Appeal of JESSICA SKIFF from action of the Board of Education of the South Lewis Central School District regarding a school district boundary.

Decision No. 17,191

(September 22, 2017)

Matthew R. Fletcher, Esq., attorney for respondent

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the South Lewis Central School District (“respondent”) which denied her request to allow her son to attend the Lowville Academy and Central School District (“Lowville”).  The appeal must be dismissed.

Petitioner resides on a parcel of land which is located within the geographical boundaries of respondent’s district.  In January 2016, petitioner contacted the superintendent and requested that her son be allowed to attend Lowville, a neighboring school district.  In an email to the superintendent dated January 25, 2016, petitioner requested an opportunity to present information to respondent and present her position at an upcoming board meeting.  On January 26, 2016, the superintendent agreed to petitioner’s request.

On March 2, 2016, petitioner sent a letter to the superintendent outlining her position with respect to her request.  Petitioner stated that she would like to change her designated school district “to Lowville Academy or be classified with special permission for my children to attend Lowville Academy without changing the tax roll.”  Petitioner contended that the boundary lines in and around the property where she resided were “very unclear.”  Petitioner further asserted that several nearby properties are designated to attend Lowville, that her address was “covered under the Lowville Fire District” and that her son’s attendance within Lowville would be more convenient for, among other things, transportation, child care, employment and babysitting.  Petitioner further stated that respondent had previously granted permission for a family living on a nearby parcel of land to attend its district even though this property was designated for Lowville.

Petitioner and the superintendent corresponded by email regarding the status of the property where petitioner resided, as well as an alleged exemption given to a neighboring property, during the ensuing months.

In an email dated May 13, 2016, the superintendent informed petitioner that because she was not the owner of the property, she could not designate Lowville as her son’s school district of attendance pursuant to Education Law §3203.

In an email dated June 2, 2016, petitioner requested an opportunity to speak at the board’s regular meeting scheduled for June 21, 2016.  The superintendent replied by email on the same day, indicating that he would place the item on the agenda for discussion.

On June 21, 2016, petitioner attended a board meeting where her request to “remove [her property] from the South Lewis tax roll and give [it] to the Lowville School district” was discussed.

In a letter to petitioner dated July 5, 2016, signed by the superintendent and the board president, respondent denied petitioner’s request to have her children attend Lowville.  The letter stated that petitioner was not entitled to designate Lowville as her son’s school district of attendance because she did not own the property where she resided and the boundary line between the two districts did not intersect the dwelling or the property on which the dwelling was located.  Moreover, respondent indicated that it considered whether to alter the school district boundary line but declined to do as it would not be in the best interest of the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 22, 2016.

Petitioner contends that respondent’s denial of her request to change the school district boundary line was erroneous because the boundary line is “unclear” and respondent has granted a similar request on at least one other occasion.  Petitioner further argues that it would be more convenient for her son to attend Lowville given existing transportation routes.  Petitioner additionally contends that her uncle, the owner of the property on which she resides, has “agreed to transfer school district boundary lines” such that the property on which petitioner lives will be designated for Lowville.  Petitioner seeks a determination that her son is entitled to attend Lowville without the payment of tuition.

Respondent contends that petitioner’s appeal is without merit and untimely and that it must be dismissed for failure to join Lowville as a necessary party.  Respondent further contends that petitioner lacks standing to maintain this appeal because she does not own the property in question.  Respondent further denies that the school district boundary line is “unclear.”  Finally, to the extent petitioner requested that the district change the existing school district boundary lines, respondent claims that it appropriately considered and rejected such a change, determining that it was not within the best interest of the school district.

With respect to the timeliness of the petition, 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; Appeal of 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 for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Here, respondent denied petitioner’s request in a letter dated July 5, 2016.  Affording the usual five days for mailing, petitioner’s service of the petition on August 5, 2016, was timely.  Respondent’s argument that it denied petitioner’s request on January 20, 2016 is unavailing.  The record contains an email from petitioner to the superintendent dated January 25, 2016, which, in turn, references a voice mail message from the superintendent stating that respondent did “not hav[e] an interest in receiving [her] petition.”  However, the superintendent and respondent continued to entertain petitioner’s request during the ensuing months, which culminated in petitioner’s presentation at the June 21, 2016 board meeting and respondent’s rejection of petitioner’s request on July 5, 2016.  Therefore, I find that the appeal was timely filed.

Nevertheless, the appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  It appears from the record that the property at issue is owned by petitioner’s uncle, not petitioner.  Petitioner attempts to assert the rights of a property owner, and it is the property owner whose interests are directly impacted by a school boundary alteration which affects the value of the property and the school taxes payable by the owner.  Similarly, to the extent petitioner is asserting a right pursuant to Education Law §3203 to designate the district of attendance of children residing in a dwelling intersected by a boundary line, such right is only conferred upon the owner of the taxable property.  Therefore, although petitioner may be indirectly affected by respondent’s refusal to consent to a boundary alteration or to allow a designation pursuant to Education Law §3203, she lacks standing to bring this appeal.

Moreover, to the extent petitioner challenges respondent’s refusal to consent to a boundary alteration pursuant to Education Law §1507, 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). 

Here, petitioner seeks a determination that her son is entitled to attend the schools of Lowville as a district resident.  If petitioner prevails, Lowville would be required to enroll the student.  Lowville’s board of education would be adversely affected by an order directing it to admit petitioner’s son without its consent to a boundary alteration.  Education Law §1507, which governs alterations of school district boundaries, requires the consent of the boards of education of both districts affected by the boundary alteration.  Thus, to the extent petitioner challenges respondent’s refusal to consent, the Lowville board of education is a necessary party and failure to join it requires dismissal (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,186; Appeal of Manes, 46 id. 459, Decision No. 15,551).  Similarly, if it were determined that the dwelling or property is intersected by the boundary line and Lowville is the designated school district, Lowville would be required to provide instructional services to petitioner’s child, including transportation.  While respondent would be required by Education Law §3203(2) to pay property taxes to Lowville as the designated school district, Lowville would be incurring the instructional expense in the first instance.  Moreover, such a designation could change in the future to the detriment of Lowville (see Education Law §3203[1]).  Therefore, Lowville is also a necessary party to the extent petitioner seeks to make a designation pursuant to Education Law §3203(1) and petitioner's failure to join it requires dismissal (see Appeal of Minard, 53 Ed Dept Rep, Decision No. 16,529).

Even if the appeal were not dismissed for failure to join a necessary party, it would be dismissed on the merits.  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....

Petitioner admits that her uncle owns the property upon which petitioner resides.  Therefore, as respondent correctly argues, this statutory provision does not apply to petitioner because she presently is not, as required, the “owner” of the property in question.  Although petitioner indicates that her uncle “has agreed to transfer school district boundary lines to Lowville Academy and Central School,” there is no indication in the record that such a transfer has occurred.  Nor is there any proof that the boundary line intersects the dwelling in which petitioner resides or the property on which it is located.  Therefore, petitioner has failed to meet her burden of proving that she has a right to make a designation pursuant to Education Law §3203(1).

Additionally, to the extent petitioner contends that respondent unreasonably denied her request to alter the school district boundary lines, this claim is not supported by the record.  The Commissioner of Education may set aside the refusal of a non-city school district to consent to a boundary alteration where he or she finds that such refusal is unreasonable in light of the educational interests of the children involved or the effect of the transfer on the student population, tax revenues and educational programs of the school district from which property would be transferred (Appeals of Salerni and Board of Education of the Saratoga Springs Enlarged City School Dist., 27 Ed Dept Rep 393, Decision No. 11,987, aff’d sub nom Schuylerville CSD v. Commissioner of Education, et al., Supreme Court, Albany County, Special Term; Cheeseman, J.; Judgment granted dismissing petition to review; October 26, 1988, n.o.r.; aff’d 152 AD2d 241 (3d Dept. 1989); Appeals of Spectrum Communities L.L.C., et al. and Edelstein, 46 Ed Dept Rep 160, Decision No. 15,474; Andreou, et al. v. Mills, et al., Supreme Court, Albany County; Judgment granted dismissing petition; April 30, 2008; appealed to Appellate Division, Third Department; June 23, 2008; Judgment granted dismissing petition; January 19, 2010).  The paramount consideration in a case involving a boundary alteration is the educational interests of the children involved and petitioner must make a clear showing that a denial of the requested boundary alteration will adversely affect those educational interests (Appeal of Jimerson, 39 Ed Dept Rep 508, Decision No. 14,310).  Parental preference is not a sufficient basis to demonstrate educational interests sufficient to compel a boundary change (Appeal of Jimerson, 39 Ed Dept Rep 508, Decision No. 14,310; Appeal of Bearup, 32 id. 570, Decision No. 12,916).

On this record, it is clear that petitioner prefers to have her child attend Lowville’s schools.  However, other than her assertion in her March 2, 2016 letter to respondent’s superintendent requesting the boundary alteration that the alteration would shorten the distance between her home and school from 12 to 8 miles, the record is devoid of any explanation as to how the boundary change would affect the educational interests of her child.  Petitioner’s showing is not nearly sufficient to establish that the educational interests of her child would be adversely affected by respondent’s refusal to consent to the proposed boundary change and amounts to a parental preference that her child be transported for a shorter distance (see e.g. Appeal of Jimerson, 39 Ed Dept Rep 508, Decision No. 14,310).  On this record, therefore, petitioner has not met her burden of proving that respondent’s denial of her requested boundary change was unreasonable, arbitrary or capricious.[1]

Finally, while petitioner claims that respondent has permitted individuals located outside of its geographical boundaries to attend its schools under similar circumstances, any such action would not bind or estop the district from making a different determination in this case (see e.g. Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).[2]

I have considered the parties’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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