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Decision No. 17,462

Appeal of MIRAV SOROKA, on behalf of her children GEDALIA and CHAIM, from action of the Board of Education of the City School District of the City of New York regarding transportation.

Decision No. 17,462

 

(July 25, 2018)

 

Zachary W. Carter, Corporation Counsel, attorney for respondent, Christopher Ferreira, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her children (“the students”) a hazard variance request or a change in transportation for the 2017-2018 school year. The appeal must be dismissed. 

Petitioner and the students reside within respondent’s district and the students attend a nonpublic school.  The record indicates that respondent provides the students with yellow bus transportation to and from the nonpublic school from a designated bus stop located approximately .05 miles from petitioner’s residence.[1] 

On or about August 24, 2017 and December 18, 2017, petitioner submitted requests for hazard variances on behalf of the students to respondent’s Office of Pupil Transportation (“OPT”).  Petitioner also requested that respondent move the students’ bus stop to a different location.  By letter dated January 9, 2018, OPT denied petitioner’s hazard variance requests.  This appeal ensued.   

Petitioner claims that the current location of the bus stop is not safe because there is poor visibility, no sidewalks or crosswalks and heavy traffic on the route to the bus stop.  Petitioner also argues that the students’ current route “forces the children to walk in a circle, making the walk longer” and “along the highway, which is even more dangerous” and that “this is a very residential area and the streets are rarely cleaned and difficult to navigate in inclement weather.”  Finally, petitioner argues that she is “a single mother with no family in the area” and that she leaves for work before 7 a.m. every morning.  Petitioner requests a hazard variance for the students.

Respondent argues that petitioner has failed to state a claim upon which relief can be granted, and therefore, the petition must be dismissed.  Respondent asserts that its determination to deny petitioner’s request for a variance was not arbitrary or capricious.

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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner is challenging respondent’s denial of her request for a hazard variance for the 2017-2018 school year.  The 2017-2018 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.  Therefore, petitioner’s challenge to respondent’s denial of her 2017-2018 variance request is moot.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.

A board of education has broad discretion to determine how transportation is to be provided (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  In making that determination, a board may balance considerations of safety, convenience, efficiency and cost (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 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 Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioner has not clearly established that respondent’s denial of petitioner’s request for a hazard variance was arbitrary, capricious, unreasonable, or an abuse of discretion.  The record indicates that OPT conducted a Hazard Area Evaluation on January 8 and 9, 2017, 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, which are assigned point values.[2]  In an affidavit, OPT’s chief of staff avers that OPT determined that there are no hazardous conditions that would warrant the issuance of a variance. 

The form indicates that in this case, twelve points (or more) are required qualify for a hazard exemption.  The record indicates that the alleged hazards on the students’ current bus route was scored three points during the site visit on January 8, 2017, and four points on January 9, 2018. 

While I am sympathetic to petitioner’s claims about being a single mother with no local relatives and early work hours, courts and prior Commissioner’s decisions have consistently held that it is the responsibility of the parent(s) and not the district to see that their children safely reach pick-up and drop-off points (Pratt, et al. v. Robinson, et al., 39 NY2d 554; Studley, et al. v. Allen, et al., 24 AD2d 678; Appeal of Mosher, 46 Ed Dept Rep 334, Decision No. 15,525; Appeal of Raymond, 39 id. 774, Decision No. 14,376).  Therefore, I cannot conclude on this record that respondent’s determination was arbitrary and capricious. 

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

THE APPEAL IS DISMISSED.

END OF FILE

 


[1] The record indicates that “the closest bus stop to the [s]tudent’s residence is at the intersection of Westwood Avenue and Colfield Avenue.”

 

[2] For example, the form includes evaluation information such as “vehicle conditions.”  It appears that an investigator is required to count passing cars over a set period of time. The form indicates that if less than 50 cars pass in that time period, the condition is assigned a point value of one.  If between 50 and 100 cars pass in that time period, it is assigned a point value of two.