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Decision No. 14,097

Appeal of the SOLE TRUSTEE OF THE HICKORY-SOUTH MOUNTAIN COMMON SCHOOL DISTRICT NO. 1 from action of the Board of Education of the Susquehanna Valley Central School District relating to school taxes.

Decision No. 14,097

(March 26, 1999)

Hogan & Sarzynski, Esqs., attorneys for petitioner, John B. Hogan, Esq., of counsel

Coughlin & Gerhart, Esqs., attorneys for respondent, Mark S. Gorgos, Esq., of counsel

MILLS, Commissioner.--Petitioner, the sole trustee of the Hickory-South Mountain Common School District No. 1, appeals from the refusal of respondent, the Board of Education of the Susquehanna Valley Central School District, to remit certain school taxes paid to respondent. Petitioner contends that pursuant to Education Law "3203 the Hickory-South Mountain Common School District No. 1 "Hickory-South Mountain") is entitled to the school taxes levied by respondent upon certain property in the Susquehanna Valley Central School District ("Susquehanna Valley"). The appeal must be sustained.

Pursuant to the provisions of Education Law "2040, the voters of Hickory-South Mountain have authorized petitioner to contract with the Binghamton City School District for the education of its students. Petitioner received a billing statement from the Board of Education of the Binghamton City School District, dated December 16, 1996, for the education of students from Hickory-South Mountain during the fall semester of the 1996-97 school year, and a subsequent billing statement, dated March 4, 1997, for the spring semester of the 1996-97 school year. Among those students listed in the billings, was the child of a family owning and residing on certain property located in the Town of Binghamton, designated on the Broome County Tax Map, Town of Binghamton, as parcels Nos. 176.09-3-26 ("No. 26") and 176.09-3-34 ("No. 34"). These parcels are contiguous, with No. 26 located within Susquehanna Valley and No. 34 located within Hickory-South Mountain.

Petitioner alleges that she was unaware that the child was attending the Binghamton City School District until she received the billing statements. By letter dated July 18, 1997, petitioner requested payment of the school taxes respondent received on the property in question for the 1996-97 school year. When respondent failed to make payment, petitioner commenced this appeal by serving a copy of the petition on respondent on July 29, 1997.

Petitioner contends that Hickory-South Mountain is entitled to payment pursuant to Education Law "3203. That statute reads:

"3203. Selection of school for attendance of children when district line intersects a dwelling

1. The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation on or before August first in any year and thereafter or, in the case of a single family unit, when such dwelling unit is built or when its owner-occupant's first child commences attending school from such residence and thereafter whenever the ownership of such taxable property changes hands in an arms length transaction or, likewise, the first child of its new owner-occupant first commences attending school from such residence and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

2. School taxes on such property shall continue to be levied and collected without reference to the aforesaid designation, but the school authorities of the district that levies and collects a tax upon such property and does not furnish instructional service to the children residing on such property shall pay to the district designated, in which such children are received and instructed, the amount of the tax on such property so levied and collected. If any such district shall fail or refuse on demand to pay the amount of any tax so collected, the school authorities of the district designated and furnishing the instructional service may recover the amount in an action therefor.

3. A designation made as provided in this section shall continue until a new designation is made or until the district superintendent or superintendents having jurisdiction over the districts affected shall otherwise order in a proceeding for the alteration of the boundaries of the districts, but no subsequent designation may be made in any school year after August first until the close of that school year.

Respondent denies that Hickory-South Mountain is entitled to payment on the ground that the present owners of the property never filed a designation of the school district that their child would attend during the 1996-97 school year. Respondent also contends that the petition should be dismissed for petitioner's failure to serve a notice of claim pursuant to Education Law "3813, as well as for laches.

Respondent's reliance on the notice of claim provision of Education Law "3813 is misplaced. An appeal to the Commissioner of Education is not an "action or special proceeding" within the meaning of Education Law "3813 (Appeal of Board of Education of the Hilton Central School District, 38 Ed Dept Rep __, Decision No. 14079, dated February 18, 1999; Appeal of Monk, 29 id. 444; Matter of Shusterman, 18 id. 516).

Respondent's defense of laches is, likewise, without merit. Education Law "3203(2) provides that if a school district shall fail or refuse on demand to pay the amount of tax collected, the school authorities of the designated district may recover the amount in an action therefor. The statute does not provide a date by which the designated school district shall demand payment. However, previous Commissioners' decisions have held that claims for foster care tuition payments pursuant to Education Law "3202(4)(a) that are owed for a particular school year become due at the completion of that school year, and an appeal to the Commissioner pursuant to Education Law "310 must be commenced within 30 days of the end of the school year (Matter of Sanfilippo, 24 Ed Dept Rep 81; Matter of Board of Education of the Cobleskill Central School District, 21 id. 648). Similarly, since this appeal concerns petitioner's attempt to recoup the tuition costs of educating the student in question during the 1996-97 school year by means of the school tax collected by respondent for such school year, I do not find a basis to dismiss this appeal for laches inasmuch as petitioner commenced her appeal on July 29, 1997, which is within 30 days after the end of the 1996-97 school year. In addition, a dismissal for laches is not warranted because, as discussed below, pursuant to statute the previous owner's designation continues in effect until a new designation is made, and it is undisputed that respondent had notice of such previous designation of Hickory-South Mountain as the school district of attendance.

Respondent's contention that Hickory-South Mountain is not entitled to payment on the ground that the present owners of the property never filed a designation is without merit. There is nothing in Education Law "3203 which requires that a new designation be filed upon a change in ownership of the property. To the contrary, Education Law "3203(3) provides in pertinent part that "[a] designation made pursuant to this section shall continue until a new designation is made." Education Law "3203(1) uses permissive language ("may designate") rather than mandatory language ("shall designate") and expressly provides in pertinent part that "...until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition."

It appears from the record that the property in question is the same property which was the subject of a previous dispute in Appeal of Common School District No. 1, 30 Ed Dept Rep 281. In that appeal the Commissioner found that Hickory-South Mountain was entitled to the school taxes collected by Susquehanna Valley for the 1989-90 school year because the owner of the property at that time had filed a designation which met the requirements of Education Law "3203. Therefore, pursuant to the statute, such designation remains in effect until a new designation is filed. There is no indication in the record that a new designation has been filed. Accordingly, pursuant to Education Law "3203(2) petitioner is entitled to receive from respondent the amount of the tax respondent levied and collected on the property for the 1996-97 school year.

THE APPEAL IS SUSTAINED.

END OF FILE

IT IS ORDERED that the Board of Education of the Susquehanna Valley Central School District pay to the Hickory-South Mountain Common School District No. 1 the amount of the school taxes levied and collected for property known as tax map designation 176.09-3-26 for the 1996-97 school year.

END OF FILE