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Decision No. 13,070

Appeal of JAMES P. CHRISTNER from action of the Board of Education of the LeRoy Central School District regarding a capital construction renovation project.

Decision No. 13,070

(December 22, 1993)

Harris, Beach and Wilcox, Esqs., attorneys for respondent, Daniel J. Moore, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's actions regarding a capital construction renovation project. The appeal must be dismissed.

In 1990 and 1991, respondent identified various problems and deficiencies in several of its buildings. In response to those findings, respondent employed an architectural firm to develop plans for the renovation of its buildings. In February 1992, respondent voted to hold a public vote on a bond issue to fund renovations, proposed as a result of plans developed by the architectural firm. Public meetings were held, and written information on the matter was supplied to district residents. The proposed bond issue was approved by the voters in April 1992.

In developing the plans and specifications, an analysis of the Americans with Disabilities Act (ADA) was conducted to ensure compliance. In addition, the architectural firm consulted with an advocacy group for the disabled in an effort to address any aspects regarding the project that would affect individuals with disabilities.

On November 6, 1992, respondent submitted the plans and specifications for its project to the Bureau of Facilities Planning of the State Education Department (the "Bureau"). Petitioner, apparently unhappy with certain design features of the plans, wrote to the Bureau complaining that the plans did not meet statutory and regulatory standards. By letter dated January 11, 1993, the Bureau informed petitioner that his concerns touched on design considerations which fell within the discretion of the architect and the board, and did not violate New York law. On January 20, 1993, the Bureau approved the plans and specifications and issued building permits for the project. Construction began in March 1993.

Petitioner then wrote to the Office of Special Education Services of the State Education Department alleging that the project plans violated special education instruction spacial regulations. A representative of that office investigated and found no violations. He determined that the new construction would not negatively affect special education classroom space and would not impose programmatic hardships or accessibility problems. Petitioner commenced this appeal on June 18, 1993.

The appeal must be dismissed for failure to comply with '275.10 of the Regulations, which provides that a petition:

shall contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner's claim and of the specific act or acts complained of (8 NYCRR 275.10).

The petition herein is a single-spaced 20 page document that petitioner has divided into only 6 numbered paragraphs. It ends with petitioner acknowledging that his petition is not concise and as to the facts, requests that I "sort and sift as you must." However, sorting and sifting through a petition is precisely what a rule requiring a clear statement of claim is intended to prevent.

It is unclear whether petitioner is contesting the approval of the renovation plans by the Bureau on January 20, 1993 or the commencement of the project work in March 1993. In any event, the petition is untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal must be brought within 30 days of the January 20, 1993 decision of the Bureau or the commencement of the project in March. In this case, the petition is untimely as to both events.

Regarding the merits, as noted above, it is unclear what petitioner's precise claims are. He appears to allege a number of unspecified violations of the ADA. In any event, an appeal to the Commissioner is not the proper forum in which to raise alleged violations of the ADA. Jurisdiction of enforcement of claims raised under the ADA is with the Federal Court, the U.S. Department of Justice and the U.S. Department of Education (28 CFR ''35.170-35.190; Appeal of Eaglefeld, et al., 33 Ed Dept Rep ___, Decision No. 13042, dated November 9, 1993).

I have reviewed petitioner's other contentions and find them without merit.