Appeal of ROBERT MENDELSON from action of the Board of Education of the Great Neck Union Free School District regarding the proposed construction of a parking lot.

Decision No. 17,852

(June 12, 2020)

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel.

TAHOE., Interim Commissioner.--Petitioner challenges various actions of the Board of Education of the Great Neck Union Free School District (“respondent”) regarding the proposed construction of a parking lot.  The appeal must be dismissed.

As early as 2015, respondent tasked the shared decision-making committees (“SDMC”) of its schools with identifying construction projects deemed important to each facility.  In response, the SDMC at respondent’s North High School recommended several projects, including converting a greenspace owned by respondent and located adjacent to petitioner’s property, into a student parking lot.  According to the record, proponents of the student parking lot project asserted that it would increase student safety, reduce the number of cars parked on the street, and reduce traffic congestion in the area.  Respondent adopted the SDMC’s recommendation and voted to include this parking lot project as part of a larger $99.41 million bond referendum plan, the vote for which was held on February 14, 2017.  Although the first bond referendum was defeated, respondent voted at its March 13, 2017 board meeting to put forth an amended bond referendum in the amount of approximately $77 million which included the proposed parking lot project at North High School.

Respondent’s efforts to educate the public about both versions of the proposed bond referendum included more than 35 public information sessions at various sites throughout the district, discussions at various board committee meetings, and discussions and presentations at board of education meetings held on October 20, 2016, November 14, 2016, December 12, 2016, January 9, 2017, March 9, 2017, March 13, 2017, and April 3, 2017.  Respondent also mailed several newsletters to the homes of district residents and created a video that was posted to the district website and aired on the district’s two television stations every thirty minutes from February 6 to February 14, 2017.  The vote for the reduced bond referendum was held on May 16, 2017 and passed with 6,299 votes in favor of the referendum and 1,925 against.

While not entirely clear from the record, at some point during the process of obtaining voter approval for the bond referendum, a contingent of district residents (purportedly the owners of properties in proximity to North High School) began to express opposition to the parking lot project.  In an attempt to address these concerns, respondent’s superintendent wrote an open letter to the community, posted on the district’s website and published in local newspapers in February 2018, explaining the need for the project, hosted an informational meeting on February 26, 2018 for neighbors of the school to learn about the project and ask questions, and commissioned a traffic study to determine the safety of the proposed project.  The traffic study was discussed at a board of education meeting on October 18, 2018.

On January 11, 2019, respondent submitted finalized plans and specifications for the parking lot project to the State Education Department’s Office of Facilities Planning (“SED”).  SED issued final approval for the project on April 25, 2019.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 2, 2019.

Petitioner objects to the construction of the parking lot and argues that “the approved plan quite possibly will endanger lives”; that the parking lot project will “directly affect [his] home and [his] quality of life”; that respondent “may not have” been forthcoming with SED in its application for project approval; that the district failed to adequately notify district residents of the proposed parking lot project; that the traffic study commissioned by respondent was inadequate; that respondent should have formally notified neighbors that it was contemplating the project under local law; that owners of certain neighboring properties should have been included in the SDMC; that the parking lot will not be adequately drained and will flood neighboring properties; that respondent’s plan takes no consideration of its neighbors or the environment; and that respondent should, instead of constructing a parking lot, utilize parking at an available, school-owned lot two blocks away.  For relief, petitioner requests that I revoke approval of the plan to build a parking lot and order respondent to “abandon all plans to pave over [the property],” determine that the property must be protected from unnecessary development and only be used for educational purposes such as athletics or environmental studies, and that I “advocate for future changes to the law” to require greater cooperation between property owners and respondent’s district.

Respondent argues that the appeal must be dismissed as petitioner lacks standing to maintain this appeal and as untimely.  On the merits, respondent argues that petitioner fails to state a claim upon which relief may be granted; it acted within its authority and discretion to make decisions regarding district-owned property and pursuant to the voter-approved bond referendum; it provided ample notice of the scope and nature of the parking lot project; the parking lot project serves a valid purpose, the parking lot will not affect petitioner’s quality of life or endanger lives; and petitioner has failed to provide any proof that respondent failed to apprise voters of the scope and terms of the bond referendum.

First, I must address a procedural issue.  Respondent argues that petitioner’s reply should be rejected because it restates claims already made in the petition and makes impermissible belated allegations which were not made in the petition.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, 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 answer.  Given this conclusion, it is unnecessary to consider respondent’s sur-reply, which responds to newly raised contentions in the reply (see Appeal of Laraque and Castellano, 58 Ed Dept Rep, Decision No. 17,493).

Respondent further contends that the appeal must be dismissed for lack of standing.  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Petitioner is the owner of property adjacent to the site of the proposed parking lot.  In the petition, petitioner alleges that respondent’s proposed project will negatively affect his property by, for example, flooding due to inadequate draining.  Given petitioner’s allegations of actual and/or imminent harm to his property, I find that petitioner has standing to bring this appeal (see Matter of Sierra Club v. Village of Painted Post, 26 NY3d 301 [stating that, in land use matters, a petitioner “must show that it would suffer direct harm, injury that is in some way different from that of the public at large”]; see generally Lujan v. Defenders of Wildlife, 504 US 555).

Nevertheless, 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).  Petitioner is challenging the parking lot project, which respondent included in the amended March 13, 2017 referendum and was approved by district voters on May 16, 2017.  Respondent commenced this appeal approximately two years later on May 8, 2019.  Petitioner does not set forth good cause, or any cause, for the delay in the petition (see 8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely (Appeal of Hubbard, 58 Ed Dept Rep, Decision No. 17,656; Appeal of Leland, 37 id. 525, Decision No. 13,918; Appeal of Crook, et al., 35 id. 546, Decision No. 13,628).

To the extent petitioner challenges SED’s approval of the parking lot project on April 25, 2019, it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by staff of the State Education Department (Appeal of Sheppard, 40 Ed Dept Rep 666, Decision No. 14,579; Appeal of Karpen, 40 id. 199, Decision No. 14,460; Matter of the Board of Education of the City School District of the City of Rome, 23 id. 382, Decision No. 11, 253, aff’d sub nom. Board of Ed., Rome CSD v. Ambach, 118 AD2d 932 [3d Dept 1986]; Appeal of Molloy College, 33 Ed Dept Rep 361, Decision No. 13,078).

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

THE APPEAL IS DISMISSED.

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