Appeal of KENDRA and WILLIAM MINARD, on behalf of their children VICTORIA,WILLIAM and GABRIELLE, from action of the Board of Education of the Highland Central School District regarding a school district boundary.

Decision No. 16,529

(August 28, 2013)

Jacobowitz and Gubits, LLP, attorneys for petitioners, Mark

T. Starkman, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Garrett L. Silviera, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Highland Central School District (“respondent”) to deny their request to admit their children to its schools pursuant to Education Law §3203. The appeal must be dismissed.

Petitioners live on property located entirely within the town of Marlboro. They allege that their property is intersected by the boundary between the Marlboro Central School District (“Marlboro”) and respondent’s district.

Petitioners’ children attended a private school located in respondent’s district until the end of the 20112012 school year when the private school closed. During that time, Marlboro provided petitioners’ children with transportation and also reimbursed respondent for the costs of health and welfare services for petitioners’ children while at the private school.

By letter dated July 19, 2012, petitioners notified Marlboro and respondent of their intent to enroll their children in respondent’s schools for the 2012-2013 school year. On November 13, 2012, after conducting an investigation, respondent’s superintendent met with petitioner Kendra Minard, along with their attorneys. By letter dated December 13, 2012, respondent’s director of student services notified petitioners of her final determination that their property was outside the district’s boundaries and their children, therefore, were not entitled to attend its schools. This appeal was commenced on January 14, 2013. The record indicates that, by letter dated January 17 2013, the superintendent informed petitioners that their children would be permitted

to continue to attend school in the district through the end of the 2012-2013 school year. Consequently, petitioners’ request for interim relief in this matter was rendered moot.

Petitioners assert that the school district boundary between respondent and Marlboro intersects their property and, therefore, they are entitled to elect to send their children to either school district pursuant to Education Law §3203. Petitioners claim that they timely notified both districts of their intention to send their children to respondent’s schools for the 2012-2013 school year. They request a determination that their children are residents of respondent’s district and, thus, entitled to attend respondent’s schools without payment of tuition.

Respondent contends that petitioners failed to join a necessary party and also failed to meet their burden of demonstrating a clear legal right to the relief requested.

I must first address a procedural matter. Pursuant to §276.5 of the Commissioner’s regulations, petitioners request permission to submit a supplemental reply to an exhibit inadvertently omitted from respondent’s answer that was subsequently provided. Petitioners’ request is granted, and the supplemental reply is accepted for consideration.

The appeal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner 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; Appeal of 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 a defense (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). As noted above, petitioners request a determination that their property is intersected by the boundary between the Marlboro Central School District and respondent’s district. Petitioners acknowledge that Marlboro collects the property tax on their property. If petitioners prevail, Education Law §3203(2) would require Marlboro to pay such taxes to respondent as the district designated to provide instructional services to petitioners’ children. Inasmuch as Marlboro would be adversely affected by a decision in favor of petitioners, it is a necessary party to the appeal and, petitioners’ failure to join it requires dismissal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa,48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen,48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Education Law §3203(1) provides:

The owner of taxable property that is so located that the boundary line between two school districts

intersects (a) the dwelling on said property or (b), in the case of an

owner-occupied single family dwelling unit, the property on which the

dwelling unit is located may designate the school in either of

such districts to which the children lawfully residing in said dwelling on

said property shall attend by filing with the district clerk of each of

such districts a notice of such designation on or before August first

in any year and thereafter ... and, until a subsequent designation shall

be made and filed, such children shall be deemed to be resident

children of the district designated and shall be entitled to the school

privileges of such district as resident pupils without the payment of tuition.

To effect a valid designation under Education Law§3203(1), petitioners must establish that “the boundary line between two school districts intersects” their property (Crowe, et al. v. MacFarland, et al., 138 AD2d788; Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 Ed Dept 15, Decision No 14,597; Appeal of Bd. of Educ. of the Syosset Cent. School Dist., 38 id. 791,Decision No. 14,144, aff’d, Bd. of Ed. Oyster Bay-East Norwich C.S.D. v. Mills, Sup. Ct., Albany Co. [Sheridan,J.], January 31, 2000).

On the record before me, I am unable to conclude that petitioners’ property is intersected by the boundary line between respondent’s district and Marlboro. Petitioners submit a map from the Ulster County Parcel Viewer showing their parcel. Petitioners also submit a map of respondent’s district which they claim clearly shows the boundary between respondent and Marlboro intersecting their property. However, neither map contains sufficient detail to identify the boundary between respondent’s district and Marlboro or to identify its relationship to petitioners’ property. Moreover, although respondent submits an on-line property description report from the Ulster County web site listing the property in Marlboro, petitioners point out disclaimer indicating that the county does not warrant the reliability of the information. Accordingly, on this record, I am unable to determine the exact location of the boundary in relation to petitioners’ property. I find that petitioners have failed to demonstrate that the boundary line intersects their property and, therefore, they have failed to establish an entitlement to designate respondent’s district pursuant to Education Law §3203.

I note that, pursuant to Education Law §2215(1), the district superintendent of schools shall ascertain whether the school district boundaries within his or her supervisory district are “definitely and plainly described “in the office of the proper town clerk. To the extent the boundary location is uncertain, petitioners are advised to ask the appropriate district superintendent of schools to determine where the boundary properly lies. If there is no order presently filed in the office of the appropriate town clerk, the district superintendent will provide such order in accordance with the provisions of Education Law §2215(1)(see Matter of Horowitz, 9 Ed Dept Rep 82, Decision No.8,071).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE