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Decision No. 13,816

Appeal of FRANCINE ROSEN, on behalf of STEPHANIE ROSEN, from action of the Board of Education of the Massapequa Union Free School District regarding transportation.

Decision No. 13,816

(August 18, 1997)

Margiotta & Ricigliano, attorneys for petitioner, Wayne G. Edwards, Esq., of counsel

Van Nostrand & Martin, attorneys for respondent, LeRoy Van Nostrand, Jr., Esq., of counsel

CATE, Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Massapequa Union Free School District ("respondent") that her daughter, Stephanie, is not entitled to transportation to and from the Unqua Elementary School. The appeal must be dismissed.

The facts in this case are not in dispute. Respondent's school district provides transportation for children in grades one through six if the distance from their home to school is at least one mile. Education Law '3635(1)(a) requires this distance to be measured by "the nearest available route." By letter dated April 16, 1997, petitioner requested a bus pass for Stephanie who was a first grader at that time. By letter dated April 17, 1997, respondent's director of transportation denied the request, indicating that the distance from petitioner's house to the school is 3,622 feet, less than the minimum distance for eligibility.

Petitioner contends that respondent used an improper route to measure the distance, in that it included Lee Place Walkway, a macadam footpath though a public park owned, operated and maintained by the Town of Oyster Bay. Petitioner argues that the route from home to school should not include shortcuts though private or public lands that are not highways, roads, streets or school property. If the Lee Place Walkway were not considered a proper route, the nearest available route would exceed one mile, and Stephanie would qualify for transportation. Petitioner argues that Education Law '3621(3) defines "route" as "a highway or highways over and upon which a school bus regularly travels in accordance with the schedule maintained for the transportation of pupils from their homes to school," thereby precluding the use of shortcuts in determining distances for the purposes of transportation eligibility. Petitioner further argues that although the identical issue was recently unsuccessfully litigated by her neighbors (Arlyn Oaks Civic Ass'n v. Brucia, et al., 171 Misc. 2d 634), the court was limited by the rational basis standard. Petitioner requests a review of the factual issues and seeks a clear definition of the meaning of "route" as used in Education Law "'3651" [sic].

Respondent argues that this appeal is barred by resjudicata and election of remedies because petitioner and her neighbors supported and participated in the Arlyn Oaks proceeding. In the alternative, respondent argues that the Nassau County Supreme Court's decision in Arlyn Oaks -- that Lee Place Walkway was properly used in determining transportation eligibility -- is a controlling precedent in this appeal.

As to the merits, respondent argues that the term "route," as used in Education Law '3635, means "the nearest available publicly maintained route." Respondent also argues that the definition contained in Education Law '3621, upon which petitioner relies, is expressly limited in its application to Part II of Article 73, and does not apply to Part III, which contains '3635.

As a preliminary matter, I will address the procedural issues raised by respondent. By Order to Show Cause dated November 8, 1996, the Arlyn Oaks Civic Association, Francis X. Duffy, Ann DeLetto, and John Sweeney commenced a special proceeding pursuant to CPLR Article 78 seeking an order enjoining the superintendent and board of education of the Massapequa Public Schools from using measurements over Lee Place Walkway through Marjorie Post Park to determine transportation eligibility. In a decision dated January 14, 1997, the Nassau County Supreme Court found that the school district's transportation policy had a rational basis and dismissed the case (Arlyn Oaks Civic Assn'n v. Brucia, et al., supra). In its decision, the Nassau County Supreme Court noted that the "Arlyn Oaks Civic Association has not been described or characterized in the papers submitted or evidence heard, but it appears to be an association of persons who reside in a particular geographical area within the Massapequa Public School District," and recognized the individual petitioners as parents of children who attended Unqua Elementary School. There is no indication, however, that the petitioner in the instant proceeding was a party to the litigation or had her interests represented in that case. Accordingly, I will not dismiss the appeal on the grounds of election of remedies or resjudicata, both of which require identity of parties.

I must, however, dismiss the petition on the merits. The definition of "route" found in "3621, upon which petitioner relies, is inapplicable to Article 73, Part III. Rather, as the Commissioner has consistently held, Education Law "3635 allows school districts to use the nearest available publicly maintained route between a student's home and school to determine the student's eligibility for transportation. See Matter of Pizzariella, 22 Ed Dept Rep 417; Matter of Haas, 8 id. 63; Matter of O'Brien, 3 id. 24; Matter of Pellegrino, 2 id. 159. This includes walkways of the kind at issue in this case. The court in Arlyn Oaks reviewed the identical issue, i.e., whether Lee Place Walkway can properly be used in measuring distances for the purpose of determining transportation eligibility and reached the same conclusion. Had the legislature intended the definition petitioner suggests, it could have included such within "3635. It did not.

Petitioner implies that the Commissioner should apply a stricter standard than the rational basis test upon which the court relied. However, it has long been held that establishing transportation routes and measuring distances are matters within a board's discretion and that the Commissioner will not set aside such actions unless it appears that the board has been arbitrary, capricious or unreasonable (Matter of Machone, 7 Ed Dept Rep 80). Thus, I may not apply a stricter standard, as petitioner suggests, than the rational basis test applied by the court in Arlyn Oaks.