Appeal of ELEANOR WOLFF from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding the lease of real property.

Decision No. 16,215

(March 31, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges the lease of a building owned by the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”), known as the “Carriage House,” to the Five Towns Senior Center, Inc. (“senior center”), along with various “site improvements” that were made.  The appeal must be dismissed.

In October 2009, respondent adopted a resolution declaring that the Carriage House was not needed for school district purposes and that it was in the district’s best interest to lease it.  In December 2009, respondent approved a resolution authorizing the lease of the Carriage House to the senior center for 10 years.  The lease was executed in February 2010, and included provisions authorizing the senior center to make various “site improvements,” including the installation of a new sidewalk and safety fence, the removal of various trees, and the construction of a new parking lot.  Petitioner commenced this appeal on August 25, 2010, and her request for interim relief was denied on September 9, 2010.

Petitioner contends that the lease and/or the “site improvements” are not in the best interests of the district and community and, for various reasons, constitutes an abuse of discretion.  In addition, petitioner alleges that various “special interests” exist and appears to suggest that the lease should have been reviewed and approved by district voters and/or the Commissioner of Education.  Petitioner requests that I close the Carriage House “for any and all activities of [the senior center],” review the “judgment of [respondent] in the matter of ‘improvements’ to school property,” and disallow further use of the Carriage House and newly constructed parking lot unless respondent first obtains my approval.

Respondent generally denies petitioner’s allegations and contends that its actions are in all respects proper and in compliance with applicable laws.  Respondent also asserts the appeal is untimely, that petitioner lacks standing to maintain the appeal, and that petitioner failed to join the senior center as a necessary party.

As an initial matter, I must address petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Accordingly, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations not stated in the petition.

Respondent contends that petitioner lacks standing to maintain the appeal.  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 Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Here, it appears from the record that petitioner is a district resident.  In addition, petitioner sufficiently alleges facts, including claims of safety risks to her due to increased congestion and the degradation of her neighborhood, which, if established, would constitute the requisite personal harm necessary to maintain the appeal (seee.g.Appeal of McAuliffe, et al., 25 Ed Dept Rep 153, Decision No. 11,529).  I, therefore, decline to dismiss the petition for lack of standing.

The appeal, however, must be dismissed for failure to join a necessary party.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

The senior center is the leasee of the Carriage House and party to the challenged lease.  As such, the relief sought by petitioner, including invalidating the lease, proscribing the “site improvements,” and limiting the use of the property, would adversely affect the senior center.  Petitioner, however, did not clearly name the senior center as a respondent in the petition or notice of petition.  Nor is there any indication that the senior center was personally served with these documents. Petitioner’s failure to join the senior center, therefore, warrants dismissal of the appeal.

In addition, 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  In October 2009, respondent decided to lease the Carriage House.  In December 2009, it approved leasing the Carriage House to the senior center and executed the lease in February 2010.  Petitioner, however, did not commence this appeal until August 25, 2010, and offers no explanation for the delay.  Accordingly, to the extent that petitioner challenges respondent’s decision to lease the Carriage House, or the specific lease to the senior center, the appeal is untimely.

Finally, although not entirely clear, petitioner appears to request, as relief, some level of inquiry or investigation.  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857). 

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

THE APPEAL IS DISMISSED.

END OF FILE.