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Decision No. 14,381

Appeal of DEBORAH HANSON from action of the Board of Education of the Schalmont Central School District regarding a special district meeting concerning the construction of a new elementary school.

Decision No. 14,381

(June 6, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Schalmont Central School District ("respondent") to hold a special district meeting concerning the construction of a new elementary school. The appeal must be dismissed.

Petitioner is a resident of respondent’s district. She was a member of respondent’s Citizens Advisory Committee, which was formed in September 1998 to consider options to address increasing enrollment in the district. This committee began meeting in the early fall of 1998 and continued meeting throughout winter 1999. Sixteen options were considered by the committee, two of which were similar. Option 1 involved closing three smaller elementary schools, enlarging Jefferson Elementary School, and constructing a new 600 pupil elementary school at the current high school/middle school site. Option 16 was essentially the same as Option 1, with the exception that the proposed new elementary school would be constructed at a "location to be determined."

At a January 25, 1999 meeting, respondent board determined that Option 16 most effectively met the needs of the district. Shortly thereafter, respondent entered into negotiations with the owner of a 26.3 acre site immediately adjacent to the existing high school/middle school site. Respondent ultimately reached an agreement to purchase this property, contingent upon the approval of the voters at a special district meeting.

On March 8, 1999 respondent announced the purchase offer for the 26.3 acre site, as well as the scheduling of a special district meeting for April 27, 1999. The purpose of the special meeting was to allow district voters to determine whether or not to purchase the property adjacent to the existing high school/middle school, and to approve the construction of a new elementary school. Petitioner commenced this appeal on April 7, 1999. Her petition specifically requested an order staying the special district meeting scheduled for April 27, 1999. This request for interim relief was denied on April 14, 1999. The proposal to build a new elementary school was rejected by district voters on April 27, 1999.

Petitioner claims that respondent has misrepresented the location of the proposed new elementary school, and misled the public in this matter. She contends that the project described in the proposition is not the same project approved by respondent on January 25, 1999. She alleges that the draft environmental impact statement (DEIS), which was submitted to the State Education Department as part of a required environmental review, states that the new elementary school will be on the current high school/middle school campus. She claims that respondent selected Option 16, which sited the new school at a "location to be determined," not Option 1, which sited the new school on the current high school/middle school campus. Thus, petitioner maintains that respondent has failed to clarify the location of the proposed new school.

Respondent contends that the new elementary school would be located on the new 26.3 acre site, should the voters approve its purchase at the special district meeting. It asserts that this site is the "location to be determined" referred to in Option 16. Respondent argues that, because this property is contiguous with the current high school/middle school campus, the new property was considered part of the current high school/middle school property for purposes of an environmental impact study. Respondent further argues that petitioner has misconstrued the DEIS conducted in association with this project. Respondent additionally claims, that because the purchase of the property is an issue before the voters at the special district meeting, it is obvious that the proposed construction is intended to occur at the new location.

Respondent also contends that it planned to distribute a final newsletter to all district voters, which contains a map, indicating the location of the proposed new elementary school. Respondent maintains that the map and newsletter clearly indicate the location of the proposed new school in relation to the existing high school/middle school campus.

Finally, respondent alleges that the Commissioner lacks jurisdiction to hear this appeal, that the petitioner fails to state a claim upon which relief may be granted, and that this appeal is moot.

The appeal must be dismissed as moot. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Studley, 38 Ed Dept Rep 258, Decision No. 14,028; Appeal of Lascala, 38 id. 16, Decision No. 13,974; Appeal of Schuler, 37 id. 512, Decision No. 13,915). This is especially true when petitioner has sought interim relief as to all or most of his claim, and that relief has been denied (see, e.g., Appeal of Studley, supra; Appeal of Lascala, supra; Appeal of McConnon, 37 Ed Dept Rep 691, Decision No. 13,959). In this case, the referendum went forward on April 27, 1999, at which time the voters of the district defeated the proposal to purchase property and to construct a new elementary school. Therefore, no outstanding issue remains.

Even if this appeal were not moot, I would still dismiss it on the merits. My review of the record does not lead me to the conclusion that respondent misrepresented the location of the proposed new elementary school or has misled the public on this matter. Though the DEIS states that the new elementary school will be located on the high school/middle school site, it goes on to explain that, "[a]dditional land contiguous to the existing school district property will be purchased for this purpose." There are further references throughout the DEIS to the purchase of new property for the new elementary school. Finally, the DEIS also contains a map of the site, which clearly indicates the land to be acquired and the location of the proposed new elementary school. The document in its entirety leaves no doubt as to the exact location of the new elementary school.

Additionally, respondent submitted a draft of a final newsletter concerning the proposed new school. This document also makes it clear that property must be acquired for the new elementary school, and that this property is adjacent to or contiguous with the current middle school/high school campus. Petitioner commenced this appeal 20 days before the date of the special meeting. Respondent would have had ample time to mail out the newsletter, which clarifies the site of the proposed new elementary school. Thus, contrary to petitioner’s allegations, the record contains no evidence that respondent misrepresented the project location or misled the public.

THE APPEAL IS DISMISSED.

END OF FILE