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Decision No. 12,613

Appeal of ELLEN C. RUFFINO and MARY ELLEN WILBER from action of the Board of Education of the City School District of the City of Batavia regarding the purchase of real property.

Decision No. 12,613

(December 12, 1991)

Stakel, Suttell, Found, Rybak & Earl, Esqs., attorneys for respondent, Daniel A. Rybak, Esq., of counsel

SOBOL, Commissioner.--Petitioners object to various actions of respondent Board of Education of the City School District of Batavia concerning the purchase of 11.1 acres of land in the City of Batavia. The appeal must be dismissed.

Prior to 1988, respondent board had already begun evaluating shortages of classroom space within the district and considering various options. In March of that year, it hired a consulting firm which presented a report dated June 14, 1988, recommending that an additional elementary school be built. Two study committees established by the board concurred with that recommendation. The board then began to explore specific sites within the City of Batavia.

On July 11, 1989, respondent board voted to enter into an option contract with DVM Corp. for the purchase of 9.994 acres of vacant land for $155,000. On September 19, 1989, the board voted to enter into three more option contracts with individuals for smaller parcels of land contiguous to the land owned by DVM Corp., for a total purchase price of $20,000. Having secured options on the properties it sought, respondent board proceeded to engage architects, draw plans, and obtain necessary approvals from the State Education Department and the City of Batavia Planning Board.

The board originally hoped to place a bond resolution for school construction before the voters in the spring of 1990. However, when various delays made that impossible, the board voted on June 19, 1990, to exercise all four options rather than allow them to lapse and forfeit certain nonrefundable deposits. The district proceeded to acquire title to the parcels by four separate deeds, recorded in the Office of the Genesee County Clerk on October 1, 1990. Both the vote to exercise the options and the recording of the deeds were reported in a local newspaper, and copies of those articles are attached to petitioners' papers.

On December 11, 1990, respondent placed before the voters of the district a proposition to authorize the construction of a new school and issuance of bonds in the amount of $8.5 million to finance the same. By a vote of 446 in favor and 2,944 opposed, the voters rejected the school construction proposition.

On November 25, 1990, petitioner Wilber wrote a letter to the Attorney General, requesting that he investigate the manner in which the board was proceeding. Attached to that letter were copies of a tax map, the deeds recorded on October 1, 1990, and the newspaper articles dated November 8 and November 12, 1990, detailing the recording of the deeds and discussing the values represented by the tax stamps shown on the deeds. On December 18, 1990, that letter was referred to the State Education Department and on January 9, 1991, my Office of Counsel provided petitioners with information about how to bring an appeal pursuant to '310 of the Education Law. This appeal was not commenced until March 7, 1991.

Petitioners request that I review the procedures employed by the board to purchase the property in question. They also challenge an expenditure of nearly $10,000 to publicize the bond vote. Finally, they seek an order directing the board to sell the property it purchased for the purchase price and invest the proceeds.

Respondent claims that this appeal is untimely because it was not brought within 30 days of any of the events recited in the petition, as required by 8 NYCRR '275.16. Respondent further points out that under Education Law ''2511(1) and 2512, it is authorized to purchase land without voter approval. Respondent also explains in detail why it embarked upon a program of land acquisition and proposed school construction. The appeal must be dismissed as untimely. Pursuant to 8 NYCRR '275.16, an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of. Although I have the discretion to excuse a failure to commence an appeal within the time specified, good and sufficient reason for such failure must be set forth in the petition.

In this case, the last event which occurred was the bond vote of December 11, 1990. This appeal, however, was not commenced until March 7, 1991, nearly three months later. Moreover, even if I were to find that the correspondence among petitioners, the Attorney General, and the State Education Department somehow tolled the 30 days from running, this appeal would still be untimely. Although the State Education Department last wrote to petitioners on January 9, 1991, petitioners waited two more months before filing their appeal. When the appeal was finally commenced on March 7, 1991, the only explanation for its lateness was: "The time taken to gather necessary evidence (legal documents, newspaper articles, etc.) and prepare our appeal has put us beyond the 30-day appeal limit." I cannot accept that as a valid excuse. Petitioners were aware of the operative facts concerning the land acquisition by November 25, 1990, as evidenced by the copies of deeds and newspaper articles forwarded to the Attorney General. The petition in this matter contains only three newspaper articles published subsequent to November 25, 1990, none of which contained new information previously unavailable to petitioners. Because no new materials were gathered between January 9 and March 7, 1991, petitioners have offered no valid excuse for their untimely appeal.

Even if this appeal were timely, I would dismiss it on the merits. As a small city school district governed by Article 51 of the Education Law, respondent has the authority under Education Law ''2511 and 2512 to acquire real property without a separate vote by the residents of the district. Sections 2511 and 2512 of the Education Law authorize the board of education of a city school district of a city with less than 125,000 inhabitants to purchase real property, whenever in the judgment of the board such acquisition is necessary for an educational purpose authorized by law. As a prerequisite to the exercise of that authority, the board is required to submit the matter of the site proposed to be purchased to the city planning board for its approval (Education Law '2512[6]) and also submit plans and specifications to the State Education Department for approval (Education Law '2512[4]). According to respondent's answer, site designation approval was received from the City of Batavia Planning Board on February 27, 1990 and plan approval was received from the State Education Department on June 21, 1990. The total cost of land acquisition, $175,000, was paid from the district's existing Capital Project Land Account. No new tax revenues were involved. Petitioners have not rebutted any of these allegations by respondent. The fact that the voters have rejected a bond proposal to finance the construction of a new school building does not affect the authority of the board to acquire the property in question (see, Kramer v. Board of Education, City School District of Olean, 40 AD2d 946).

The only other issue raised by petitioners is the use of $9,832 in district funds for publicizing the bond vote and the cost of conducting the election. Petitioners have not alleged with specificity their objections to the booklet that was mailed to district residents. I have examined that material and conclude that it does not violate the principles set forth in Phillips v. Maurer (67 NY2d 672).

I have considered petitioners' remaining contentions, and I find them to be without merit.