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Decision No. 13,223

Appeal of the BOARD OF EDUCATION OF THE OGDENSBURG ENLARGED CITY SCHOOL DISTRICT, from action of Richard C. Callan, District Superintendent of the Sole Supervisory District of St. Lawrence and Lewis Counties, and the Board of Education of the Lisbon Central School District, regarding a school district boundary.

Decision No. 13,223

(July 20, 1994)

Hiscock & Barclay, Esqs., attorneys for petitioner, Marsha M. Schenck and James McGowan, III, Esqs., of counsel

Schwerzmann & Wise, P.C., attorneys for respondent board of education, Leslie Deming, Esq., of counsel

Kitay and Elmer, Esqs., attorneys for respondent district superintendent, John D. Elmer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the determination of the District Superintendent of the Sole Supervisory District of St. Lawrence and Lewis Counties ("respondent Callan") that established a boundary between the Ogdensburg Enlarged City School District ("petitioner") and the Lisbon Central School District ("respondent Lisbon"). The appeal must be sustained.

In March or April 1991, a controversy arose concerning territory that petitioner claims it annexed in 1901 ("disputed territory") which formerly belonged to the St. Lawrence State Asylum. In 1956, the Commissioner of Education ordered the consolidation of respondent Lisbon with Common School District #1. Respondent Lisbon claims that the disputed territory became part of its district at that time. On March 4, 1993, respondent Lisbon requested the intervention of respondent Callan to determine a disputed boundary pursuant to Education Law '2215(1). On August 3, 1993, respondent Callan rendered his determination in favor of respondent Lisbon. This appeal ensued.

Petitioner alleges that respondent Callan's determination is erroneous, constitutes an abuse of discretion and is arbitrary and capricious. Petitioner argues that respondent Callan's decision was based upon an erroneous 1943 Master Plan Atlas Map and the disputed territory has been under petitioner's control for ninety-two years.

Respondent Lisbon contends that the annexation by petitioner in 1901 did not automatically affect the annexation of the disputed territory into petitioner's school district and bases its own claim on the 1956 consolidation of Common School District #1. Respondent contends that the 1943 Master Plan Atlas Map correctly established its boundaries. Respondent also contends that the determination of the district superintendent was correct and was neither arbitrary nor capricious. Respondent Callan contends that he correctly exercised his authority in determining the boundary between the parties and that his determination was neither arbitrary nor capricious.

Petitioner's primary theory in support of its contention is that in 1901 the City of Ogdensburg annexed a portion of Common School District #1 and that annexation automatically changed the boundary of the Ogdensburg City School District. Petitioner supports its claim by showing that children residing in the disputed territory have been educated in petitioner's schools without the payment of tuition since 1901 and that residents of the disputed territory have voted in petitioner's school district elections since that time. Respondent, on the other hand, argues against this "automatic annexation" theory and claims that petitioner's boundaries were originally fixed by a special act of the State Legislature in 1857 (Chapter 382 of the Laws of 1857) and that those boundaries have remained unchanged to the present.

Petitioner's district was created by special legislation in 1857 (Chapter 382 of the Laws of 1857) which provided:

Section 1. All that territory comprised within the corporation limits of the village of Ogdensburg, lying in the town of Oswegatchie, and those parts of schools districts number one and twenty-one, of the town of Oswegatchie, lying without the said corporation limits, are hereby consolidated and organized into one school district, subject to the control of a board of education as hereinafter provided.

Chapter 382 was subsequently amended by Chapter 249 of the Laws of 1868 but that amendment did not affect Section 1 of Chapter 382. Chapter 249 expressly provided that Chapter 382 would apply after the Village of Ogdensburg was incorporated as a city and stated:

'30. Whenever the village of Ogdensburg shall be incorporated as a city, with or without additional territory, then this act shall apply to that corporation, the same as now to the village corporation, and the common council of said city shall take the place of the board of trustees, and shall be charged with all the responsibilities and duties, and privileges devolving upon said board of trustees by this act.

In 1901, the City of Ogdensburg annexed a tract of land belonging to the State Asylum pursuant to Chapter 340 of the Laws of 1901. The City of Ogdensburg's new boundaries included the disputed territory. Chapters 382 and 249 were still in effect in 1901 and since the statute creating petitioner's district included all territory within the village of Ogdensburg, which in 1868 became the City of Ogdensburg, the annexation which expanded the city boundary also expanded the city school district.

From my review of the record, respondent superintendent's determination was primarily made on the basis that the disputed territory appears in respondent Lisbon's district on the 1943 map. Respondent superintendent did not appear to give much credence to evidence other than the 1943 map which indicates that the disputed territory lies within petitioner's district.

Respondent points to General Municipal Law '715 which requires certain procedures to be followed for an annexation to affect a school district. However, that statute was enacted in 1964 and is not applicable to the situation that occurred in 1901.

I also find that petitioner and respondent Lisbon historically treated the disputed territory as within the Ogdensburg Enlarged City School District for over ninety-two years which creates a strong presumption that the property is within petitioner's district (Appeal of Salerni, 27 Ed Dept Rep 393; Schuylerville CSD v. Commissioner of Education, et al., Supreme Court, Albany County, Cheeseman, J., 1988, N.O.R.; aff'd 152 AD2d 241). Respondent Lisbon has offered no evidence that the disputed territory was ever considered a part of its district for educational, voting or taxation purposes.

Since respondent Callan's determination was based primarily on the 1943 map which I have held on previous occasions is not conclusive but merely a factor to be considered in addition to other evidence (Matter of City of Middletown, et al., 4 Ed Dept Rep 19; Matter of Town of Greenville, et al., 8 id. 11), and given that the historical and legal evidence presented by petitioner is persuasive, I find that the disputed territory is in fact within petitioner's boundaries.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

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