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Decision No. 13,317

Appeal of PS 7/IS 171 ENVIRONMENTAL IMPROVEMENT COMMITTEE, PS 7 PTA from action of the Board of Education of the City School District of the City of New York relating to a zoning change.

Decision No. 13,317

(December 20, 1994)

Brooklyn Legal Services Corporation A, attorney for petitioners, Hillary Exter, Esq., of counsel

O. Peter Sherwood, Esq., Corporation Counsel, attorney for respondent, R. Townsend Davis, Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioners, PS 7/IS 171 Environmental Improvement Committee and PS 7 PTA appeal respondent's denial of an appeal from the decision of the Chancellor which upheld the plan to rezone a portion of PS 7/IS 171 in Community School District 19 (C.S.D. 19). I previously denied petitioners' request that, pending final determination of the appeal, the rezoning be stayed and sixth grade students who would be affected by respondent's determination be allowed to continue to attend IS 171. The appeal must now be dismissed.

PS 7, an elementary school, and IS 171, an intermediate school serving grades 6-8, share a physical facility located in Brooklyn, New York. Prior to the rezoning plan, which is the subject of this appeal, fifth grade students from PS 7 attended sixth grade classes at IS 171. Under the rezoning, the entire fifth grade class from PS 7 who were scheduled to attend IS 171 as sixth graders in the fall of 1993 were instead relocated to IS 218 at another building in the same district. The reason for the relocation of these students was the overcrowding of IS 171 and underutilization of IS 218. Additionally, IS 171 had approximately 30 rooms closed because they were damaged and designated for asbestos-abatement treatment.

In the spring of the 1991-92 school year, the Community School Board of C.S.D. 19 began the planning process to relieve the overcrowding which has been prevalent at PS 7/IS 171. Following several decisions, appeals and determinations upholding the appeals, in whole or in part, the temporary rezoning plan was adopted by the Community School Board on November 24, 1992. Following several interim procedural steps, respondent dismissed petitioners' appeal on August 25, 1993. Petitioners commenced this appeal.

Before addressing the merits, I will review a procedural issue. The only verification attached to the petition in this appeal is made by an individual alleging to be the chairperson of the "PS 7 Environmental Improvement Committee, petitioner in this proceeding." There is no indication that this committee is incorporated, nor is there any indication that the person verifying the petition is in any manner personally affected by the zoning plan which is the subject of the appeal. An unincorporated association, such as the committee, lacks standing to maintain an appeal to the Commissioner of Education (Appeal of NAACP, et al., 30 Ed Dept Rep 187; Appeal of Luther H., 30 id. 233; Appeal of Ad Hoc Committee Greenburgh Eleven Union Free School District, 32 id. 215). Although the caption of the petition also lists PS 7 PTA as a petitioner, there is nothing in the record which establishes that the PTA is a party to this appeal. Therefore, the appeal must be dismissed for lack of a party with standing to maintain this proceeding.

The appeal must also be dismissed on the merits. Petitioners' primary argument is that C.S.D. 19 failed to comply with the procedural requisites of Chancellor's regulations A-180 because the zoning proposal was not adopted by March 1, 1993. Petitioners contend that the proposal was not adopted until August 25, 1993. Petitioners also contend that this alleged failure deprived parents and teachers of a meaningful role in the planning process.

Respondent asserts that the procedural requirements of regulation A-180 were satisfied. Based upon the record before me, I find that the resolution which was eventually implemented was adopted at a public meeting by Community School Board 19 on or about November 24, 1992 and was submitted to the Office of Zoning and Integration (ZIU) on or about December 3, 1992. This complies with Chancellor's regulation A-180.

Petitioners also argue that the rezoning plan is educationally disruptive and unsound. Respondent counters that the decision reached in this case is temporary and educationally sound. Respondent further contends that substantial efforts have been made to insure that the sixth graders required to change schools under the plan will receive adequate instruction and that measures have been implemented to insure student safety. Respondent argues that petitioners' contentions as to the educational soundness of the plan are purely speculative. I find petitioners' contention that the plan does not provide sufficient measures to assure educational continuity and student safety to be speculative and unfounded. The record before me demonstrates that respondent adjusted the proposed plan to address petitioners' concerns. There will be monitoring of the students while being transported to and at IS 218. Moreover, the educational program of the children relocated to IS 218 will be under the jurisdiction of IS 171. In an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which relief is sought (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of of Keiling, 25 id. 122; 8 NYCRR 275.10). Petitioners have not met their burden of proof in this appeal.