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Decision No. 14,653

Appeal of ROY A. MALLETTE from action of the Board of Education of the North Syracuse Central School District regarding an option to acquire real property.

Decision No. 14,653

(October 31, 2001)

Bond, Schoeneck & King, LLP, attorneys for respondent, Donald E. Budman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a resolution adopted by the Board of Education of the North Syracuse Central School District ("respondent") regarding an option to acquire real property. The appeal must be dismissed.

On March 19, 2001, respondent adopted a resolution that, interalia: (1) approved a plan for the Cicero Local Development Corporation ("CLDC") to issue bonds on behalf of the district, the proceeds of which are to be used to construct a family recreation center, located in the Town of Cicero, New York ("the facility"); (2) authorized the district to accept an exclusive option to acquire the facility before the bonds are retired by either escrowing or paying the amount required to retire the bonds with interest; and (3) authorized the district to accept an exclusive option to acquire the facility, without further payment, upon retirement of the bonds. The financing plan provides for the CLDC to issue bonds on behalf of the district in order for the bonds to qualify as tax-exempt obligations pursuant to the Internal Revenue Code. The resolution, however, specifies that "the financing of the facility imposes no obligation, burden or imposition upon the district" and further specifies that "the bonds of the corporation shall not constitute a debt of the district..."

Petitioner commenced this appeal, alleging that "[i]t is my assumption that anything of this magnitude should have been placed before the voters with a permissive referendum." Because the matter was not placed before the voters in a referendum, petitioner asks that I invalidate the resolution.

Respondent asserts that the appeal is time barred; that petitioner has failed to join necessary parties; that the petition fails to state a claim upon which relief can be granted; and, finally, that the board complied fully with the law when it adopted the resolution.

The appeal must be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action or decision complained of, unless excused for good cause shown (8 NYCRR "275.16). Here, respondent adopted the resolution at issue on March 19, 2001. This appeal was not commenced until May 31, 2001, considerably more than 30 days after respondent adopted the resolution, and without any explanation for the delay. Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed because petitioner has failed to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Sheppard, 41 Ed Dept Rep ____, Decision No. 14,627; Application of Dulkiewicz, 40 id. ____, Decision No. 14,590). If I were to annul the resolution adopted by respondent, as requested by petitioner, the right of the CLDC and the Town of Cicero to issue tax-exempt bonds to finance the development, construction and operation of a family recreation center would be adversely affected. Petitioner"s failure to join those parties therefore warrants dismissal.

In light of these determinations, I need not address the parties" remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE