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Decision No. 17,701

Appeal of JOSEPH IMPELLIZERI, on behalf of his son JOSEPH, from action of the Board of Education of the Wappingers Central School District regarding transportation.

Decision No. 17,701

(July 22, 2019)

Fitzgerald & Sadove, PLLC, attorneys for petitioner, Erica M. Fitgerald, Esq., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA., Commissioner.--Petitioner challenges the decision of the Board of Education of the Wappingers Central School District (“respondent”) to deny his request to change the transportation pick-up/drop-off point (“bus stop”) for his son, Joseph (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student lived within respondent’s district and the student attended a nonpublic school (“the nonpublic school”) located more than fifteen miles from their home.  According to an affidavit from respondent’s transportation supervisor submitted with this appeal, the district has other resident students who attend the same nonpublic school and live within fifteen miles of the school and “[t]herefore, it provides transportation to other students attending the [nonpublic school] using a centralized pick up point.”  The transportation supervisor states that, at the outset of the 2018-2019 school year, the student was scheduled to be transported to the nonpublic school from a centralized pick-up point.  However, “shortly after the school year began” the district became aware of another student who required door-to-door transportation to the nonpublic school.  The transportation supervisor explains that “[b]ecause the school bus would be driving near [] [p]etitioner’s home to pick up [the] other student, [she] made the decision, along with the bus driver, to provide [] [p]etitioner with a bus stop ... even though the [d]istrict was not required to do so.”

By letter dated September 7, 2018, petitioner wrote to respondent’s transportation department and requested that respondent re-locate the bus stop to a “safer bus stop” in front of his home.  By letter dated September 13, 2018, the transportation department denied petitioner’s request.  By letter dated September 13, 2018, petitioner appealed this determination to respondent’s transportation appeal committee.  By letter dated September 20, 2018, the transportation appeal committee denied petitioner’s appeal.  Petitioner appealed the determination to respondent, which denied the appeal by letter dated October 2, 2018.  This appeal ensued.

Petitioner argues that the bus stop is not safe because: (1) it is “not illuminated and the high-speed limit on the road could cause a car to go out of control and hit either the bus or a student entering/exiting the bus;” (2) there is “no direct housing visibility from any angle at the stop thus no safety observers to notice a problem;” (3) a “sex offender [lives] nearby”; (4) “the visibility of the stop to cars passing by is limited, and the placement of the stop makes it unsafe to load and unload ...”; and (5) “[d]ue to the proximity of the stop to the side of the road, there is no safe place to stand when snow is removed due to plowing on the road.”  Petitioner also contends that his proposed bus stop, in front of his home, is located 0.2 miles from the actual bus stop and “would neither delay the bus route nor cause any additional cost to the [d]istrict” and that “the bus continues to pick up and drop off [his] two other children [in front of his residence] ....”  Finally, petitioner argues that respondent’s determination is arbitrary and capricious because his request is reasonable, respondent did not explain why it determined that the bus stop was “deemed safe,” and respondent failed to adequately investigate safety conditions at the bus stop.”  Petitioner seeks an order “relocat[ing]” the pick-up point in front of his residence.[1]  Petitioner seeks an order “reloca[ting] the pick-up point in front of his residence.

Respondent denies petitioner’s contentions and argues that its decision was rational.  Respondent also objects to the scope of petitioner’s reply.

I must first address the procedural matters.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 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).  The petition relates to petitioner’s request for transportation to and from a specific bus stop location for the 2018-2019 school year.  According to respondent, the district “reassesses its bus routes and bus stops for efficiency every year.”  As the 2018-2019 school year has ended, petitioner’s challenge is academic insofar as respondent indicates that it will or already has conducted a new review of its bus routes and bus stops for the 2019-2020 school year, thus rendering the instant appeal moot (see Education Law §3635[2]).

Even if it were not subject to dismissal as moot, the appeal 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).

A board of education may exercise its discretion when designating pick-up and drop-off points, provided that the board uses reasonable care in exercising such discretion (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).  In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id.  128, Decision No. 15,814).  The law does not require a school district to provide transportation for the pupil directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc2d 384) and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186).  Where a student’s home is on a dangerous road or at a remote location, the parents are not free from the obligation to assist the student in reaching the pick-up point.  It is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; 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 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).

Initially, the record supports a finding that respondent considered petitioner’s request for a change in the student’s bus stop in accordance with board policy.  In an affidavit submitted with this appeal, respondent’s transportation supervisor describes the procedure that respondent follows in response to such requests, and asserts that it followed this procedure in this instance.  Specifically, the transportation supervisor indicates that, upon receipt of a school bus stop review request form, the transportation department sends two staff members to evaluate the bus stop using a school bus stop review form.  The record contains the school bus stop review forms that were completed in connection with petitioner’s request.  These forms are essentially checklists that evaluate certain conditions such as the number of road lanes, speed limit, visibility and traffic.  Each condition is assigned a point value and, according to the transportation supervisor, “if the bus stop receives too many points, the bus stop is determined not to be safe and the stop is changed.”  It is unclear from the record as to how many points are necessary to warrant a change in bus stop location.[2]

In her affidavit, the transportation supervisor further indicates that two staff members went to the bus stop, completed individual school bus stop review forms and determined that the stop was safe.  She states that she reviewed this information before determining that the bus stop was safe and denying petitioner’s request.  She also states that, upon receipt of petitioner’s school bus stop decision appeal form, two staff members who had not participated in the initial decision went to the bus stop to complete school bus stop review forms.  The transportation supervisor also avers that the transportation appeal committee reviewed all information collected in analyzing the stop, including all information provided by petitioner, in determining that the student’s  bus stop was safe.[3]

Although I am sympathetic to petitioner’s concerns, other than his conclusory and speculative assertions that traffic conditions render the pick-up point unsafe, the record is devoid of any evidence that the district’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.  Petitioner merely makes conclusory and speculative assertions that the pick-up/drop-off point is unsafe but has not submitted evidence to corroborate those assertions (see Appeal of Halpern, 58 Ed Dept Rep, Decision 17,480).  Further, the safety factors raised by petitioner, including the nature and volume of traffic, are identical to characteristics of many pick-up points in rural and suburban areas, and are not, in and of themselves, a basis for deeming the current bus stop unsafe (see e.g. Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Weinschenk, 47 id. 518, Decision No. 15,770; Appeal of Kelsey, 38 id. 396, Decision No. 14,063). For example, while petitioner has articulated concerns regarding the “poor visibility” in and around the bus stop, he produces no proof in support of this assertion.  As noted, the video recording submitted by petitioner has been reviewed as part of the record in the instant appeal and does not establish that the pick-up/drop-off point is unsafe.  The video, which is dark and appears to have been taken before the sun came up or during sunset,[4] merely portrays cars periodically driving down a two-lane road. 

Petitioner further alleges that, when there is snow, there is no safe area for the student to stand when boarding the bus “due to plowing on the road.”  In response, the transportation supervisor asserts that “[t]he currently assigned bus stop ... is alongside a patch of grass that permits the student to stand back more than fifteen feet and still be visible.”  The record contains no further information as to whether this area is, or may be, covered with plowed snow.  Therefore, petitioner has not met his burden of proving that there is “no safe area for the student to stand” during periods of snowfall.

Petitioner also objects to the existence of a sex offender who allegedly lives less than “3 miles from [the pick-up] site,” citing, in his September 13, 2018 letter, a link to the New York State Division of Criminal Justice Services’ website.  However, speculation about such a generalized risk is not a basis for setting aside respondent’s determination to establish the new bus stop (see Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480). 

While I understand that petitioner is concerned for his child’s safety, the law does not require a school district to provide transportation for students directly to and from home (Education Law §3635[1][d]; Ossant v. Millard, 72 Misc2d 384), as petitioner is requesting.  As stated above, it is the responsibility of the parent, not the district, to see that the child safely reaches the pick-up point (Appeal of E.F., 57 Ed Dept Rep, Decision No. 17,186; Appeal of Brizell, 48 id. 128, Decision No. 15,814).

Therefore, on this record, petitioner has not met his burden of proving that respondent’s denial of his request to change the student’s pick-up point was arbitrary or capricious, unreasonable or an abuse of discretion.

I have reviewed petitioners remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] Respondent’s transportation supervisor states in an affidavit that petitioner’s youngest child is picked up in front of petitioner’s house because he “attends elementary school at a different non-public school” which, due to its location, entitles him to be picked up at his home.  Although not entirely clear, the transportation supervisor also states that “petitioner’s third child is in high school ... [and] she takes the same bus as her younger brother and is, therefore [,] also picked up in front of [the] house.”

 

[2] While petitioner has not otherwise met his burden of proving that respondent’s determination in this case was arbitrary or capricious, I admonish respondent to, in the future, provide a more detailed explanation of its point system, including the number of points needed to determine whether a pick-up/drop-off point is unsafe. 

 

[3] The affidavit specifically indicates that petitioner, with his request for an appeal to respondent, submitted a video of the bus stop at pick-up time which respondent considered in making its decision.  Therefore, I find that respondent adequately considered petitioner’s request in accordance with board policy.  As part of the instant appeal, a copy of the video submitted by petitioner has also been reviewed.

 

[4] In this respect, petitioner complains that “[t]he overhead DOT light does not work and we are forced to wait in the dark.”  Petitioner does not allege that the school district is responsible for maintenance of the light, and it appears that such concern would be more appropriately directed toward the municipality or State agency responsible for the light.