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Decision No. 14,363

Appeal of ANTHONY and ANNE SZPYLMAN from action of the Board of Education of the Alexander Central School District regarding its refusal to alter a school district boundary line.

Decision No. 14,363

(May 16, 2000)

Bouvier, O’Connor, Esqs., attorneys for petitioners, Kristin M. Baudo, Esq., of counsel

David W. Lippitt, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Alexander Central School District ("respondent") to alter its boundary line with the Attica Central School District ("Attica"). Petitioners seek an order annulling that determination and allowing the transfer of their property to the Attica district. The appeal must be dismissed.

Petitioners reside at 360 Tinkam Road within the Alexander Central School District, adjacent to the Attica Central School District. By letter dated December 28, 1999, petitioners’ counsel wrote to respondent’s superintendent, asking that respondent consent to the transfer of petitioners’ property to Attica. On January 19, 2000, respondent, at a regular board meeting, adopted a resolution refusing its consent to the proposed transfer.

Petitioners allege that a certified copy of the resolution was received by their attorneys on January 25, 2000. This appeal was commenced on February 24, 2000.

Petitioners argue that their neighbors on the east, south, and west are all located within the Attica Central School District, and that previously a parcel of land located to the south of their property was permitted to join the Attica Central School District.

Respondent contends that it has been unable to find any record of the alleged transfer of an adjoining property and states that it mailed a copy of the certified board resolution on January 20, 2000. Respondent’s answer sets forth a number of affirmative defenses, including untimeliness. Respondent points out that petitioners have not sought the consent of the Attica board of education, nor have they sought the consent of the District Superintendent as required by Education Law "1507. Respondent further contends that both the Attica Central School District and the district superintendent are necessary parties to such a proceeding, and that they have not been properly named or served as such.

The appeal must be dismissed. The factual situation in this matter is very similar to that found in Matter of Regan (34 Ed Dept Rep 72, Decision No. 13,237; reopening denied, 34 id. 393, Decision No. 13,357). It is legally insufficient to seek the consent only of the district from which petitioners seek to be released. There is no evidence in the record that the Attica Central School District has been approached about this matter, and no indication that the district superintendent’s approval has been sought. As in Regan, both the Attica Central School District, as the district which is proposed to receive the property, and the district superintendent, whose authority pursuant to Education Law ""1507 and 1508 has been bypassed, are necessary parties, and petitioners’ failure to name and serve them as respondents in this proceeding requires its dismissal.

In view of this disposition, it is unnecessary to discuss the parties’ other contentions, which I find without merit.

THE APPEAL IS DISMISSED.

END OF FILE