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Decision No. 13,039

Appeal of WENDY GUIDO from action of the Board of Education of the Kinderhook Central School District relating to transportation.

Decision No. 13,039

(November 8, 1993)

Whiteman, Osterman & Hanna, Esqs., attorneys for respondent, Melvin H. Osterman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to change its transportation pickup point for her son. The appeal must be dismissed.

Petitioner resides on Circle Lane in the Kinderhook Central School District, and her son attends the Ichabod Crane School in that district. On October 29, 1992, petitioner wrote to the district's director of transportation, requesting that the transportation pickup point for her son be changed to the intersection of Route 9 and Circle Lane. The current pickup point is on Route 9 approximately 30 feet from petitioner's requested pickup point. Subsequently, respondent's director of transportation informed petitioner that her request for a change was denied.

On March 16, 1993, petitioner presented to respondent board her request for a change of her son's pickup point. The request was referred to respondent's transportation committee. The transportation committee reviewed the matter, and by letter dated April 12, 1993, respondent informed petitioner that the transportation committee had upheld the decision of the director of transportation. On April 27, 1993, petitioner again wrote to respondent requesting a change of the pickup point for her son. By letter dated May 14, 1993, respondent reaffirmed its April 12th decision denying the change. Petitioner commenced this appeal on June 11, 1993.

Before reviewing the merits, it is necessary to address a procedural issue. Respondent contends that the appeal is untimely, having been commenced more that 30 days after respondent notified petitioner that her request had been denied. Petitioner contends that her appeal is timely because it was commenced within 30 days of respondent's May 14, 1993 letter. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). An application to reconsider a previous decision does not extend the time in which an appeal may be taken from an initial determination (Appeal of Zeff, 29 Ed Dept Rep 5; Matter of Tripi, 21 id. 349). The initial decision in this case was made on April 12, 1993. Thus, for this appeal to have been timely commenced, it must have been initiated within 30 days of April 12, 1993. Petitioner, however, did not commence this appeal until approximately 60 days later. Petitioner's April 27th letter to which the May letter responded, was merely a request that respondent reconsider its April 12th decision, and thus did not toll the statute of limitations from running. Because this appeal was not commenced within 30 days of the April decision, it is dismissed as untimely.

Even if the appeal was timely, it must also be dismissed on the merits. A board of education may exercise its discretion in designating pickup points (Appeal of Klein, 27 Ed Dept Rep 76; Appeal of Bohonyi, 26 id. 363; Appeal of Taylor, 26 id. 255; Matter of Ryan, 24 id. 125), provided that the board uses care in exercising such discretion (Appeal of Klein, supra; Appeal of Bohonyi, supra; Matter of Scheinberg, 21 Ed Dept Rep 32). In establishing a pickup point, a board of education must consider and balance considerations of public safety and convenience, routing efficiency and costs (Appeal of Donk, et al., 27 Ed Dept Rep 254; Appeal of Taylor, supra).

Petitioner contends that respondent abused its discretion in refusing to move her son's pickup point approximately 30 feet to the intersection of Route 9 and Circle Lane. She maintains that the current pickup point is unsafe because it is near the road, and during the winter her son must climb a snow bank to board the bus. Respondent maintains that the current pickup point has been used for an extended period of time without any problems. Visibility is good at that location and children waiting for the bus can stand on the sidewalk. The fact that petitioner's son may have to climb over snow when walking from the sidewalk to the bus is not a basis for finding respondent's actions improper. Moreover, respondent maintains that the pickup point proposed by petitioner at the intersection of Route 9 and Circle Lane is less safe than the present stop. Apparently, a large pine tree and shrubbery near that intersection might obscure the approaching bus driver's view of Circle Lane. To see the bus, children would have to stand closer to Route 9 without the benefit of a sidewalk. In addition, traffic in and out of Circle Lane could present another hazard.

Based on the foregoing, petitioner has failed to show that respondent acted in an arbitrary or capricious manner when it refused to change the pickup point for her son.