Appeal of MICHAEL S. WAHL from action of the Board of Education of the Holland Central School District regarding a school closing.

Decision No. 17,086

(May 22, 2017)

Hodgson Russ LLP, attorneys for respondent, John J. Christopher and Melanie J. Beardsley, Esqs., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Holland Central School District (“respondent”) to change the grade configuration of its schools so as to close its middle school.  The appeal must be dismissed.

A study of respondent’s facility usage, completed on July 12, 2010, outlined two options for the district’s facility usage.  The first option was to maintain the district’s current building usage and grade configuration; i.e., an elementary school for pre-kindergarten through grade 4; a middle school for grades 5 through 8; and a high school for grades 9 through 12.  The second option was to close the elementary school and operate a pre-kindergarten through grade 6 school at the site of the middle school.  Respondent considered these proposals at board meetings held between October 2011 and February 2012.

On February 15, 2012, the board voted to accept the recommendation of the administration to reconfigure the schools of the district to two schools, one school for universal pre-kindergarten through grade 6, and one school for grades 7 through 12.  The board’s resolution contained a “caveat” that an independent contractor would be hired to review the scope of the reconfiguration project.

At a board meeting held on June 4, 2012, respondent debated whether it should offer universal pre-kindergarten through grade six instruction in the elementary or middle school building.  One board member preferred the elementary school, while two members of the central office administration favored the middle school.  No action was taken at this meeting regarding this issue.

At a board meeting held on June 25, 2012, the board again discussed whether the elementary or middle school building should house universal pre-kindergarten through grade six students.  One board member stated that because the State Education Department (“SED”) had not yet approved reconstruction plans for the middle school, it would be more feasible to use the elementary school because it would “give the committee time to review the best plan for students in conjunction with the [b]uilding [l]evel [t]eams.”  In a 5-2 vote, respondent resolved that the elementary school would “remain open” and provide universal pre-kindergarten through sixth grade instruction.  Respondent further resolved to use the middle school building for district, business and special education offices for the 2012-2013 school year, and to place all construction at the middle school on hold.

On or about October 10, 2012, the district’s interim superintendent submitted a “Phase-out/Phase-in/Closure Plan” to SED indicating that the district wished to close the middle school.  On November 7, 2012, SED approved the district’s request.

On or about August 26, 2013, respondent approved a contract permitting a daycare provider to operate a daycare in the middle school building.

At a board meeting held on July 7, 2014, respondent approved a rental agreement with a Board of Cooperative Educational Services (“BOCES”) whereby respondent rented a room in the middle school to BOCES to be used as storage space.  Additionally, the superintendent reported at this meeting that she had contacted a party who expressed interest in purchasing the middle school property, but that she had not received a call back.

At a board meeting held on October 20, 2014, the board reviewed the environmental impact of a proposed capital construction project for reconstruction and repair of its elementary school and junior/senior high school and issued a negative declaration on the project pursuant to the New York State Environmental Quality Review (“SEQRA”).  Respondent then unanimously approved a resolution to call a special district meeting to be held on December 16, 2014 to obtain voter approval of a proposition authorizing such capital construction project in an amount up to $13 million.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 15, 2014.

Petitioner contends that the district falsified documents submitted to SED to close the middle school.  Petitioner further contends that “untimely notification” of the closure was provided “to board of education members” and that the board never voted to close the middle school.  Petitioner requests annulment of the middle school closure as well as a stay of the December 16, 2014 vote.

Respondent denies petitioner’s material assertions and contends that the petition should be dismissed as untimely, that it properly voted to close the middle school on June 25, 2012, that it acted in good faith and that petitioner has failed to prove a clear right to the requested relief.  Respondent further argues that petitioner’s request for a stay of the December 16, 2014 vote is moot.

As a preliminary matter, the parties agree that petitioner’s request for a stay of the December 16, 2014 vote was rendered moot upon denial of petitioner’s stay request on December 15, 2014.[1]  Therefore, petitioner’s claims regarding the December 16, 2014 vote and respondent’s objections thereto are moot and will not be addressed herein.

The appeal must be dismissed.  Although not raised by respondent, standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]; Appeal of Fusion Academy-Brooklyn, 56 Ed Dept Rep, Decision No. 17,070).  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).

Other than his assertion that he is a district resident, petitioner’s appeal is devoid of any evidence showing that he is aggrieved or directly affected by respondent’s action.  While petitioner objects to the process by which the middle school was closed, he does not assert that he is the parent of a student attending the district’s schools and he otherwise lacks standing to assert the rights of others (see Appeal of Buzzard, 54 Ed Dept Rep, Decision No. 16,653; Appeal of Woodward, 36 id. 445, Decision No. 13,773; cf. Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 id. Decision No. 16,530).  Moreover, petitioner does not claim in the petition that his civil, personal or property rights were affected in any way by respondent’s decision to close the middle school (cf. Appeal of LaGrange, 51 Ed Dept Rep, Decision No. 16,315).  Accordingly, the appeal must be dismissed for lack of standing.

The appeal must also be dismissed as untimely. 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).

To the extent petitioner challenges respondent’s determination on October 20, 2014 to call a special district meeting for voter approval of the capital construction project, this appeal was not commenced until December 8, 2014, well more than 30 days after such action.  To the extent petitioner challenges respondent’s determination to change its grade configuration so as to eliminate the middle school, such action was taken on February 15, 2012, when respondent approved a change to an elementary school comprised of universal pre-kindergarten through grade 6 (see 8 NYCRR §80-1.1[b][18]) and a high school comprised of grades 7 through 12 (see 8 NYCRR 3.33[c]).  Thus, the effect of the resolution was to eliminate the middle school as an instructional unit.

Contrary to respondent’s arguments, the board’s action on June 25, 2012 did not change the district’s grade configurations or constitute a vote to close the middle school.  On its face, the June 25, 2012 action merely confirmed that in the following school year the middle school building would be used to house administrative offices.  Like respondent’s actions on August 26, 2013 and July 7, 2014 to authorize the use of the middle school by a daycare provider and lease a portion of the middle school building to the BOCES, such action was consistent with an intent to close the middle school, but it did not effect a change in grade configuration.  In any event, this appeal was not commenced until almost three years after respondent’s approval of the grade reconfiguration and more than two years after respondent’s June 25, 2012 action.

In his reply, petitioner contends that while he is “fully aware” of the 30-day timeline, the time period from which to appeal should be calculated from October 16, 2014 when “[b]oard of [e]ducation members were ... duly informed of [the] unauthorized building closure.”

This argument is unpersuasive because petitioner does not indicate when he personally learned of the middle school closure, referring only to the date when certain board members allegedly learned that the superintendent had submitted documentation to SED indicating that the middle school had closed.  In addition, respondent’s action to change the grade configuration was made in a public vote in a board meeting held on February 15, 2012, and petitioner’s failure to realize the significance of such action cannot justify a three-year delay in commencing this appeal.  Moreover, even assuming, arguendo, that petitioner learned of the middle school closure on October 16, 2014, the petition was still served 51 days after this date — i.e., 21 days late — and petitioner provides no excuse for this delay.  Therefore, the petition is untimely and must be dismissed.   

In light of this disposition, it is unnecessary to address the parties’ remaining arguments.

THE APPEAL IS DISMISSED.

END OF FILE