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Decision No. 13,769

Appeal of HERMAN FRIEDMAN, SOLOMON SCHLESINGER and DAVID FARBER from action of the Board of Education of the East Ramapo Central School District regarding a bond referendum.

Decision No. 13,769

(May 22, 1997)

Carlet, Garrison & Klein, attorneys for petitioners, Norman I. Klein, Esq., of counsel

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioners, residents of the East Ramapo Central School District, challenge the form of a proposition which was voted on by district residents on March 18, 1997. The appeal must be dismissed.

On January 28, 1997, respondent adopted a resolution calling for a special district meeting to be held on March 18, 1997 and publication of the corresponding legal notice. The purpose of the meeting was to vote on a single proposition authorizing the levy of a $22,062,000 tax to be collected in installments and used to reconstruct various buildings, parking lots and sidewalks, improve existing playground and recreational areas, purchase and install oil tanks, and purchase school buses. Petitioners commenced this appeal contending that the resolution adopted on January 28, 1997 did not comply with the requirements of Education Law '416(2) or Local Finance Law ''37.00(a) and 41.10, and requesting that the special district meeting be cancelled. In the alternative, petitioners requested, in the event the voters approved the proposition, that I void such action and order respondent not to levy a tax, adopt a bond or capital note resolution, or issue school district obligations pursuant thereto. Petitioners' request for interim relief pending a decision on the merits was denied on March 6, 1997.

As a threshold matter, respondent requests that I reject petitioners' verified reply on two grounds. First, respondent contends that the reply was served by facsimile, not by mail or personal service as required by Commissioner's regulation '275.8(b). However, the record shows that the reply was served by mail as well as facsimile. Respondent further contends that '275.3 of the Commissioner's regulations allows for a reply only where "new material" is contained in the answer, and that there was no new material in its answer. By regulation, the contents of an answer are limited to defenses to allegations contained in the petition and affirmative defenses (8 NYCRR '275.12). Therefore, I will consider the reply to the extent that it responds to material properly included in the answer.

As to the merits, petitioners contend that respondent improperly included multiple objects and purposes within a single proposition to be presented to the voters for approval. (Objects and purposes, along with their periods of probable usefulness, are delineated as separate subdivisions of '11.00 of the Local Finance Law.) In support of their position, petitioners rely on a 1948 Opinion of the State Comptroller (No. 2927) which states:

If our understanding is correct, we do not believe that the proposition voted upon furnishes the basis for issuing bonds, unless the voters had opportunity to vote for or against each purpose separately. (See village of Hempstead v. Seymour, (1901), 34 Misc. 92, 69 N. Y. S. 462.) We believe that section 416 of the Education Law and section 37.00 of the Local Finance Law require the submission of separate propositions for each purpose.

Petitioners argue that subsequent amendments to the Local Finance Law (Chapter 582, Laws of 1951) were merely intended to allow for multiple items within the same subdivision of '11.00 of the Local Finance Law to be contained in a single proposition, not to allow for the combination of objects and purposes that are otherwise separately delineated under '11.00. Petitioners also argue by analogy that if East Ramapo were a city school district, the proposition in question would be precluded by '31.00 of the Local Finance Law, thereby indicating the legislative intent to prohibit such practices.

Respondent contends that its actions comply with Education Law '416 and Local Finance Law '41.10 and are consistent with the interpretations of those statutes by the courts and the Commissioner of Education. Respondent argues that New York State courts and the Commissioner have reached conclusions contrary to the 1948 Comptroller's opinion, and cites Corbett v. Union Free School Dist. No. 21, Town of Hempstead (199 Misc. 930, aff'd, 278 AD 960), Kuhn v. Commissioner of Educ. (208 Misc. 1029, aff'd, 1 AD 533), and Matter of Flanagan (10 Ed Dept Rep 163). Respondent further argues that its proposition is consistent with those used by school districts throughout New York State, upon which the State is currently paying building aid.

In Corbett, the court held that a school district's single proposition containing four construction projects, each at a different site and each involving a different period of probable usefulness, was valid. The court concluded:

No language contained in the Education Law or elsewhere prohibits the inclusion in a single proposition of a comprehensive program for school development in a district. The board of education is necessarily vested with a large discretion in the form of a proposition to be submitted to a district meeting and in a large district where rapid and considerable increases in population have occurred, propositions in the form here employed may well be found by boards of education to be not only desirable but necessary if the physical needs of the district are to be wisely met. The power remains in the hands of the voters of the district to defeat a proposition not satisfactory to the majority. If the inhabitants of the district have sufficient confidence in the board of education to carry a proposition in the form here employed, this court believes that they have the legal power to do so (199 Misc. at 934).

In Kuhn, the court, quoting Corbett, upheld the Commissioner's decision to dismiss an appeal which challenged a school district proposition which combined site acquisition and construction. Similarly, in Flanagan, the Commissioner relied on Corbett and allowed a proposition which authorized financing for a school building addition and for construction of a new school.

Petitioners argue that Corbett "neither overrules nor does violence to the decision in Village of Hempstead v. Seymour," which they contend held that voters needed to vote for or against each purpose separately. They argue that in Corbett and Kuhn, the purposes were so interrelated that they are, in fact, a single purpose and that the purposes in the instant case are not part of any such comprehensive plan.

I disagree. First, the 1901 Seymour decision, standing alone, would not be controlling in this case. In Seymour, a village combined authorization for a village water system and a village lighting system in a single proposition. The court applied provisions of the then-existing General Municipal Law, and struck down the proposition because the amounts necessary to finance the water system and the lighting system were not stated separately. The court's statements regarding the impropriety of the voters' inability to vote separately on component parts of a proposition were merely dictum (Matter of Kuhn, 76 St Dept Rep 25). Even if, arguendo, the court had held that the General Municipal Law, as it existed in 1901, required a village to submit separate propositions, it would not necessarily bind school districts, whose finances have been governed by the Local Finance Law since its enactment in 1945. Furthermore, the 1948 Opinion of the State Comptroller, which concluded that Education Law '416 and Local Finance Law '37.00 "require the submission of separate propositions for each purpose" cannot be relied upon after the decisions in Corbett and its progeny.

Petitioners would like me to distinguish Corbett and Kuhn from the facts in the instant case because the purposes at issue in those cases are interrelated. However, there is no indication that the courts in those cases considered the relationship between the purposes which were combined in the proposition. The court simply held that no statute "prohibits the inclusion in a single proposition of a comprehensive program for school development in a district." That is, no statute prohibits school districts from combining objects and purposes in a single proposition, whether for construction at various sites as in Corbett, for site acquisition and construction as in Kuhn, or for the six purposes combined in the respondent's proposition. No requirement exists for a comprehensive plan or interrelatedness test. As the Corbett court said, a board of education has broad discretion in determining the form of its propositions and the power rests with the voters to reject propositions not satisfactory to the majority.

I have reviewed petitioners' remaining contentions and find them without merit.