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Decision No. 12,548

Appeal of JEROME AND KATHLEEN NAJUCH from action of Peter T. Kachris, District Superintendent of Schools for the Sole Supervisory District of Orleans and Niagara Counties, relating to the determination of a school district boundary.

Siegel, Kelleher & Kahn, Esqs., attorneys for petitioners, R. Thomas Burgasser, Esq., of counsel

Norton, Radin, Hoover & Freedman, Esqs., attorneys for respondent Niagara-Wheatfield Central School District, David A. Hoover, Esq., of counsel

Matthew R. Fletcher, Esq., attorney for respondent Peter T. Kachris, District Superintendent of Schools for the Sole Supervisory District of Orleans and Niagara Counties

Decision No. 12,548

(July 18, 1991)

Petitioners appeal from a determination made by respondent Kachris, dated July 10, 1990, in which he found that petitioners' real property on the easterly side of Schultz Road in the Town of Wheatfield, Niagara County, is located within the Starpoint Central School District and not within the Niagara-Wheatfield Central School District. The appeal must be dismissed.

It appears that prior to 1988, petitioners lived within the Niagara-Wheatfield Central School District and their children attended the public schools of that district. It further appears that in November of 1988, they acquired unimproved property known as 7087 Schultz Road. After taking title, they conveyed the property to Diamondcraft Homes, Inc., for the purpose of constructing a home; the property was reconveyed to them on or about April 14, 1989, by Diamondcraft. At some point, which is not disclosed by the record, a question arose as to whether or not the new residence was in the Niagara-Wheatfield Central School District. Petitioners apparently made a request to the district superintendent pursuant to Education Law '2215 to resolve that issue.

The district superintendent's decision indicates that he caused an investigation to be made in the records of the town clerks of the Town of Pendleton and the Town of Wheatfield. He also indicates that he conducted a review of documents on file with the New York State Archives, the State Education Department and the Niagara County Clerk's Office. The district superintendent concluded that all the documents that he reviewed indicated that the subject property "is clearly within the Starpoint Central School District and has been so since 1943."

Petitioners contend that they moved into their new home "based upon information received from officials from Niagara-Wheatfield," but they do not specify the names of the persons upon whom they allegedly relied, nor the nature of the information allegedly provided. They further claim that they were misled by a map attached to the petition which appears to be part of a Niagara-Wheatfield informational mailing dated December 13, 1988. (I note, however, that this mailing occurred after petitioners bought the property in question.) They contend that no map has ever been filed specifying school district boundaries. They further claim that the best interests and welfare of their children require that the children be allowed to continue to attend schools in the Niagara-Wheatfield Central School District without the payment of tuition. Finally, they request that I excuse their failure to commence this appeal within the time specified in 8 NYCRR '275.16.

Both respondents assert that this appeal is untimely since it was deemed commenced on September 7, 1990, more than 30 days after the district superintendent's determination of July 10, 1990. Respondents also claim that the appeal is defective because it fails to join the Starpoint Central School District as a necessary party whose interest may be affected by a determination of this appeal. Respondents further point out that petitioners have never asked the boards of education of the two school districts to alter the boundary pursuant to Education Law '1507. Finally, respondents contend that the determination of the district superintendent was properly made in full accord with Education Law '2215.

The appeal is untimely commenced. Petitioners have not offered any reason for their delay other than their unfamiliarity with the appellate process and their uncertainty as to how to proceed. It is well established that unfamiliarity with the rules of the Commissioner is not an adequate excuse for the untimely commencement of an appeal (Application of Shaw, 30 Ed Dept Rep 152).

Even if the appeal were timely commenced, I would dismiss it. Petitioners have presented no evidence that either respondent made any false representations to them prior to their purchase of 7087 Schultz Road, or in any way induced them to buy the property. Although petitioners suggest that they were told certain things by certain "officials" prior to their purchase, this claim is entirely unsubstantiated.

Respondent's decision recites the examination process which he followed. His research included an examination of the school district map for Niagara County certified as of July 1, 1943, and an examination of all subsequent orders of the Commissioner that might have affected the boundaries between Niagara-Wheatfield and Starpoint since that time. Having found no alterations, he concluded that petitioners' property has been within the Starpoint district for nearly fifty years.

The authority of the district superintendent under Education Law '2215 is limited in a case like this. It has been held that where district boundaries are not "indefinite or defective, or if the same shall be in dispute," the district superintendent has no authority to make amendments under '2215 (Board of Education v. Nyquist, 5 Ed Dept Rep 205, 51 Misc 2d 902, aff'd 28 AD2d 936). Although petitioners are unhappy with the boundary line as determined, the district superintendent has rightly found that the boundary line is clear and unambiguous.

There is no basis in the record before me for disturbing the limited determination of the district superintendent. Petitioners may, however, seek an alteration of the boundary line by the two affected school districts pursuant to Education Law ''1507-1509.

THE APPEAL IS DISMISSED.

END OF FILE