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Decision No. 13,266

Appeal of LOUIS and ANNA MAY JAGODA, on behalf of their son, JAKE, from action of the Board of Education of the Huntington Union Free School District regarding transportation.

Decision No. 13,266

(September 28, 1994)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, James H. Pyun, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal respondent's denial of their request for transportation of their son, Jake, between their home and the nonpublic school which he attends. Respondent denied such request because the distance between petitioners' residence and the nonpublic school is greater than 15 miles, and the voters of the district have not approved transportation beyond such distance. The appeal must be dismissed.

Jake attends Chaminade High School, a nonpublic school. On November 10, 1993, petitioners contacted respondent's transportation office, alleging the distance between their driveway to the Chaminade High School was 14.8 miles. Pursuant to Education Law '3635(1)(a), a board of education is required to provide transportation to students residing in the district provided the student resides within 15 miles of the nonpublic school in question, as measured by the nearest available route from home to school. Upon receiving petitioners' request for transportation, respondent's Assistant Superintendent for Business ("Assistant Superintendent"), who is in charge of the district's transportation office, measured the distance between petitioners' home and the Chaminade High School using his own vehicle. As a result of this test, the Assistant Superintendent concluded that petitioners lived in excess of 15 miles from the Chaminade High School and, therefore, denied their transportation request.

Petitioners requested respondent's superintendent look into this determination. Because petitioners submitted proof of calibration of their car's odometer, respondent obtained a vehicle from the Huntington Coach Corporation and conducted a second test drive. During this test, petitioners drove their own car along with respondent's vehicle and were observed by respondent's employees to be crossing over lane dividers in an attempt to decrease the distance. The results of respondent's second test also revealed that the distance between petitioners' home and the Chaminade High School exceeded the 15 mile limit.

Because verification of the second car's odometer was unavailable, respondent conducted a third test drive using a vehicle borrowed from the Manhasset Union Free School District. That vehicle was equipped with a calibrated digital mileage odometer. This third measurement also exceeded the 15 mile limit. Upon request, petitioners were sent proof of the calibration of the odometer of the third vehicle used by respondent.

On January 18, 1994, respondent notified petitioners that their request for transportation was denied because the transportation requested exceeded the 15 mile limit. This appeal followed.

Petitioners seek an order directing respondent to provide transportation for Jake. Respondent contends the appeal must be dismissed as untimely and because the transportation petitioners request exceeds the 15 mile limit.

An appeal to the Commissioner of Education must be instituted within 30 days from the decision complained of unless excused for good cause (8 NYCRR 175.16). Respondent denied petitioners' transportation request on January 18, 1994. This appeal was not commenced until June 16, 1994, more than five months after the decision was rendered. Petitioners offer no excuse for the delay in their petition. Therefore, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. A board of education is neither required to expend an unreasonable amount of time, effort and money in measuring distances for the purpose of determining eligibility for transportation, nor to make such measurements with the accuracy of a professional survey (Appeal of Shah, 31 Ed Dept Rep 312; Appeal of Taylor, 26 id. 228). The use of an automobile odometer to measure distance to determine eligibility for transportation is legally reasonable and sufficient (Appeal of Taylor, supra; Matter of Storm, 6 Ed Dept Rep 75). Moreover, proof of calibration is a reasonable response to a bona fide challenge to the accuracy of the odometer used as a measuring device (Appeal of Taylor, supra). The record indicates that respondent measured the distance with a properly calibrated electronic distance measuring computer. The distance measured was greater than the 15 mile limit. Accordingly, petitioners have failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in determining that Jake is not entitled to transportation.