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Decision No. 13,650

Appeal of ALVIN and CHRISTINE KAUFMAN, on behalf of their sons, MICHAEL and ROBERT, from action of the Board of Education of the Minisink Valley Central School District regarding transportation.

Decision No. 13,650

(August 13, 1996)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw, Esq. and Margo L. May, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal respondent's refusal to change the transportation pick-up point for their sons. The appeal must be dismissed.

Petitioners reside with their sons at Box 287 on Shoddy Hollow Road in Otisville. The designated pick-up point for petitioners' sons is across the street from the Butler residence at Box 284 on Shoddy Hollow Road, and the drop-off point is in front of the Butler residence in the afternoon.

From September 1993 until October 1995, the Otisville bus driver stopped for petitioners' children at the Bressi residence next door, Box 285, Shoddy Hollow Road, which was not the point officially designated by respondent. This was discovered by respondent as a result of the assignment of a new bus driver to this route in early or mid October 1995. The new bus driver was advised to discontinue this practice and to use the designated pick-up and drop-off points for petitioners' children. When petitioners complained of the change, respondent's Transportation Committee, Transportation Director and Assistant Superintendent conducted a site evaluation on October 24, 1995 that included examination of the walking distance to and waiting area at the assigned stop, traffic patterns, and road conditions. Petitioner was informed by letter dated October 25, 1995 that the committee found the designated stop at the Butler residence, Box 284, to be appropriate and consistent with board policy guidelines. The board's policy provides that, "In establishing bus stops, student safety shall be the major consideration and then proximity to the child's residence" (Policy #5711), "generally, bus stops will not be designated in a curve; where a home is located on a curve, the student may be required to walk to a designated bus stop" ("Guidelines for Distances and Bus Stops"), and "generally, buses will not stop within 2/10 of a mile of the previous stop. Exceptions may be made in cases of extreme extenuating circumstances" (Policy #5711).

The October 25, 1995 letter from respondent's Superintendent of Schools stated that petitioners' safety concerns were not without merit but could be addressed by having an adult accompany the children to the bus stop or "by establishing safety rules and routes pertinent to your family's circumstances and reviewing those regularly with your children." That letter also requested that petitioners "assist us by having a responsible adult supervise your sons at the bus stop and by reinforcing safety procedures with Michael and Robert."

At a meeting with respondent board on November 2, 1995, petitioners objected to respondent's decision and requested that Box 285 be designated the official pick-up and drop-off point for their sons. This meeting was followed by a letter to respondent dated November 8, 1995 from the Mount Hope Police Chief requesting respondent to reconsider and reevaluate its designated pick-up and drop-off points due to safety concerns. Specifically, the letter reported on an investigation by the Mt. Hope Police Department on November 3, 1995 of petitioners' claims that the designated points require their small children to walk to a spot which cannot be seen from the residences at Box 285 and Box 287 and stand on a three-foot-wide grass shoulder which goes down an embankment east of Box 284 to a stream west of Box 284. The Police Department found petitioners' claims to be substantiated and concluded that "the new school bus stop is unsafe and poses a danger to children and risk of injury during the winter months due to weather and traffic." Respondent's assistant superintendent for business responded to the police chief in a letter dated November 27, 1995, informing him that "the designated bus stop identified as the Butler residence, Box 284 has been determined to be a fair and safe location for the Kaufmans and the neighboring children in that area" and invited him to inquire if he required additional information or clarification. Petitioners commenced this appeal on February 16, 1996.

Petitioners contend that the designated bus stop location is dangerous to their children because it is in a heavy traffic area, there is no shoulder or other safe area for the children to wait and there is a stream running across the road without any guardrail protection. Petitioners also contend that it would pose no hardship on respondent to relocate the bus stop to the Bressi residence at Box 285, next door to petitioners.

Respondent denies that the designated bus stop is in a heavy traffic area and admits that neither the designated point nor the point preferred by petitioners at the Bressi residence, Box 285, has a shoulder on either side of the road, but contends that this is a normal and typical condition for a rural, residential neighborhood. While admitting there is a trench with water in it running under the road without any guardrail protection, respondent contends that petitioners' characterization of that trench as a "stream" is inaccurate. Respondent also contends that changing the designated pick-up points would pose a hardship on the school district because it would require locating bus stops at closer than .2 mile intervals required in respondent's policies and procedures which would be extremely difficult to schedule and coordinate, and inefficient to operate. Respondent further contends that the location preferred by petitioners is less safe than the designated stop and would be inconsistent with respondent's safety guidelines because the Bressi residence is located at the beginning of an "S" curve and does not provide the requisite sight distance for oncoming traffic. In addition, respondent contends that the appeal is untimely because petitioners were informed of the board's decision at its November 2, 1995 meeting but waited to commence this appeal until February 16, 1996.

Before addressing the merits, I will address a procedural matter. An appeal to the Commissioner of Education must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR '275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). The record in this case reflects that respondent's determination was made on November 2, 1995. Petitioner commenced this appeal on February 16, 1995, more than 30 days after the date of respondent's decision. The petition does not contain an explanation for petitioners' failure to file this appeal sooner. Accordingly, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. A board of education may exercise its discretion in designating pick-up points (Appeal of Guido, 33 Ed Dept Rep 244; Appeal of Klein, 27 id. 76; Appeal of Bohonyi, 26 id. 363; Appeal of Taylor, 26 id. 255), provided that the board uses care in exercising such discretion (Appeal of Klein, supra; Appeal of Bohonyi, supra; Appeal of Scheinberg, 21 Ed Dept Rep 32). In establishing a pick-up point, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Donk, et al., 27 Ed Dept Rep 254; Appeal of Taylor, supra).

While petitioners' concern for the safety of their sons is understandable, their contention that the Bressi residence at Box 285, used unofficially for two years, is safer than the designated bus stop, is inadequately supported. Petitioners have questioned the safety of the designated bus stop points but have not established that they are located in a heavy traffic area. In addition, neither the designated points nor petitioners' preferred stop has a sidewalk or shoulder, a condition common in rural and suburban areas, that in and of itself, is not a basis for deeming the current pick-up and drop-off points unsafe (Appeal of Behan, 34 Ed Dept Rep 368). While petitioners have established the existence of water running under the road at the designated bus stop, this condition was examined by respondent's committee and not found to be a hazard. The point preferred by petitioners, on the other hand, is located on a curve that would pose an unsafe condition prohibited by respondent's safety guidelines.

The conditions at both the designated bus stop and that preferred by petitioners are less than ideal. But, respondent has inspected the location and applied safety considerations in making its decision. Moreover, parents are not without an obligation to assist their children in reaching the designated pick-up point (Appeal of Czerepak, 31 Ed Dept Rep 448; Appeal of Stroub, 27 id. 270). In view of these considerations, petitioners have failed to demonstrate that respondent acted arbitrarily or capriciously when it refused to change the pick-up and drop-off points for petitioners' sons.