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Decision No. 14,643

Appeal of THOMAS SHEPPARD from action of the Board of Education of the Cornwall Central School District regarding proposed school construction.

Decision No. 14,643

(September 10, 2001)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges various actions of the Board of Education of the Cornwall Central School District ("respondent") with respect to the proposed construction of a new high school. The appeal must be dismissed.

At a referendum held on June 6, 2000, the voters of respondent"s district authorized the purchase of property, construction of a new high school and renovation of various other buildings (See, Appeal of Sheppard, 40 Ed Dept Rep __, Decision No. 14,579). Petitioner alleges that he attended an April 12, 2001 meeting of the Town of Cornwall Planning Board, where he claims that he learned that respondent had made changes in the proposed site plan that were not previously disclosed to district voters. He argues that respondent should be required to make the revised site plan public. Petitioner alleges that the site plan respondent presented to district voters before the referendum showed access to the new high school over a "dedicated" access road leading directly to Route 94. He contends that the site plan displayed at the town planning board meeting indicated that the district would build a new public road parallel to Route 94 and a connecting entryway from that new road to the high school.

Petitioner states that this plan would require taxpayers to finance the construction of the new public road as well as a traffic light and other road improvements. Petitioner asserts that construction of the public road with district funds would benefit the developer from whom respondent proposes to purchase the high school site. He alleges that the public road would facilitate access to the developer"s remaining property, which the developer intends to subdivide, and would save the developer the expense of constructing other access roads. Similarly, petitioner claims that respondent intends to grant the developer the right to tap into water and sewer lines to be installed for the new high school. He argues that these plans would improperly allow the developer to benefit from the expenditure of district funds.

Petitioner further argues that it is arbitrary and capricious for respondent to spend district money to build a public road that will benefit the developer when it has recognized that it may not have sufficient funds to construct all the elements originally planned for the new high school. Petitioner also contends that the developer"s proposed subdivision would create more traffic around the new high school and that a new traffic study should be conducted. Petitioner requested that the Commissioner order respondent to postpone the closing on the proposed high school site pending resolution of this appeal. His request for interim relief was denied on May 3, 2001.

Respondent contends that all of its actions were proper and within its authority under the resolution approved by district voters. It argues that petitioner has failed to meet his burden of proof because he relies on conclusory statements and newspaper articles rather than sworn pleadings and affidavits. Respondent also asserts that petitioner"s claims that it is affording an improper benefit to a private developer are premature because no contract to purchase the proposed high school site has been made and the closing initially planned for late April 2001 has been postponed. Similarly, respondent argues that petitioner"s claims that certain features may be omitted from the high school are premature because bid specifications have not yet been prepared for the high school construction. Respondent also asserts that, to the extent that petitioner seeks to challenge actions that were taken more than 30 days before the petition was filed, the appeal is untimely. Respondent further contends that the Commissioner of Education is not authorized to address the alleged need for an additional traffic study because State Education Department staff conducted a review of the proposed construction under the State Environmental Quality Review Act ("SEQRA").

In addition, respondent asserts that all aspects of the building project were planned to benefit the school district and that all public money is being spent for public purposes. Respondent contends that it has always intended to dedicate the high school access road to the Town of Cornwall as a public road. (It appears that respondent refers to the entryway to the new high school from Route 94 and not to any new public road parallel to Route 94.) Respondent argues that this will benefit the district taxpayers because the Town, which already owns highway maintenance and plowing equipment and has a staff trained to perform those duties, will be responsible for maintaining the road. Respondent also asserts that only the "appropriate municipal authorities" will decide whether other parties can tap into the water and sewer lines constructed for the high school. Respondent notes that it plans to obtain an easement from the developer to run water and sewer lines across property adjacent to the high school to save money by reducing the length of the lines.

Petitioner"s claims regarding the anticipated terms of agreement between respondent and the developer for purchase of the high school site must be dismissed as premature. It is well established that the Commissioner will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of Karpen, 40 Ed Dept Rep __, Decision No. 14,460; Appeal of Embler, et al., 40 id. __, Decision No. 14,406; Appeal of WNI Sales, 38 id. 822, Decision No. 14,152). The record reveals that respondent has not yet executed a contract for purchase of the property required for the proposed new high school. Similarly, petitioner"s claim that respondent intends to omit certain elements from the proposed new high school is premature and speculative. According to respondent"s affidavits, final decisions about the configuration of the new high school have not been made, bid specifications have not been prepared and contracts have not been awarded. Therefore, this claim must be dismissed.

Even if a contract and subdivision plan were in place, I would not entertain petitioner"s request that I compel respondent to conduct an additional traffic study. State Education Department staff reviewed respondent"s proposed construction project, including traffic issues, under SEQRA. It is well settled that Education Law "310 does not authorize an appeal to the Commissioner from actions taken by staff of the State Education Department (Appeal of Sheppard, supra; Appeal of Karpen, supra; Appeal of Molloy College, 33 Ed Dept Rep 361, Decision No. 13,078).

THE APPEAL IS DISMISSED.

END OF FILE