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Decision No. 14,460

Appeal of DANIEL KARPEN from action of the Board of Education of the Cold Spring Harbor Central School District regarding use of district land and school construction.

Decision No. 14,460

(September 12, 2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

MILLS, Commissioner.--In two separate appeals, petitioner challenges actions by the Board of Education of the Cold Spring Harbor Central School District ("respondent") relating to construction projects involving expansion of the district's athletic fields, a proposal for public use of the athletic facilities, a proposed concession/comfort station at Cold Spring Harbor High School and various construction projects at other district schools. Because the issues in the two appeals are related, they are consolidated for decision. The appeals must be dismissed.

In April 1997, respondent approved a proposed budget for the 1997-98 school year that included a plan to expand the district's athletic fields as well as construction projects at several of its schools. On November 9, 1999, the Town Board of the Town of Huntington ("town") passed a resolution granting its supervisor the authority to execute an agreement with respondent for use of the district's athletic fields and field house. In March 2000, respondent published a legal notice in local newspapers for bidders to perform the work necessary to carry out the construction of a proposed concession/comfort station, the cost of which was included in the proposed 1999-2000 school budget.

On November 30, 1999, petitioner commenced the first appeal alleging that respondent failed to provide the town with a written request to place the November 9, 1999 resolution on the town board's agenda, failed to provide the town with sufficient documentation to support the town board's determination that the athletic field expansion was a Type II action under the State Environmental Quality Review Act ("SEQRA") and that respondent has failed to meet with town officials to negotiate the terms of the use of the district's athletic fields. Petitioner argues that the athletic field expansion was really a SEQRA Type I action, requiring a much stricter level of environmental review than Type II actions, because of the extensive nature of the proposed project. Petitioner requests a determination that the April 1997 budget resolution and respondent’s subsequent acts were arbitrary, capricious and in violation of SEQRA, that respondent failed to provide the town with written documentation required by SEQRA, that the town was not an involved agency for the purposes of SEQRA and that the respondent cannot enter into an agreement with the town for use of the district's athletic fields. Petitioner also requests that I order respondent to restore the site of the athletic field expansion to its former condition. Petitioner’s request for interim relief to block any agreement for use of respondent's athletic facilities was denied on December 23, 1999.

On March 28, 2000, petitioner commenced a second appeal which contends that the legal notice and invitation to bidders published by respondent with regard to the proposed concession/comfort station are defective because they cite a non-existent regulation and state that the construction projects are SEQRA Type II projects. Petitioner again argues that the athletic field expansion was not a Type II project. Petitioner requests a determination that the bidding and proposed construction of the concession/comfort station, and the related published notices were arbitrary, capricious and in violation of SEQRA. Petitioner’s request for interim relief to prevent respondent from awarding any contracts or taking any actions in furtherance of the contested construction projects and to prevent respondent from presenting its plan to district voters was denied on April 11, 2000. Petitioner also submitted an amended petition challenging actions taken by respondent at its April 4, 2000 meeting with regard to the proposed construction projects.

Respondent denies that it was under any obligation to provide the town with documents that petitioner alleges should have been submitted to aid the town in its SEQRA determination. Respondent contends that it has not entered into any licensure agreement with the town for use of the district's athletic fields, nor has any such agreement been presented for its consideration. Respondent further contends that the New York State Education Department ("SED") acted as lead agency for the contested projects and determined that each were SEQRA Type II actions. Respondent argues that the appeals are untimely, fail to state a cause of action, that the Commissioner of Education cannot conduct appeals from SED staff actions, that the first appeal is premature with regard to an agreement with the town and that petitioner has failed to establish that respondent acted improperly. Respondent also objects to petitioner’s submission of an amended petition without prior permission.

Initially, I must address several submissions petitioner made in relation to the second appeal. Petitioner submitted an amended petition challenging actions by respondent at its April 4, 2000 meeting with regard to the proposed construction projects. Petitioner contends that these actions violated a stay order he apparently believes was in effect simply because he requested it in his petition. As noted above, his request for interim relief was denied and no stay order was issued. Therefore, the amended petition is irrelevant to these appeals and I will not consider it in making my determination in this matter.

Petitioner also submitted a "verified response" which reargues the same points he made in the petition and adds several new allegations. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Adriatico, 39 Ed Dept Rep 248, Decision No. 14,228; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133; Appeal of John W., 37 id. 713, Decision No. 13,965). Therefore, while I have reviewed petitioner’s reply, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer. Likewise, I note that petitioner failed to obtain permission before he belatedly submitted his memorandum of law as required by 8 NYCRR "276.4. I also note that this document is virtually identical to the verified response and contains the same flaws. Therefore, although I have reviewed it, I have not considered that document in making this determination.

Petitioner’s complaints regarding respondent’s April 1997 approval of a proposed 1997-98 school budget that included provisions of the expansion of the district's athletic fields must be dismissed as untimely. An appeal to the Commissioner of Education must be brought within 30 days from the making of the decision or the performance of the act complained of, except for good cause shown in the petition (8 NYCRR "275.16). Petitioner has not offered any reason for the nearly two and one-half year delay before challenging that action. Therefore, the portions of the appeal challenging respondent's April 1997 budget resolution are dismissed as untimely.

Petitioner’s complaint regarding the possible agreement between respondent and the town for use of the district's athletic facilities must be dismissed as premature. It is well established that I will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of WNI Sales, 38 Ed Dept Rep 822, Decision No. 14,152; Appeal of Jacobson, 37 id. 75, Decision No. 13,808). Petitioner merely submits a copy of a town resolution granting authority to a town official to act to execute an agreement. There is no evidence that respondent has taken any actions or demonstrated any intention to actually enter into such an agreement. Therefore, this claim must be dismissed.

Petitioner’s remaining arguments relate to alleged violations of SEQRA. Petitioner maintains that a number of respondent’s construction projects and proposed projects have violated SEQRA and its accompanying regulations. Petitioner also argues that two March 2000 notices published by respondent violate SEQRA by misstating the appropriate regulation and by stating that the proposed concession/comfort station is a Type II project. Respondent submits numerous documents showing that SED acted as the SEQRA lead agency for these projects and, in each case, determined that they were Type II projects. Respondent also submits a September 26, 1997 letter from the New York State Department of Environmental Conservation ("DEC") to petitioner stating that the review by SED of the athletic field expansion project was proper, as was the conclusion that it was not so extensive as to be considered a Type I project.

The appeal must be dismissed as it relates to these claimed SEQRA violations. It is well settled that Education Law "310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Matter of the Board of Education of the City School District of the City of Rome, 23 Ed Dept Rep 382, Decision No. 11,253, aff'd sub nom.Board of Ed., Rome CSD v. Ambach and Polizzi, 118 AD2d 932; Appeal of Molloy College, 33 Ed Dept Rep 361, Decision No. 13,078). SED staff reviewed each of respondent’s construction projects for SEQRA compliance. Therefore, I cannot review these determinations in this context. Furthermore, the DEC letter to petitioner also informed him that the only recourse available to him to challenge SEQRA determinations is to file a lawsuit in State court pursuant to Article 78 of the New York Civil Practice Law and Rules.

THE APPEALS ARE DISMISSED.

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