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Decision No. 13,811

Appeal of LINDA RHEAUME-WELLENC, on behalf of GREGORY WELLENC, from action of the Board of Education of the Marcellus Central School District regarding transportation.

Decision No. 13811

(August 12, 1997)

Bond, Schoeneck & King, LLP, attorneys for respondent, Donald E.

Budman, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the denial by the Board of Education of the Marcellus Central School District ("respondent") of her request to change the transportation pick-up point for her son, Gregory, and seeks an order directing the relocation of that pick-up point. The appeal must be dismissed.

Petitioner alleges that the existing bus stop is unsafe for Gregory, who is in kindergarten, and seeks to have the transportation pick-up point changed to her home. Petitioner lives in the only house on Sherman Road. The house is in the Town of Otisco but in the Marcellus Central School District. According to petitioner, Gregory's pick-up point is 8/10 of a mile from their house, and Gregory must walk through the woods, down two secluded roads with no shoulder, down a hill to the corner of Amber and Case Roads, where the speed limit is 45 mph and is subject to high winds. When she bought her home in May 1995, petitioner asserts that the sellers and the realtor told her the bus had been coming right to the door for the past five years to take the sellers' children to school. Petitioner states that when she was assigned the pick-up point, she assumed it had to be a mistake because the house had been vacant for a period of time.

Petitioner telephoned the district's Transportation Director, Karen Pollard, who informed her that the bus would not travel on seasonal roads, and Sherman Road had a sign designating it as a seasonal road. Ms. Pollard also informed petitioner that two years before, the district had hired the Pupil Transportation Safety Institute (PTSI) to study the district's roads and reconfigure the bus routes to maximize safety and efficiency. The study concluded that Hayden Road, the road leading directly to Sherman Road, was unsafe for travel by a school bus. Sherman Road itself was not considered part of the study because no family with school age children resided there at that time.

Petitioner then contacted Donald Yurkonis, the district's interim business manager, who agreed to inspect Sherman Road. According to his affidavit, Mr. Yurkonis found Sherman Road to be in very poor condition and noticed it was posted as a seasonal road. He also informed petitioner that the designated pick-up point was a group stop which had previously been used by the district without any safety concerns. Mr. Yurkonis informed petitioner he would speak with the superintendent, Paul Bristol, about petitioner’s concerns. Mr. Bristol reiterated that the PTSI study determined that Hayden Road was unsafe for bus travel. The only other way to access Sherman Road would be to go down Amber Road, which was a much longer route and would take the bus out of the district's boundaries. Mr. Bristol also stated that Sherman Road had not been included in the PTSI study because the only house on it was vacant at the time. He stated, though, that had Sherman Road been included in the PTSI study, it would have been designated a "no travel" road. Furthermore, it was the district's policy to exclude from bus routes roads that were considered unsafe, and because both Sherman and Hayden Roads were unsafe for bus travel, the district could not send a bus to petitioner's home.

Mr. Bristol nonetheless contacted the PTSI executive director, Ted Finlayson-Schueler, and asked him to visit Sherman Road to assess its safety. Mr. Finlayson-Schueler determined on September 5, 1996, that "[b]ased on all the work we have done in establishing fair, safe and efficient routing and stop placement, it appears to me that the current bus stop is the best alternative." The report further concluded that "under no circumstances, should a bus go down to the house," and that it would not be practical, safe, or efficient to use one of the District's smaller vehicles to pick up only one child.

Mr. Bristol, the Assistant Superintendent Tim Barstow, and School Board President Tim Dudley also personally inspected the road. Each found Sherman Road unsafe for school bus travel. Respondent asserts that Sherman Road is narrow, uneven, steep and lacks a shoulder, guard rails or a proper turnaround point. Also, just beyond petitioner's home, the road deteriorates significantly, leaving the road accessible from only one direction. Hayden Road, the road leading directly to Sherman Road, was designated a "no travel" road by the district. Also Sherman Road had been posted as a seasonal road, meaning that it is not adequately maintained in the winter. Moreover, respondent states that the current bus stop is safe in that it is set back from Amber Road and the bus only stops on one side of the road so that children do not have to cross the road.

Petitioner asked to bring her concerns to respondent at its September meeting. Mr. Bristol granted her request. On September 13, 1996, prior to the meeting, school board president Dudley sent petitioner a letter, informing her that based on safety concerns and the opinion of the PTSI, the decision had been made not to provide a bus to petitioner's home. Petitioner subsequently postponed her appearance before the board until the October 15 meeting. Petitioner also submitted a Freedom of Information Law request to the district on September 26 seeking various documents and records. The district responded on October 8, but petitioner felt she did not receive all the information to which she was entitled. Petitioner nonetheless appeared at respondent's October 15, 1996 meeting. At that meeting, respondent reiterated that the September 13 letter constituted its final determination. Petitioner then asked to appear at the November board meeting. Respondent told her it would not be necessary because the decision set forth in the September 13 letter was affirmed. Petitioner requested that respondent once again put the decision in writing so that she would have 30 days from the date of the board meeting to appeal. Respondent refused. This appeal ensued on December 5, 1996.

Petitioner feels that respondent has not adequately explained its concerns about Sherman Road. She claims that all the other roads on the route, including Sherman Road, were 20 feet wide without any shoulder. Only Amber Road had approximately 3 - 4 feet of shoulder on each side. She claims that there is a turnaround across from her house which is large enough for the bus, that there are other dead-ends, cul-de-sacs and roads without turnarounds that the bus travels on, and that Sherman Road has been consistently plowed and maintained. She also claims other public service vehicles have no trouble accessing the road. Furthermore, since petitioner convinced the town to move the seasonal sign to a point beyond her home, the road in front of her home was no longer considered seasonal. Accordingly, she argues that the PTSI's September 5, 1996 report was based on inaccurate facts. Additionally, she claims that respondent's decision violates its transportation policy. She states that respondent's offer to redistrict her and its suggestion that she use an after school program to which bus transportation is provided are insulting and unreasonable responses.

Respondent contends that its decision not to change the current pick-up point was not arbitrary, capricious or unreasonable and should not be disturbed. Respondent also contends that the petition is untimely, and that the majority of petitioner's reply merely buttresses her allegations in the petition.

Initially, I will address several procedural issues. First, the purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions or exhibits that should have been in the petition (Appeal of Catherine B., 36 Ed Dept Rep ____ (Decision #13797, July 25, 1997); Appeals of Lindauer and McKee, 34 id. 596). Accordingly, while I have reviewed petitioner's reply, I have not considered those portions containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

Secondly, an appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent sent a letter to petitioner on September 13, 1996 informing her that the district had decided not to provide a bus to petitioner's home. Petitioner argues that she should have thirty days from her appearance before respondent on October 15. While petitioner requests that I excuse her late filing, the time to commence an appeal runs from the date of the decision under review (Appeal of Ragot, 35 Ed Dept Rep 299). This appeal was not filed until December 5, 1996, more than thirty days after respondent's final decision of September 13, 1996. Moreover, petitioner's requests for reconsideration of the challenged decision, i.e., to appear before the board, do not extend the thirty day time period from the September 13, 1996 letter (Appeal of Ragot, supra; Appeal of Goodman, 35 Ed Dept Rep 93). Even if the reconsideration requests did extend the time period, this appeal was still not filed within thirty days of respondent's October meeting. Accordingly, the appeal must be dismissed as untimely. The appeal must also be dismissed on the merits. A board of education may exercise its discretion when designating pick-up points (Appeal of Heuser, 36 Ed Dept Rep 368; Appeal of Guido, 33 id. 244; Appeal of Klein, 27 id. 76; Appeal of Bohonyi, 26 id. 363), 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). The law does not require a school district to provide transportation for the pupil directly to and from his home (Ossant v. Millard, 72 Misc 2d 384, 339 NYS 2d 163). Moreover, Education Law "3635 does not require door-to-door transportation and boards of education have discretion to require students to walk to pick-up points from which transportation will be provided (Appeal of Marsh, 36 Ed Dept Rep 134; Appeal of Mechanick, et al, 33 id. 692). In establishing pick-up points, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Marsh, supra; Appeal of Donk, et. al., 27 Ed Dept Rep 254; Appeal of Taylor, 26 id. 255).

Furthermore, respondent contends that a student's parents are responsible for their child's safe transportation to and from a designated pick-up point. Where a student's home is on a dangerous road or at a remote location, the parents are not free from an obligation to assist the student in reaching school or a bus pick-up point (Appeal of Kaufman, 36 Ed Dept Rep 45; Matter of Roach, 25 id. 253). It is the responsibility of the parent, and not the district, to see that the child safely reaches the pick-up point (Pratt v. Robinson, 39 NY2d 554, 384 NYS2d 749; Appeal of Pauldine, 35 Ed Dept Rep 54; Appeal of Waklatsi, 33 id. 552; Appeal of Fausel, 30 id. 395; Appeal of Klein, 27 id. 76).

The record demonstrates that respondent considered petitioner's request for a change in her son's pick-up point. The Superintendent, Assistant Superintendent, Transportation Director, Interim Business Manager, School Board President and the PTSI transportation expert all examined Sherman Road, Hayden Road and the pick-up point at Amber Road, and all determined that the pick-up point was the safest alternative. Respondent determined that the existing bus stop was safe and within the parameters of the district's policy, which provides that "all students living on roads with a speed limit of 30 mph or less will be picked up at group stops located for safety and efficiency, established by the Transportation Office, except when a house stop is required because of a special safety hazard situation as determined by the Transportation Office." While the road at the pick-up point may have a speed limit over 30 mph, the policy refers to the speed limit of the road on which the student lives; Sherman Road itself does not have a speed limit over 30 mph.

While the pick-up point may be less than ideal, respondent nonetheless examined petitioner's request, visited and inspected the site and adequately considered the safety factors. Although the PTSI report on September 5 included the fact that Sherman Road was posted as seasonal, and petitioner asserts that the sign was later moved, that factor was not the sole determinant, and the other factors respondent relied on in its review appear reasonable and sufficient to support the district's decision. Moreover, a board of education is not required or authorized to continue to provide transportation that was previously supplied in error (Appeal of Pauldine, 35 Ed Dept Rep 54; Appeal of McMillan, 31 id. 343). Therefore, respondent has no obligation to continue utilizing the pick-up point provided to the previous property owners.

While I am sympathetic to petitioner's concerns about her son's safety, it is the responsibility of a student's parents, and not the school district, to ensure the student's safety in traveling to and from the designated transportation pick-up point. Respondent correctly notes that decisions of the Commissioner of Education have often stated that pick-up points in rural and suburban areas require children to travel on narrow roadways, on busy roads or in inclement weather (Appeal of Pauldine, supra; Appeal of Kraciunas, 35 Ed Dept Rep 107; Appeal of Behan, 34 id. 368; Appeal of Mechanick, 33 id. 692). Based on the record before me, I cannot conclude that respondent's determination regarding the pick-up point was arbitrary, capricious or unreasonable. Accordingly, the appeal must be dismissed.

Since the appeal is dismissed for these reasons, I decline to address the parties' remaining contentions.



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