Decision No. 16,478
Appeal of ROBERT S. BUGBEE, SR., and ROBERT S. BUGBEE, JR., from action ofthe Board of Education of the AuSable Valley Central School District, Paul D.Savage, II, superintendent of the AuSable Valley Central School District,the Board of Education of the Lake Placid Central School District and Dr. Randy C. Richards, superintendent of the Lake Placid Central School District, regarding a school districtboundary.
Decision No. 16,478
(April 29, 2013)
Briggs Norfolk LLP, attorneys for petitioners, Jenifer R.Briggs, Esq., of counsel
Stafford, Piller, Murnane, Plimpton, Kelleher & TrombleyPLLC, attorneys for respondents, Jacqueline M. Kelleher, Esq., of counsel
KING, JR., Commissioner.--Petitioners appeal the refusal of the Board of Education of AuSable Valley CentralSchool District (“AuSable board”), and Superintendent Paul D. Savage, II (“Savage”) (collectively the “AuSable respondents”), the Board of Education of the Lake PlacidCentral School District (“Lake Placid board”), and superintendent Dr. Randy C. Richards, to grant their request to adjust or alter an existing boundary line between the AuSable Valley Central School District (“AVCSD”) and the Lake Placid Central School District (“LPCSD”). The appeal must be dismissed.
Petitioners own five parcels of land currently located in the AVCSD and one parcel located in the LPCSD.
At a meeting held on January 20, 2010, petitioner Robert S. Bugbee, Jr., requested that the AuSable board modify the boundary line between his parcels so that all of his property would fall within the LPCSD. By letter datedFebruary 9, 2010, the AuSable board denied his request.
By letter dated February 16, 2011 to the superintendents of both districts, petitioners requested aboundary line determination pursuant to Education Law §2215or, in the alternative, a boundary line adjustment pursuant to Education Law §1507. By letter dated March 21, 2011,Savage and the AuSable board denied their request.  This appeal ensued.
Petitioners allege that the existing boundary linecreates hardships for “any” children residing on their properties, and that adjusting the boundary line would reduce busing expenses for the AVCSD, while not affecting busing costs for the LPCSD. Petitioners maintain that at one time their properties were within the LPCSD and were transferred to the AVCSD without notice and without compliance with Education Law §1506. Petitioners contend that the existing boundary line was never formally defined as required by Education Law §2215.
Petitioners request that I order the AuSable and Lake Placid boards to establish a formal boundary line in compliance with Education Law §2215 and, thereafter, to comply with Education Law §1506. Petitioners also request that I set aside the determination of the AuSable board denying the boundary line adjustment and order the AuSable board and the Lake Placid board to modify the boundary line so as to include petitioners’ properties in the LPCSD.
The AuSable respondents contend that the appeal must be dismissed as untimely and for failure to join necessary parties. They maintain that petitioners have failed to meet their burden of proof and have failed to demonstrate that any child will be adversely affected if the boundary line is not adjusted. Finally, the AuSable respondents allege that their actions were not arbitrary and capricious.
I will first address several procedural matters. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appealof Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days formailing, excluding Sundays and holidays (Appeal of K.W., 48Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning andCoburn-Bruning, 48 id. 325, Decision No. 15,872).
The record reflects that, although Robert Bugbee, Jr.,made a request for a boundary line alteration on January 20, 2010, Robert Bugbee, Sr., made his first request by letter dated February 16, 2011. This request was denied by letter dated March 21, 2011. Affording the usual five days for mailing, this appeal was commenced within the required 30 days, on April 21, 2011. Therefore, I decline todismiss the appeal as untimely.
The AuSable respondents also allege that the appeal must be dismissed for failure to join the LPCSD as anecessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of apetitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934;Appeal of Miller, 48 id. 465, Decision No. 15,917; Appealof Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter adefense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879). The Lake Placid board was named as a respondent in the caption and was properly served with the notice of petition and petition. Therefore, I decline to dismiss the appeal for failure to join the LPCSD as a necessary party.
The AuSable respondents maintain that the appeal must be dismissed for failure to join the Board of Cooperative Educational Services for Franklin, Essex and Hamilton Counties and the Board of Cooperative Educational Services for Clinton, Essex, Warren and Washington Counties (“BOCES”) as necessary parties, contending that the district superintendent of a BOCES is responsible for identifying or clarifying school district boundaries pursuant to Education Law §2215. Education Law §2215 (1) provides, in part, “A district superintendent of schools shall ... ascertain whether the boundaries of the school districts within his supervisory district are definitelyand plainly described ... and in case the record of the boundaries of any school district shall be found indefinite or defective, or if the same shall be in dispute, then tocause the same to be amended....” To the extent that petitioners are asserting abrogation of any district superintendent’s duties and responsibilities under Education Law §2215, the district superintendent, and not the BOCES, is a necessary party. However, petitioners also have not named or served either district superintendent.  Therefore, to the extent petitioners’ claims rely on Education Law §2215, the appeal must be dismissed.
Moreover, to the extent petitioners allege that the boundary is indefinite or incorrect, the record indicatesthat they have not sought clarification by the districtsuperintendent pursuant to Education Law §2215. The Commissioner will not render an advisory opinion on anissue before it becomes justiciable (Appeal of B.R. andM.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal ofLachler, 47 id. 455, Decision No. 15,752).
Finally, to the extent petitioners challenge the AuSable board’s refusal to consent to alteration of the boundary between the two school districts, the appeal must be dismissed on the merits. Pursuant to Education Law §1507, the district superintendent is authorized to alter school district boundaries with the consent of the boards of education involved (Appeal of Roberta, 38 Ed Dept Rep 690, Decision No. 14,119; Appeal of Bradley Industrial Park, et al., 35 id. 397, Decision No. 13,583; judgment granted dismissing petition, Bradley Industrial Park, et al. v Mills, Sup. Ct., Albany Co. [Ceresia, J.], March 31,1997, n.o.r.; Appeal of McCord, 19 id. 509, Decision No.10,230; Appeal of Skeele, Jr., 19 id. 141, Decision No.10,069). If a board of education refuses to consent to such boundary alteration, an aggrieved party may seek review of the board’s refusal by the Commissioner of Education pursuant to Education Law §310 as petitioners do here. The Commissioner of Education may set aside aboard’s refusal to consent to a boundary change where hefinds that such refusal is unreasonable, based on consideration of factors such as the educational interests of the children involved and the effect of the transfer on the student population, tax revenues and educational program of the school district from which property would be transferred (see Appeals of Salerni, et al., 27 Ed Dept Rep 393, Decision No. 11,987; judgment granted dismissing petition, Schuylerville CSD v Commissioner of Education, et al., Sup. Ct., Albany Co. [Cheeseman, J.], October 26,1988, n.o.r.; aff’d 152 AD2d 241 [3d Dept. 1989]; Appeal of
McCord, 19 id. 509, Decision No. 10,230; Appeal of Schaeffer, 9 id. 57, Decision No. 8,054), with the educational interest of the children affected being the “foremost consideration” (Appeals of the Board of Education of the Shenendehowa Central School District, et al., 29 Ed Dept Rep 355, Decision No. 12,318; judgment granted dismissing petition, Shenendehowa CSD v Bd. of Ed.,Waterford-Halfmoon UFSD and Sobol, Sup. Ct., Albany Co.[Harris, J.], January 10, 1991; aff’d 182 AD2d 944 [3dDept. 1992]).
On the record before me, however, I do not find that petitioners have established any basis for setting aside the decision of the AuSable board in rejecting petitioners’request that it consent to a change in the school district’s boundary. The record reflects that there are no children currently residing on the relevant parcels,currently located in the AVCSD. Moreover, petitioners themselves acknowledge in their reply that there is “no significant difference in the quality of education between the LPCSD and AVCSD.” Finally, petitioners offer no evidence to refute the AuSable board’s assertion that the proposed alteration would have a negative financial impacton the district. Therefore, on this record, there is nobasis to support the substitution of my judgment for that of the AuSable respondents.
THE APPEAL IS DISMISSED.
END OF FILE
 The Lake Placid board and its superintendent did not respond to petitioner’s request and have not submitted an answer in this appeal.By letter dated May 4, 2011, the district indicated that it takes no position with regard to any of the matters raised in the appeal.
 It appears petitioners may be misinterpreting “district superintendent” within the meaning of Education Law §2215 to mean thesuperintendent of schools for AVCSD and/or LPCSD.