* Subsequent History: Matter of Andreou v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; April 30, 2008. *

Appeal of SPECTRUM COMMUNITIES, LLC, POCANTICO HOME & LAND COMPANY, LLC, C.B., J.B., C.K., M.S., P.S., F.D.C., L.C., L.A., J.B., R.B., B.S.L., A.S.L., A.M. and M.M. from action of Ronald L. Smalls, District Superintendent of the Second Supervisory District of Westchester County, regarding a school district boundary.

Appeal of BRUCE C. EDELSTEIN from action of Thomas C. Elliott, Superintendent of the Pocantico Hills Central School District, the Pocantico Hills Central School District, Howard Smith, Superintendent of the Union Free School District of the Tarrytowns, the Union Free School District of the Tarrytowns and Ronald L. Smalls, District Superintendent of the Second Supervisory District of Westchester County, regarding a school district boundary.

Appeal of SPECTRUM COMMUNITIES, LLC, POCANTICO HOME & LAND COMPANY, LLC, C.B., J.B., C.K., M.S., P.S., F.D.C., L.C., L.A., J.B., R.B., B.S.L., A.S.L., A.M. and M.M. from action of the Board of Education of the Pocantico Hills Central School District, the Pocantico Hills Central School District, Board of Education of the Union Free School District of the Tarrytowns and the Union Free School District of the Tarrytowns, regarding a school district boundary.

Decision No. 15,474

(October 5, 2006)

Thacher Proffitt & Wood, LLP, attorneys for petitioners Spectrum Communities, LLC and Pocantico Home & Land Company, LLC, Kevin J. Plunkett, Esq., of counsel

Morrison Cohen, LLP, attorneys for petitioners in the first and third appeals, Y. David Scharf, Esq., of counsel

Nobile, Magarian & DiSalvo, LLP, attorneys for petitioner Edelstein, Louis J. Maggiotto, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent Smalls, Daniel Petigrow, Esq., of counsel

Ingerman Smith, LLP, attorneys for the Pocantico Hills Central School District respondents, Neil M. Block, Esq., of counsel

Whiteman Osterman & Hanna, LLP, attorneys for the Union Free School District of the Tarrytowns respondents, Norma Meacham, Esq., of counsel

MILLS, Commissioner.--In the first two of these three related appeals, petitioners Spectrum Communities, LLC (n/k/a WCI Northeast U.S. Region, LLC) and Pocantico Home & Land Company, LLC (collectively referred to as “Spectrum”), individual homeowners (“homeowners”) residing within a subdivision known as The Legends at Pocantico Hills (“The Legends”), and petitioner Edelstein (“Edelstein”) appeal a boundary determination of Ronald L. Smalls, District Superintendent of the Second Supervisory District of Westchester County (“Smalls”), that The Legends and Edelstein’s property are located entirely within the boundaries of the Union Free School District of the Tarrytowns[1] (“Tarrytowns”).  In the third appeal, Spectrum and the homeowners challenge the refusal of the Board of Education of the Union Free School District of the Tarrytowns (“Tarrytowns board”) and the Board of Education of the Pocantico Hills Central School District (“Pocantico Hills board”) to consent to a boundary alteration to include The Legends within the Pocantico Hills Central School District[2] (“Pocantico Hills”). Because the appeals raise similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

In May 2003, Spectrum purchased property totaling approximately 11 acres located in the Town of Mount Pleasant, Village of Sleepy Hollow, for residential development.  The parcels are identified on the Sleepy Hollow tax assessment map as Section 115.12, Block 2, Lots 35.1, 35.2, 35.3, 35.4, 35.5, 35.6, 36.7, 35.8, 35.9, 35.10, 35.11, 35.12 and 35.14 and are collectively known as The Legends.  The homeowners are eight families that contracted with Spectrum between May 2003 and March 2004 to build homes in The Legends.  Edelstein owns a home, purchased in January 2002, that is located on property identified on the tax map as Section 115.12, Block 2, Lot 42.  His property is not part of The Legends.

When Spectrum purchased The Legends and the homeowners entered into contracts to build homes there, they believed The Legends was located in Pocantico Hills.  This belief was based in part on tax maps, tax bills and tax assessment rolls maintained by the Town of Mount Pleasant indicating that The Legends was in Pocantico Hills.  Spectrum also asked Pocantico Hills’ superintendent about the location of the property and he stated that the property was in the district listed on the tax bill.  At the time of his purchase, Edelstein apparently believed, based on tax records, that the boundary between the two school districts intersected his property.

Sometime after Spectrum purchased The Legends, a dispute arose regarding the school district in which the property was located.  On December 15, 2003, Spectrum petitioned Smalls for a boundary determination pursuant to Education Law §2215(1).  On February 2, 2004, Smalls conducted a boundary determination hearing. Documents received into evidence included tax maps, tax rolls and bills, school district maps, correspondence, the 1947 New York State Master Plan for School District Organization, deeds, three boundary line alteration orders (dated June 25, 1951; June 23, 1952 and March 9, 1953) and excerpts from minutes of Pocantico Hills and Tarrytowns board meetings held between 1950 and 1957.

On March 8, 2004, Smalls issued his decision, determining that the boundary line between the two school districts traverses “the center lines of Bedford Road and County House Road” and finding that, therefore, The Legends is “located wholly within the geographic boundaries of ...Tarrytowns.”  As a result of Smalls’ decision, Edelstein’s property was also located entirely within Tarrytowns.

In his decision, Smalls relied principally on the 1951, 1952 and 1953 boundary line alteration orders of Harold Hollister (“Hollister”), then District Superintendent of the Second Supervisory District of Westchester County.  The record indicates that, in 1951, the Pocantico Hills board agreed to permit the transfer of certain property that included the parcels now comprising The Legends to Tarrytowns so Tarrytowns could build a new high school.  The boards agreed that, if Tarrytowns’ voters failed to approve a bond to fund the purchase of a site on which to build the proposed high school, the property would be returned to Pocantico Hills.  On June 25, 1951, upon consent of both boards, Hollister entered an order pursuant to Education Law §1507, altering the boundary line between the districts.  As a result, the property transferred to Tarrytowns.

Tarrytowns’ bond proposition was defeated.  On June 23, 1952, a second boundary line alteration order, consisting of the same bounded and described property was, upon written consent of the Pocantico Hills and Tarrytowns boards, entered by Hollister, transferring the property back to Pocantico Hills.

In 1953, Tarrytowns asked the Pocantico Hills board to consent to alter the boundary again so Tarrytowns could once more seek voter approval to build a new high school.  On March 9, 1953, a third boundary line alteration order was, upon consent of both boards, entered and filed by Hollister altering the boundary between the districts to again transfer the property to Tarrytowns.  Hollister certified that the 1953 order was filed with the district clerks of both districts, the town clerks of Mount Pleasant and Greenburgh, the Westchester County Clerk and the State Education Department (“Department”), as were the prior 1951 and 1952 orders.  No further boundary alteration order has been entered and filed since the March 9, 1953 order.

Subsequent to the 1953 order, the Tarrytowns’ voters approved the construction of a new high school and a bond proposition to finance the project.  Tarrytowns acquired title to some of the land within the transferred property and built the new high school on that land.  The remaining parcels of the transferred property now include The Legends.

In his decision, Smalls noted that, despite the 1953 boundary alternation order, the Town of Mount Pleasant had assessed the transferred property to Pocantico Hills for almost 40 years[3] and Pocantico Hills received the school taxes.  Smalls determined, however, that the 1953 order was undisputed and unambiguous and established the boundary between the districts as “the line bounded by the Old Croton Aqueduct on the west, the center lines of Bedford Road and Old County House Road, to the north and east, and Andre Brook to the south and east.”

Smalls noted Spectrum’s claims that the school districts intended the 1953 boundary alteration to be conditional on the use of the entire property transferred for Tarrytowns’ proposed high school and that any unused property would be transferred back to Pocantico Hills.  Smalls held that, even if true, such was not controlling for purposes of his determination, as no further boundary alteration order was entered or filed after the 1953 order.

On March 19, 2004, upon receiving Smalls’ decision, Spectrum demanded that the Pocantico Hills and Tarrytowns boards alter the school district boundary line “pursuant to their 1953 Agreement ....”  On March 22 and 23, 2004, respectively, the boards declined.

On April 5, 2004, Pocantico Home & Land Company, LLC (a Spectrum affiliate) and some of the homeowners commenced an action against Pocantico Hills and Tarrytowns in Supreme Court, Westchester County, for breach of contract and declaratory relief. Plaintiffs sought specific performance of the alleged 1953 agreement to alter the boundary so as to transfer certain property now comprising The Legends back to Pocantico Hills.  In addition, plaintiffs sought a declaration of the school district boundary that would place The Legends in Pocantico Hills.  Edelstein, J.B. and L.A. intervened in that action.  Smalls was not a party.

On April 6, 2004, Edelstein and Spectrum Communities, LLC each commenced appeals under Education Law §310 challenging Smalls’ boundary determination.  On December 13, 2004, the Supreme Court rendered a decision in favor of the plaintiffs declaring that The Legends and Edelstein’s property “is and should be within the Pocantico District” and ordering both boards to consent to alter the boundary accordingly.  On December 14, 2004, Spectrum Communities, LLC withdrew its §310 appeal.  On December 15, 2004, Edelstein withdrew his §310 appeal.  By letter dated December 22, 2004, my Office of Counsel acknowledged that both appeals were withdrawn.

Tarrytowns and Pocantico Hills appealed the Supreme Court’s decision.  On July 11, 2005, the Appellate Division, Second Department, reversed the Supreme Court on jurisdictional grounds, holding that the statutory authority to review a district superintendent’s boundary determination is vested in the Commissioner of Education pursuant to Education Law §§310 and 2217 and that plaintiffs were required to exhaust their administrative remedy before seeking court review.[4]  On August 4 and 9, 2005, respectively, Edelstein, Spectrum and the homeowners commenced the instant appeals seeking review of Smalls’ March 8, 2004 decision (hereinafter referred to as the “Edelstein appeal” and the “Spectrum/homeowners appeal”).

By letters dated, July 29, 2005, Spectrum and the homeowners requested that the Tarrytowns and Pocantico Hills boards consent to an alteration of the school district boundary line pursuant to Education Law §1507 to include The Legends in Pocantico Hills.  On August 4 and 5, 2005, respectively, the Pocantico Hills and Tarrytowns boards refused to consent to the boundary alteration.  On August 30, 2005, Spectrum and the homeowners appealed the boards’ refusals to consent (hereafter referred to as “the Consent appeal”).

Petitioners made several requests for interim orders in connection with their appeals which were denied.  The most recent request, on August 28, 2006, for an interim order permitting the homeowners’ children to attend school in Pocantico Hills pending a determination on the merits of the appeals, was denied on August 31, 2006.

In the Spectrum/homeowners and Edelstein appeals, petitioners seek a review of Smalls’ boundary determination, rendered pursuant to Education Law §2215.  They challenge Smalls’ reliance on the 1951, 1952 and 1953 boundary alteration orders and assert that he should have exercised discretion and declared the disputed property to be within the boundaries of Pocantico Hills.  They seek a reversal of Smalls’ decision and a determination that The Legends “is and/or ... should be” in Pocantico Hills (in Edelstein’s case, partially in the district).  They demand, to the extent necessary, orders directing the Tarrytowns and Pocantico Hills boards to consent to the alteration of the boundary line accordingly and directing Smalls to execute and file a boundary alteration order effectuating such alteration in accordance with Education Law §1507.

In the Consent appeal, petitioners challenge the August 4 and 5, 2005 respective refusals of the Pocantico Hills and Tarrytowns boards to consent to an alteration of the school district boundary that would locate The Legends in Pocantico Hills.  They maintain such refusals are arbitrary and capricious and seek an order directing the boards to consent to the requested boundary alteration.

Respondents raise several procedural objections to the appeals.  They contend the appeals are untimely and barred by the election of remedies doctrine.  Respondent Smalls asserts that Edelstein lacks standing to challenge his decision.  Respondents Pocantico Hills and Tarrytowns also assert that the appeals must be dismissed for failure to join a necessary party.  On the merits, respondents maintain that Smalls’ decision should not be disturbed; that there is no basis for altering the boundary between the school districts and that their refusal to consent to such alteration was not arbitrary or capricious.

Initially, I must address several procedural matters.  The parties request that the record in the Spectrum/homeowners appeal be incorporated into the Edelstein and Consent appeals.  They also ask that I take notice of the record before the Appellate Division.  In Edelstein’s appeal, Tarrytowns requests that I take notice of the papers filed in the previously withdrawn appeals.  The parties’ requests with respect to the record before the Appellate Division and the records of the pending appeals that are the subject of this decision are granted.  However, I decline to take notice of papers filed previously in the withdrawn appeals, except as resubmitted by the parties in these appeals.

The parties also applied, pursuant to §276.5 of the Commissioner’s regulations, to submit additional papers in each appeal.  With respect to the applications in the Spectrum/homeowners appeal, petitioners’ August 15 and November 22, 2005 submissions have been accepted for consideration.  Tarrytowns’ October 20, 2005 Schofield affidavit has been accepted but its attorney’s December 13, 2005 letter has not been considered.  In addition, Exhibit E to the September 12, 2005 Bourassa affidavit in support of Tarrytowns’ answer has not been considered.  With respect to the Edelstein appeal, Edelstein’s November 2, 2005 and April 19, 2006 letters, Pocantico Hills’ November 29, 2005 letter and Tarrytowns’ April 24, 2006 letter have been accepted for consideration.  With respect to the Consent appeal, Pocantico Hills’ October 31, 2005 sur-reply affidavit by Susan Fine and petitioners’ November 25, 2005 letter have been accepted.  Tarrytowns’ attorney’s letter of December 13, 2005 has not been accepted.

Respondents object to the verified replies submitted in the Spectrum/homeowners appeal and the Edelstein appeal.  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.

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 Spectrum/homeowners and Edelstein appeals seek review of Smalls’ March 8, 2004 boundary determination rendered some 17 months prior, well beyond the 30-day period required under §275.16 of the Commissioner’s regulations.  However, 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 commence a timely appeal with the Commissioner, when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding (Appeal of Markow-Brown, 45 Ed Dept Rep 315, Decision No. 15,333).

As noted above, on April 5, 2004 Pocantico Home & Land Company, LLC and ten of the individual homeowners commenced an action in Supreme Court, in which Edelstein, J.B. and L.A. intervened, seeking a determination that The Legends is or should be included in Pocantico Hills and an order that both school districts consent to altering the boundary accordingly.  Although plaintiffs obtained a favorable decision from the Supreme Court, on July 11, 2005, the Appellate Division, Second Department, reversed the Supreme Court’s decision on jurisdictional grounds.  The petitioners in the Edelstein and Spectrum/homeowners appeals commenced their appeals on August 4 and 9, 2005, respectively, within 30 days of the Appellate Division’s decision.

Respondents contend that, because Spectrum and Edelstein previously filed §310 appeals from Smalls’ decision and then - upon receipt of the favorable Supreme Court decision - withdrew those appeals, the above-described exception to the general 30-day time period should not apply.  They assert that it should only apply when a petitioner inadvertently selects an improper forum, not where an appeal was commenced and subsequently withdrawn.  I decline to apply the exception so narrowly.  Had Spectrum and Edelstein never initiated and withdrawn the prior appeals, the parties before me would be in no different position.  In any event, the homeowners in the current appeals were not parties to the prior appeals and only proceeded in court.  Ultimately, all petitioners failed to obtain a decision from the courts on the merits.  Therefore, I decline to dismiss the Spectrum/homeowners and Edelstein appeals as untimely, with the following exception.  I note that homeowners M.S. and P.S. were not parties to the court proceedings and, thus, may not avail themselves of the exception.  With respect to them, the Spectrum/homeowners appeal is untimely.

Respondent boards also maintain that the court action constituted an election of remedies, precluding petitioners from bringing these appeals.  The prior commencement of an action or proceeding in another forum, based on the same or similar facts, involving the same parties and seeking the same relief, constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Romano, 43 Ed Dept Rep 466, Decision No. 15,052; Appeal of Smolen, 43 id. 296, Decision No. 15,000).  However, as discussed above, where the court action or proceeding does not result in a final determination on the merits, an appeal will lie, if commenced within a reasonable time after dismissal of the court proceeding.  The Spectrum/homeowners and Edelstein appeals, therefore, are not dismissed for election of remedies.

In the Consent appeal, petitioners challenge the refusal of the Pocantico Hills and Tarrytowns boards to consent to petitioners’ July 29, 2005 requests for consent to an alteration of the school district boundary, pursuant to Education Law §1507, that would place The Legends in Pocantico Hills.  By letters dated August 4 and 5, 2005, the Pocantico Hills and Tarrytowns boards denied petitioners’ request respectively.  The Consent appeal was initiated on August 30, 2005.

Respondent boards contend that the Consent appeal is untimely on the grounds that petitioners’ July 29, 2005 request merely sought reconsideration of the boards’ March 22 and 23, 2004 denials of Spectrums’ request for alteration of the boundary.  Respondents contend that the time to appeal ran from March 22 and 23, 2004 and that the Consent appeal is 17 months late.

Spectrum argues that the March 19, 2004 letter was not a request for consent to alter the boundary, but instead, was a demand solely to satisfy Education Law §3813 as a notice of claim prior to initiating the Article 78 proceeding in Supreme Court.  I have reviewed the March 19, 2004 demand letter.  Although there is no reference to Education Law §1507, it is clearly a request for consent to alter the boundary.

Spectrum contends that, even if the time to appeal ran from the boards’ March 22 and 23, 2004 denial letters, such denials were part of Pocantico Hills Home & Land Company, LLC’s Article 78 proceeding which did not result in a determination on the merits.  Spectrum asserts that such constitutes good cause for the delay in filing the Consent appeal.  However, unlike the Spectrum/homeowners and Edelstein appeals, the Consent appeal was not brought within a reasonable time after the Appellate Division’s decision.  I note that, in the Spectrum/homeowners appeal, Spectrum asserts that Notice of Entry of the Appellate Division decision was received on July 18, 2005.  The Consent appeal was served on August 30, 2005 – 43 days later.  Commencement of the appeal beyond 30 days of their receipt of the Appellate Division’s decision does not constitute a reasonable time (see Appeal of Markow-Brown, 45 Ed Dept Rep 315, Decision No. 15,333).  Therefore, the Consent appeal, as to Spectrum, is untimely.

However, I do not find the Consent appeal untimely with respect to the homeowner petitioners.  They first requested the boards’ consent to a boundary alteration pursuant to Education Law §1507 on July 29, 2005.  The Consent appeal was initiated within 30 days of the boards’ August 4 and 5, 2005 refusals.  Therefore, as to the homeowner petitioners, the Consent appeal is timely.

In the Edelstein appeal, Smalls asserts that Edelstein lacks standing to appeal Smalls’ March 8, 2004 boundary determination.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Sweeney, 44 Ed Dept Rep 176, Decision No. 15,139; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Bermudez, 41 id. 355, Decision No. 14,712).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Polmanteer, 44 Ed Dept Rep 221, Decision No. 15,155; Appeal of Murphy, 39 id. 562, Decision No. 14,311).  Because the location of Edelstein’s property is affected by Smalls’ decision, his appeal will not be dismissed for lack of standing.

Respondent boards further assert that the appeals must be dismissed for failure to join a necessary party.  They assert that the Desiderio-Organist family resides in The Legends and the children currently attend school in Tarrytowns as residents without payment of tuition.  Respondent boards maintain that, because the Desiderio-Organist’s property location and right to enroll their children in Tarrytowns will be affected by a determination in favor of petitioners, they are necessary parties to the appeal.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).

The record contains an affidavit by Gale Organist in which she states that she and her husband were asked by petitioners to participate in the prior proceedings regarding The Legends.  She states that they did not do so because they would accept the location of their home in either district.  She further states that they support current efforts to “confirm that The Legends ... (including our home) is located in the Pocantico Hills CSD” and requests that the relief sought in the petitions be granted.  In view of that submission, I decline to dismiss the appeals for failure to join a necessary party.

Pocantico Hills and Tarrytowns contend that, to the extent the appeals challenge their refusal to consent to a boundary alteration pursuant to Education Law §1507, petitioners must first seek alteration by the district superintendent without consent of the districts, pursuant to Education Law §§1508 and 1509.  Education Law §1507 authorizes a district superintendent of a supervisory district to alter the boundary between school districts upon consent of the trustees of all school districts concerned or with the written consent “of the board of education of a union free school district having a population of [4,500] or more, and employing a superintendent of schools ....”  A district superintendent has no authority to order such boundary adjustment under §1508 if the district which refuses to consent has a population of 4,500 or more and employs its own superintendent (Appeal of Roberta, 38 Ed Dept Rep 690, Decision No. 14,119).  Census data indicates that the population of Pocantico Hills and Tarrytowns each exceed 4,500.  Therefore, the provisions of Education Law §§1508 and 1509 do not apply.

The Spectrum/homeowners and Edelstein appeals seek review and reversal of Smalls’ March 8, 2004 boundary determination.  In those appeals, petitioners assert that Smalls failed to consider evidence relating to the historical treatment of the disputed property, including tax maps, tax rolls and bills, and representations by school district staff.  They also maintain that Smalls improperly failed to consider an alleged agreement between the districts in 1953 to return to Pocantico Hills lands not used to build the Tarrytowns high school (which lands include The Legends).  Petitioners maintain that Smalls also should have considered the degree of due diligence undertaken by Spectrum prior to purchasing The Legends property.  They maintain Smalls failed to apply the doctrine of acquiescence and estoppel against the districts to determine the boundary line between them.

Pursuant to Education Law §2215(1), a district superintendent has the power and duty to ascertain whether the boundaries of the school districts within his or her supervisory district are “definitely and plainly described in the records of the office of the proper town clerk....”  If the boundaries are indefinite, defective, or in dispute, the district superintendent shall cause them to be amended and provide for the filing of the corrected boundaries in the office of the town clerk and the Department (Education Law §2215[1]).  In making such a determination, the issue before the district superintendent is narrow: where is the true boundary located.  Where the boundary is established, the district superintendent does not have discretion to consider other equitable factors (see Appeal of the Bd. of Educ. of Hudson Falls CSD, 38 Ed Dept Rep 437, Decision No. 14,067).  The district superintendent’s authority is limited to a factual determination of the location of the boundary line based on the record before him (see Appeals of Salerni and the Bd. of Educ. of the Saratoga Springs Enlarged City School Dist., 27 Ed Dept Rep 393, Decision No. 11,987, affd sub nom Schuylerville Cent. School Dist. v. Commissioner of Education, et al., 152 AD2d 241).  While a district superintendent is clearly authorized to issue a determination to clarify an indefinite boundary line ... he has no authority under the law to change that boundary (Appeal of Elacqua, et al., 32 Ed Dept Rep 658, Decision No. 12,948).

In this case, Smalls noted Spectrum’s equitable claims and reviewed all the evidence, including the tax assessment maps, tax rolls and bills, as well as school district maps and the 1951, 1952 and 1953 boundary alteration orders entered and filed by a former district superintendent.  However, Smalls found that the last boundary alteration order in 1953 clearly and definitely described the boundary between the school districts and that no further orders had since been entered and filed.  Although Spectrum argued the existence of an agreement between the districts to transfer back to Pocantico Hills a portion of the property described in the 1953 order, the definitive description in the 1953 order itself was undisputed.  Given the definitive, unambiguous boundary line described in the 1953 boundary alteration order, and finding no subsequent orders, Smalls properly determined that the boundary between the school districts traverses “the center lines of Bedford Road and County House Road ...” and he had no authority to change it.  Smalls’ March 8, 2004 boundary determination, therefore, was supported by the record before him and was not arbitrary and capricious.

Despite the existence of the undisputed, unambiguous 1953 order clearly describing the boundary between the districts, Spectrum, the homeowners and Edelstein here seek a boundary determination whereby The Legends “is and/or ... should be” in Pocantico Hills and Edelstein’s parcel is intersected.  They contend that equitable considerations of acquiescence and estoppel warrant such a result.  Petitioners rely on an alleged 1953 agreement between the districts’ boards to transfer back to Pocantico Hills any property not used to build Tarrytowns’ high school, citing to board minutes during the relevant time period.  They claim that, insofar as The Legends property was not used to build the high school, it “reverted” to Pocantico Hills and maintain the boundary should be changed accordingly.  In further support of the claimed reversion, petitioners contend that, at least since 1959, the property was consistently treated as if it were in Pocantico Hills and that the districts should be estopped from claiming otherwise.

Historic treatment of property, including tax history, and equitable arguments regarding the true location of a school district boundary have been considered in determining otherwise ambiguous boundaries in disputes between school districts (Appeal of Bd. of Educ. of the Ogdensburg Enlarged City School Dist., 34 Ed Dept Rep 26, Decision No. 13,223, affd sub nom  Bd. of Educ. of the Lisbon Cent. School Dist. v Sobol, et al., 226 AD2d 945; Appeal of Bd. of Educ. of the South Jefferson CSD, 28 Ed Dept Rep 547, Decision No. 12,194).  Where an unambiguous legal description of the boundary exists, as here, such description is controlling (see Appeal of Bd. of Educ. of the Hudson Falls CSD, 38 Ed Dept Rep 437, Decision No. 14,067).

Moreover, even if consideration of petitioners’ claims regarding the alleged reversion agreement and historic factors was warranted, such claims are not supported by the record.  Petitioners maintain that board minutes from 1950 through 1957 establish an agreement between Pocantico Hills and Tarrytowns to transfer back to Pocantico Hills property not used for Tarrytowns’ high school.  The relevant minutes contemporaneous with the boundary alteration orders, and particularly the 1953 order, do not establish any agreement pertaining to reversion of unused property.

In fact, examination of the historic treatment of the property reveals ambiguities and inconsistencies.  For example, currently, and at times during the 1960’s and 1970’s, Tarrytowns enrolled, as residents, children living on the disputed property.  In at least one instance Pocantico Hills’ staff directed the family to Tarrytowns.  The record indicates that Tarrytowns included the property in its election notices and that historic maps were inconsistent.  Petitioners assert that, in 1959, the districts cooperated in a proceeding by the Town of Mount Pleasant to amend assessment rolls to include the property that is now The Legends on Pocantico Hills’ tax rolls.  However, the record is far from clear regarding the districts’ involvement with respect to that transfer but does indicate that Tarrytowns provided a copy of the 1953 boundary alteration order to the town clerk.

Petitioners argue that, throughout public hearings relating to the development of the subdivision, Tarrytowns never asserted that the land was in its district.  However, there is no indication that school district location was at issue during the process.  Petitioners cite to a letter by Pocantico Hills’ superintendent, during that time, in which he considered the property to be in Pocantico Hills.  They also note statements he made to some petitioners directing them to rely on tax information in determining their homes’ location.  The superintendent acknowledged that he relied on the erroneous tax maps and there is no indication of deliberate intention to mislead anyone.  There is also no evidence that Tarrytowns was approached by or provided erroneous information to any petitioner.  Thus, even if relevant to a determination of the current boundary, petitioners fail to establish their equitable contentions.

The question remains whether to require the districts to consent to a boundary alteration.  In determining whether to alter school district boundaries, factors to be considered are the educational interests of the students involved, the effect of the transfer on the tax revenue of the districts involved and the effect of the transfer on the educational programs of the school district from which the property is transferred (Appeals of Bradley Industrial Park, et al., 35 Ed Dept Rep 397, Decision No. 13,583).  Where both districts refuse to consent, the effect of a boundary change on the educational resources of both districts must be considered (see Appeal of Regan, 34 Ed Dept Rep 72, Decision No. 13,237; Appeal of Kirschmann, 19 id. 424, Decision No. 10,195).  The Commissioner may set aside the refusal of a board of education in a non-city school district to consent to a boundary alteration where the Commissioner finds such refusal to be unreasonable in light of those factors (Appeals of Salerni and Bd. of Educ. of the Saratoga Springs Enlarged City School Dist., 27 Ed Dept Rep 393, Decision No. 11,987, affd sub nom Schuylerville Cent. School Dist. v. Commissioner of Education, et al., 152 AD2d 241).

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  The paramount consideration in a case involving a proposed alteration of district boundaries is the educational interests of the children involved.  Petitioners must make a clear showing that the denial of the relief requested will adversely affect those interests (Appeal of Jimerson, 39 Ed Dept Rep 558, Decision No. 14,310).

Petitioners set forth few factual allegations in their pleadings regarding each of the above noted factors.  In addressing the educational interests of the children involved, Spectrum and the homeowners allege that eight of the children enrolled in Pocantico Hills for the 2005-2006 school year, of which three also attended in 2004-2005.  Prior to the 2004-2005 school year, none of the homeowners’ children attended school in Pocantico Hills.  Although Edelstein’s two sons attended in 2002-2003 and 2003-2004, Edelstein withdrew his children and enrolled them in private school for the 2004-2005 school year and thereafter.

In support of their claim that the children would be adversely affected if they do not remain in Pocantico Hills, petitioners submit several homeowners’ affidavits recounting their reasons for purchasing homes thought to be in Pocantico Hills, including an assessment of the quality of education, small class size, facilities and curriculum.  Parental preference, however, is not sufficient basis for a boundary change (Appeal of Jimerson, 39 Ed Dept Rep 558, Decision No. 14,310; Appeal of Ocwieja, 38 id. 70, Decision No. 13,985; Appeal of Bearup, 32 id. 570, Decision No. 12,916).  Petitioners have not demonstrated that any child will be adversely affected if they attend school in Tarrytowns.  Indeed, it appears from the record that, because Pocantico Hills does not maintain its own high school, upon reaching high school age a number of Pocantico Hills students choose to enroll in Tarrytowns.

The Spectrum/homeowners’ petition and the Consent petition merely contain conclusory allegations regarding the educational impact on the eight children who attended Pocantico Hills for the past one or two years.  Edelstein contends that his children should not be forced to transfer to a different school district, citing Schuylerville Cent. School Dist. v. Commissioner of Education, et al., 152 AD2d 241.  As noted, however, Edelstein’s children attend private school and would have to transfer to a new school to attend either district.  In considering any disruptive affect a transfer would have on the remaining children, I note that the two Desiderio-Organist children are attending school in Tarrytowns.  Therefore, alteration of the district boundary to include The Legends in Pocantico Hills would require that those two children be disrupted in transferring out of Tarrytowns.  I also note that two of the homeowners’ children are students with disabilities who are guaranteed a free appropriate public education under federal and State law (20 USC §1400, et seq., Education Law, Article 89), regardless of the school district in which they enroll.

In addition, unlike the students in Schuylerville Cent. School Dist. v. Commissioner of Education, et al., 152 AD2d 241, who had attended the Saratoga City School District as bona fide residents prior to the boundary dispute, the homeowners’ children currently enrolled in Pocantico Hills have historically attended Pocantico Hills solely pursuant to stipulations or court orders voluntarily sought by petitioners within the context of litigation.  Indeed, from the time the children were entitled to attend school, Pocantico Hills has maintained that the children do not reside in its district.  Voluntarily sought stipulations and court orders cannot provide the basis of a subsequent argument that the children’s education would be disrupted.  The only children attending school as bona fide residents of their school district are the Desiderio-Organist children – in Tarrytowns.

The effect of a boundary change on the tax revenues and educational programs of the districts must also be considered.  The petitions in the Spectrum/homeowners and the Consent appeals contain no factual allegation regarding these issues, except to assert that the Pocantico Hills district has been receiving taxes on the property.  Petitioners have not demonstrated that Pocantico Hills relied to any degree on those taxes.

The record indicates Pocantico Hills has received taxes on the property since at least 1966.  However, prior to 2003/2004 when Spectrum sold homes constructed on The Legends property, the property was essentially undeveloped.  It appears that for some period a portion of the property was tax exempt because a church was located on it.  Pocantico Hills characterizes the tax impact of the undeveloped land erroneously assessed to it as generating little revenue.  Petitioners have not alleged otherwise.

In 2003 and 2004, upon development of the property, Spectrum sold the homes it constructed in The Legends to petitioner homeowners.  Spectrum and the homeowners assert that, if the boundary is not changed and The Legends remains in Tarrytowns, the homeowners’ property taxes will approximately double.  Although the homeowners perceive the tax ramifications of Smalls’ boundary determination negatively, the considerations of the Tarrytowns and Pocantico Hills boards in considering whether to consent to a change, must necessarily be broader than petitioners’ individual concerns (Appeals of Bradley Industrial Park, et al., 35 Ed Dept Rep 397, Decision No. 13,583; see Matters of Cartwright and Kaye, 8 St. Dept Rep 162).

In their brief in the Consent appeal, Spectrum and the homeowners argue in conclusory fashion that, without a boundary change, Pocantico Hills’ budgets and educational programs will be adversely affected by the loss of taxes from The Legends.  Their petition, however, sets forth no factual allegations addressing those factors.  Significantly, Pocantico Hills has not alleged any adverse effect and, in fact, seeks dismissal of the appeals.  It appears Pocantico Hills only recently has realized any increased tax revenue as a result of the development of The Legends’ property.  Yet for much of that time - since the March 8, 2004 Smalls’ decision – it appears that Pocantico Hills has not asserted any entitlement to those revenues or adverse impact from their loss.  Rather, Pocantico Hills has supported Smalls’ decision.  In addition, a 2004 newsletter from the president of the Pocantico Hills board to district residents and taxpayers illustrates the board’s determination that Pocantico Hills would not experience an adverse impact if the boundary was not changed.  Petitioners set forth no specific factual allegations or point to any evidence tending to prove otherwise.

Both districts here are aligned in opposition to the boundary alteration.  Pocantico Hills, which would receive the property if petitioners prevail, does not challenge Smalls’ decision and does not claim that the property is significant to its overall tax revenues or educational programs.  Petitioners present no countervailing evidence.

Edelstein’s petition sets forth conclusory allegations and only with respect to taxes Tarrytowns paid to Pocantico Hills as a result of his designation, pursuant to Education Law §3203, to enroll his children at Pocantico Hills in 2002-2003 and 2003-2004.  Any tax benefit Pocantico Hills received from Tarrytowns inured only as a result of Edelstein’s §3203 designation to send his children to Pocantico Hills which could be terminated at any time.  Indeed, it appears that Pocantico Hills has not received tax revenues associated with Edelstein’s children since the end of the 2003-2004 school year when he placed them in private school and that Tarrytowns retained that revenue.

On the record before me, and upon consideration of the relevant factors, I cannot conclude that the refusal of the boards to consent to a boundary change was arbitrary, capricious or without rational basis.  There is simply insufficient evidence in this record to cause me to substitute my judgment for that of both boards.

Finally, Edelstein asserts that, notwithstanding the fact that his property is now entirely within Tarrytowns, he is entitled to continue to elect to send his children to Pocantico Hills pursuant to Education Law §3203(1).  That provision permits the owner of property intersected by a school district boundary to designate either district in which to enroll the resident children.  It provides, in pertinent part, “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.”  Having determined that his property was not intersected by the boundary between Tarrytowns and Pocantico Hills since at least 1953, Edelstein’s initial designation was not valid and therefore, there is no legal basis for continuing it (Appeals of Geier and Sharp, 45 Ed Dept Rep 230, Decision No. 15,309).

I have reviewed the parties remaining contentions and find them to be without merit.

THE APPEALS ARE DISMISSED.

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