Decision No. 17,306
Appeal of JOHN BOUGIAMAS, on behalf of his daughter ANGELENA, from action of the Board of Education of the City School District of the City of New York regarding transportation.
Decision No. 17,306
(January 16, 2018)
Zachary W. Carter, Corporation Counsel, attorney for respondent, Omar H. Tuffaha, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny his daughter (“the student”) school bus transportation to a nonpublic school for the 2016-2017 school year. The appeal must be dismissed.
At the time this appeal was commenced, during the 2016-2017 school year, the student attended seventh grade at a nonpublic school, located in Flushing, New York. Prior to entering seventh grade, the student received yellow bus transportation pursuant to respondent’s transportation policy (Chancellor’s regulation A-801) which provides for free transportation, either by school bus or public transit, to students in grades three through six who live one mile or more from the school they attend. However, upon entering the seventh grade, the student was no longer eligible for school bus service, based on her grade and the distance to school from her home. Instead, she received a full-fare MetroCard.
According to respondent’s transportation policy, students not otherwise entitled to school bus transportation may annually seek a variance to receive such transportation, based on hazardous conditions along the student’s walking route to school or a bus stop. Accordingly, in June 2016, petitioner submitted two Hazard Evaluation Requests, on behalf of his daughter, to respondent’s Office of Pupil Transportation (“OPT”). The hazardous conditions noted by petitioner on the request form included: a railroad crossing, lack of sidewalks or shoulders, and a hazardous intersection with no traffic control device.
By letter dated September 15, 2016, OPT denied petitioner’s hazard variance request, stating in part that “[a] site visit was completed and no hazards were found on the pupil’s route to school or public transportation.” This appeal ensued. Petitioner’s request for interim relief was denied on October 26, 2016.
Petitioner alleges that respondent committed an “error” in not granting a hazard variance. Petitioner avers that the shortest route for the student to access public transportation is 0.6 miles, but that OPT “mandated” that she walk 1.067 miles to a different bus stop. He alleges that “DOE mandated this longer route to avoid providing an exception ....” Petitioner contends that “regardless of which route is used, the student will encounter hazards requiring an exception to transportation.”
Petitioner further avers that his son, an elementary school student, receives school bus service, that there is “availability on this bus route,” and that the student should therefore be allowed to ride that bus pursuant to respondent’s policy which provides an exception for pupils in grades 7 and 8 to use “existing contract bus service” when “public transit facilities are inadequate or unavailable.”
Finally, petitioner argues that there are “equitable reasons to grant this appeal” including that: the student would have to take public transportation “on her own” because both of her parents work full-time and would not be able to accompany her; that she is “very slight of build” and therefore unable to “physically defend herself in the event that she was approached by someone with ill intent;” and that both of the student’s parents pay New York City income taxes but have not “availed themselves of public schools services for years.” As relief, petitioner seeks a determination that the student “be granted a permanent exception request for school transportation.”
Respondent requests that the appeal be dismissed and alleges that petitioner has failed to meet his burden of proof. Respondent contends that its decision denying petitioner’s request for a hazard variance was neither arbitrary nor capricious.
The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
The appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836). Petitioner is challenging respondent’s denial of his request for school bus transportation, based on hazardous conditions, for the 2016-2017 school year. The 2016-2017 school year has ended, and in respondent’s district, variance requests are submitted annually (Appeal of Harris, 57 Ed Dept Rep, Decision No. 17,177; Appeal of Allen, 56 id., Decision No. 16,970; Appeal of Kravchenko, 56 id., Decision No. 16,941). Therefore, petitioner’s challenge to respondent’s denial of his 2016-2017 variance request is moot.
To the extent that petitioner is requesting a transportation variance for the 2017-2018 school year and beyond, the appeal is premature. Facts and circumstances underlying a transportation variance request based on alleged hazards may change with respect to future school years and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Allen, 56 Ed Dept Rep, Decision No. 16,970; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A city school district may, but is not required to, provide transportation to students (Education Law §3635[c]). Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891). The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).
A board of education has broad discretion to determine how transportation is to be provided (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814). Moreover, a board of education has both the responsibility and the authority to decide difficult questions in balancing the overall efficiency and economy of a transportation system against the convenience of individual students (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Brizell, 48 id. 128, Decision No. 15,814).
The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).
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).
On this record, petitioner has not clearly established that respondent’s denial of petitioner’s request for a variance based on hazard was arbitrary, capricious, unreasonable, or an abuse of discretion. The record indicates that OPT conducted a Hazard Area Evaluation on September 1, 2016, which consisted of a site visit to Sandhill Road “between” Little Neck Parkway, where the investigator used a point system to determine whether hazards existed. The investigator evaluated criteria including, but not limited to, traffic conditions such as traffic volume, speed limit, and traffic control devices. An affidavit from OPT’s chief of staff avers that OPT determined that no hazardous conditions exist that would warrant the issuance of a hazard variance. The affidavit further avers that to determine the route between a student’s home and his or her school or public transportation, OPT uses the Department of City Planning’s Linear Integrated Ordered Network (“LION”) street map which calculated a route different than the route identified by petitioner which avoided intersections identified by petitioner as hazardous.
Petitioner alleges that OPT identified a different, longer route to avoid providing a hazard variance and contends that, even if the student uses OPT’s identified route, she will still “encounter hazards requiring an exception to transportation.” Other than petitioner’s assertions that such route has hazards, petitioner submits no proof to support his claims.
Petitioner also objects to the route, between his home and public transportation, identified by respondent because the route is longer than the distance between his home and public transportation. Petitioner submits a map printed from Google Maps purporting to show the distance between his home and the “nearest bus stop” as 0.4 miles. In contrast, the route identified by respondent’s LION street map indicates that the “shortest path” to public transportation is 1.067 miles. The affidavit from OPT’s chief of staff acknowledges that the route is different and avers that it avoids intersections identified by petitioner as hazardous. Petitioner offers no explanation as to why his map should be substituted for respondent’s LION calculation – DOE’s standard measurement tool - or why respondent’s use of the LION calculation or the route used is arbitrary, capricious or unreasonable.
With respect to petitioner’s claim that the student should be granted an exception and allowed to ride the bus taken by his elementary-school-aged son, on this record, petitioner has failed to prove that public transit facilities are inadequate or unavailable, as is required by Chancellor’s regulation A-801. Having failed to establish a clear legal right to the relief sought, the appeal must be dismissed.
THE APPEAL IS DISMISSED.
END OF FILE
 Neither party has submitted respondent’s transportation policy, Chancellor’s regulation A-801, therefore, I have taken judicial notice of such policy, which is published on respondent’s official website.
 The record indicates that petitioner completed a 2015-2016 Hazard Evaluation Request dated June 6, 2016 and a 2016-2017 Hazard Evaluation Request dated June 22, 2016. I note that street names indicated on the forms by petitioner differ.
 Petitioner requested that his daughter be “granted a permanent exception request for school transportation.”
 I note that respondent’s Hazard Area Evaluation form does not include a second cross-street and indicates only that the location to be evaluated is “Sandhill Rd between Little Neck Pkwy +.” I remind respondent to be clear and detailed when documenting the area it evaluates in the future.
 I note that in the “sidewalk or shoulder” evaluation information section, the investigator did not assign a numeric point value but instead wrote a question mark. However, even if the investigator had assigned the maximum point value to that section of the evaluation, the area would not have received the total points required to qualify for a hazard exception. I remind respondent to ensure that all evaluation information on such form is clearly documented.
 It appears that petitioner raised concerns about OPT’s identified route for the first time in this proceeding, as the record is devoid of any evidence that he submitted a hazard evaluation request for this route to respondent.