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Decision No. 12,981

Appeal of VINCENT J. EMILIO from action of the Board of Education of the Bronxville Union Free School District, relating to use of school property.

Decision No. 12,981

(August 3, 1993)

Daniel E. Katz, Esq., attorney for petitioner

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the decision of the Board of Education of the Bronxville Union Free School District to restrict through a permit system use of an outdoor running track (the track) at the Bronxville Public School when not in use for school purposes. Petitioner requests that I order respondent board to rescind its permit system as contrary to Education Law and as bad public policy and preclude respondent from receiving State funds for education until it complies with the law. The appeal must be dismissed.

Petitioner is a resident of the City of Mount Vernon, Westchester County, and is not a resident of the Bronxville Union Free School District. Respondent board of education adopted a new regulation on June 3, 1991, effective July 15, 1991, providing for a system of permits limiting the use of the track when it is not being used for school purposes. The board's regulation provides that all persons under the age of 19, resident or nonresident, may use the track without a permit or fee. All adults are required to obtain a permit, but permits are issued without charge to residents of the district, parents of tuition students, and employees of the district and the Village of Bronxville. Adult nonresidents are required to pay for the permit, and the total number of permits issued to nonresidents is capped at 200. The fee, initially set at $200, was reduced to $100 in July 1992.

Prior to the effective date of the permit system, the track was open to the public from 6:00 A.M. until 10:00 P.M., except during any school activity, including physical education and team practice on the track or on the interior field. Petitioner used the track prior to the implementation date for the permit system but has been unable to use the track subsequently because he does not own a permit.

The permit system was instituted because respondent felt the track was overcrowded. According to the board president, coaches complained that activities at the track were threatening the safety of students when students were using the track and the adjacent fields. The complaints included overcrowding to the point where people were pushing and shoving each other on the track. Also, there were reports that patrons of commercial health clubs were using the track. According to the board president, the volume of automobile traffic and illegal parking posed a safety risk to students and became a nuisance to the school and the school's residential neighbors.

Consequently, respondent adopted as one of its goals for 1990-91, the review of its policy and practice regarding the use of the track. In April 1991, respondent appointed a three-person committee of the board to investigate the situation and make a recommendation to the full board. The committee members interviewed faculty members, coaches, and members of the community; and observed conditions at the track. The committee confirmed that the track was overcrowded and recommended to the full board that its use by nonresident adults should be limited as a means of controlling overuse. A public hearing on the issue was held on May 20, 1991, and on June 3, 1991, respondent adopted the permit system which is the subject of this appeal.

Petitioner contends that the permit system should be struck down because it violates Education Law '414(1)(c) since that provision requires the use of the track to be nonexclusive and open to the general public; respondent board had no rational basis to attribute problems at the track to nonresidents; the permit system may not be justified as a rental, pursuant to Education Law '414(2); and the permit system has been selectively enforced because students of Concordia College who are nonresidents are permitted to use the track.

Respondent board contends that the permit system is a reasonable regulation of the use of its grounds; that the permit system does not violate Education Law '414(1)(c); that it may legally provide for a classification that distinguishes between residents and nonresidents; that the regulation at issue has a rational basis, is not arbitrary or capricious or in violation of the law; and that students of Concordia College are permitted to use the track based on an agreement between the college and the district to share recreational facilities.

Education Law '414(1) provides that schoolhouses and other district property shall be "in the custody and under the control and supervision" of the board of education and, among other things, authorizes the board of education to adopt reasonable regulations for the use of such property when it is not in use for school purposes. The statute lists the uses for which property may be used, including:

(c) For holding social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community; but such meetings, entertainment and uses shall be non-exclusive and shall be open to the general public.

Both parties before me contend that the language of Education Law '414(1)(c) is dispositive of this appeal. Petitioner argues that respondent's policy violates the requirement of paragraph (c) that the use be non-exclusive and open to the general public by limiting access to school property by nonresidents of the school district. Respondent argues that since paragraph (c) refers to "uses pertaining to the welfare of the community", the reference to the "general public" should be interpreted to mean the general public of the community; that is, of the school district.

Reading paragraph (c) in the context of '414 as a whole, and the provisions of the Education Law governing school districts generally, I can discern no evidence of legislative intent that a school district should be precluded from denying or limiting access to school property by nonresidents. The right to attend the schools of a school district is premised on residency (Education Law '3202[1]). As a general proposition, only residents of a school district may vote in school elections or serve as a member of a board of education (Education Law ''2012(3); 2102; 2603(3); 2553(1); 2590-c[3]). A school district is established to educate the children of its residents and is supported, in large part, by taxes levied on property owners within the school district. It would be anomalous to interpret the language of '414(1)(c) as compelling school districts to open up those uses of its property intended to promote the welfare of the community served by the school district to those who do not reside in the community. I interpret the language of paragraph (c) to mean only that any meeting, entertainment or other use for the benefit of the community must be non-exclusive and open to the general public of the school district (Matter of Mauersberger, 50 St Dept Rep 501).

I find, therefore, that respondent's policy of limiting access by nonresidents to the track is authorized by Education Law '414(1)(c). Respondent is authorized pursuant to Education Law '414(2) to determine the terms and conditions of the use of property under '414(1)(c), including the imposition of a "rental at least in an amount sufficient to cover all resulting expenses" (Opns St Comp, 1981, No. 81 - 46). Respondent may therefore charge a fee for the use of the track, and petitioner has failed to establish the fee imposed by respondent is unreasonable.

In any case, even if I had concluded that respondent lacked authority to deny access to nonresidents under Education Law '414(1)(c), there is another provision of '414 that applies to the use proposed by petitioner and contains no requirement that the use be non-exclusive or open to the general public. Education Law '414(1)(h) authorizes the use of school property "[f]or recreation, physical training and athletics, including competitive athletic contests of children attending a private, nonprofit school." On its face, this provision clearly applies to the use of a school track by individual joggers. Although the legislative history of this provision of law (Chapter 722 of the Laws of 1975) indicates that its primary purpose was to authorize competitive athletic contests of children attending a private nonprofit school, the language of the statute clearly encompasses a broader purpose, namely recreation, physical training and athletics.

Notably, Education Law 414(1)(h) does not require a school district to open its property and facilities to the general public, when it is used by an individual for recreation, physical training and athletics. Therefore, I find that this statute provides independent authority to limit the use of the track by nonresidents who are using it for individual recreation.

Petitioner contends that respondent has selectively enforced its permit system by permitting students from nearby Concordia College to use the track, although they may not be residents of the district. Respondent contends that it permits Concordia College students to use the track without a fee, pursuant to an agreement with the college to permit students of both institutions to share recreational facilities. Respondent has established a reasonable basis to distinguish nonresident Concordia College students from other nonresidents. Consequently, I do not find that respondent has enforced its permit system in an unreasonable manner. However, there is no evidence in the record that respondent formally adopted a regulation waiving the permit fee for nonresident Concordia College students. Any criteria the school district chooses to apply regarding the use of school property must be formally adopted (Appeal of Shakow, 26 Ed Dept Rep 520). Accordingly, respondent's policy on the use of the school track by Concordia College students should be adopted as part of the board's formally adopted regulations.

THE APPEAL IS DISMISSED.

END OF FILE