Appeal of ASHTON GROCHOLL, on behalf of her daughter, GRACE, from action of the Board of Education of the Margaretville Central School District regarding transportation.

Decision No. 17,804

(December 16, 2019)

               Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, James A. Gregory, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Margaretville Central School District (“respondent”) to deny her request to change a pick-up/drop-off location (“pick-up point”) for her daughter, Grace (“the student”).  The appeal must be dismissed.

Petitioner has resided with the student on Turk Hollow Road within the Margaretville Central School District since November 2018.  Sometime thereafter, petitioner requested that respondent change the location of the student’s pick-up point from a nearby intersection to Turk Hollow Road, arguing that her proposed location would be safer.

In response to this request, respondent’s superintendent visited the area in and around the existing pick-up point 12 times during the months of December 2018 and January 2019, between the hours of 3 p.m. and 4 p.m.  He observed the current area where the water and traffic supposedly are a concern and watched the bus arrive and discharge the students.  According to respondent, each observation lasted approximately one hour.  The record also reflects that two school board members and the principal visited the area “to observe the process,” “view the area, watch the traffic flow, [and watch] the bus arrive and discharge its passengers ....”

By letter dated February 8, 2019, the superintendent notified petitioner that the district had “looked into” the safety of the pick-up point and would not change the pick-up point to petitioner’s requested location.  This appeal ensued.

Petitioner contends that the current pick-up point is unsafe for the student because:  (1) oncoming traffic does not have to stop for red lights; (2) there are no sidewalks from the pick-up point to the student’s home; (3) there is a nearby bridge and year-long running river; (4) “three SUVs” often “pull off on the side of the road,” partially blocking the road; (5) these stopped cars cause the school bus to take up both lanes of a two-lane road; and (6) during the winter, the area where the vehicles pull off of the road “is not always plowed,” causing the stopped cars to further block traffic.  Petitioner requests that respondent change the student’s current pick-up point to her proposed location, petitioner’s driveway on Turk Hollow Road.  Petitioner further proposes that the district school bus use a designated turnaround area on private land, asserting that the landowners “give full permission and will maintain the turnaround for the bus.”

Respondent contends that the appeal must be dismissed as untimely and for lack of verification.  Respondent further argues that the appeal must be dismissed on the merits, asserting that the district has used the current pick-up point for nearly 20 years and that, during that time, there have been no complaints regarding safety.

The appeal must 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent denied petitioner’s request to change the location of the pick-up point by letter dated February 8, 2019.  The record does not indicate when petitioner actually received this determination.  Therefore, affording the usual five days for mailing, excluding Sundays and holidays, petitioner was required to commence the instant appeal by Monday, March 18, 2019, since the thirtieth day (after allowing five days for mailing) fell on Saturday, March 16, 2019 (see 8 NYCRR §275.8; General Construction Law §25-a).

On March 21, 2019, my Office of Counsel received a copy of a petition in this matter that was not verified in accordance with Commissioner’s regulations §275.5 and §275.6 and did not include an affidavit of personal service in accordance with Commissioner’s regulations §275.8 and §275.9.  It is unclear whether a copy of this petition was served upon respondent.  My Office of Counsel returned this petition to petitioner by letter dated March 22, 2019.  Thereafter, petitioner submitted the instant verified petition with an affidavit of service indicating that respondent was served with the petition on April 2, 2019.  Petitioner does not set forth good cause, or any cause, for the delay, as required by 8 NYCRR §275.16.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not untimely, it would be dismissed on the merits.  A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id.  128, Decision No. 15,814).  The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186).  Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point.  It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has not met her burden of proving that respondent acted arbitrarily or capriciously in refusing to change the location of the pick-up point.  At the outset, I note that petitioner has not submitted any evidence in support of the allegations in the petition.  In its answer, respondent denies the bulk of petitioner’s allegations but admits that:  (1) there are no sidewalks between petitioner’s residence and the pick-up point; (2) the area where vehicles stop on the side of the road is not always plowed during the winter; and (3) a shallow body of water is located near the pick-up point.  Thus, except for these assertions, which are discussed below, petitioner has failed to meet her burden of proving the existence or dangerous nature of the conditions of which she complains.

With respect to petitioner’s claim regarding the lack of sidewalks, this characteristic is common to many pick-up points in rural and suburban areas and is not, in and of itself, a basis for deeming the current bus stop unsafe (Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480; Appeal of E.F., 57 id., Decision No. 17,186).  Likewise, with respect to petitioner’s complaint concerning the “three SUVs” — presumably, vehicles operated by other parents in petitioner’s neighborhood – the mere presence of parked vehicles near a pick-up point does not establish the existence of a hazard (Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480; see also Appeal of Galdun, 45 id. 222, Decision No. 15,307).  Petitioner does not explain how either the location of the vehicles or the failure to plow is attributable to respondent.  Finally, with regard to petitioner’s claim that the pick-up point is located near a “year[-]long running river,” she fails to explain how this body of water poses a safety risk to the student.  The presence of running water in the area, in and of itself, is not proof of a hazard (see Appeal of Kaufman, 36 Ed Dept Rep 45, Decision No. 13,650).  Moreover, respondent identifies the nearby body of water as Vly Creek, which it asserts is approximately one foot deep.

Ultimately, on the record before me, I cannot conclude that respondent acted arbitrarily or capriciously in declining to adopt petitioner’s proposed pick-up point.  In 1998, respondent conducted a road safety survey, which looked at Turk Hollow Road and other roads near petitioner’s residence.  The results of the survey recommended that school buses be “banned” from operating on Turk Hollow Road because:  (1) it is a dead-end road less than a mile long; (2) it is not wide enough to accommodate a bus and another vehicle at the same time; (3) it lacks space for a bus to perform a three-point turn, as a result of which the district would need to receive permission from private landowners for the bus to turn around on private property; and (4) during the winter, the district would need to rely on such private landowners to plow any such turnaround area or, alternatively, to obtain its own snow-removal service.  In light of this information, respondent reasonably determined that petitioner’s proposed pick-up point on Turk Hollow Road would pose a greater risk to the student than the current pick-up point.  Moreover, respondent asserts that the bus stop has been at the same location for at least 20 years and there “have been no other complaints regarding its safety.”  Accordingly, I cannot conclude that respondent’s determination was arbitrary, capricious, or unreasonable.

While I understand that petitioner is concerned for her child’s safety, the law does not require a school district to provide transportation for students directly to and from home, as petitioner requests (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc.2d 384).  As stated above, it is the responsibility of petitioner, not respondent, to see that the student safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

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

THE APPEAL IS DISMISSED.

END OF FILE