduced transportation costs, utilities, travel costs for district couriers and food service and personnel savings.

Respondent also reviewed information related to the costs of recent school renovation projects and declining enrollment numbers. Enrollment trends for the district forecast a significant decline in student population. Recent renovations increased the size of the single remaining elementary school so that class sizes will continue to be reasonable. Respondent states that for the 2005-2006 school year, class sizes will average 22 students per class for grades 3, 4 and 5, 19 students per class for grade 2, and 17 students per class for kindergarten and first grade. Based on the information presented, respondent determined that closing the two schools would result in substantial cost savings and efficiency without any cuts to educational programs and chose not to adopt the committee's recommendation. On the record before me, I cannot find this decision to be irrational or contrary to sound educational policy.

Although I understand that school closings are difficult for any community, a board of education is charged with making those difficult decisions. Since I find that respondent properly exercised its discretion, the appeals must be dismissed.

THE APPEALS ARE DISMISSED.

END OF FILE

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