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Decision No. 13,904

Appeal of LYNN CANOSSA, MERYL SCHIOWITZ, LORI ROACH and BETTY MARZIGLIANO, on behalf of their children, JOSEPH CANOSSA, JODI SCHIOWITZ, CHRISTOPHER ROACH and JOHN MARZIGLIANO, from action of the Board of Education of the North Bellmore Union Free School District regarding transportation.

Decision No. 13,904

March 30, 1998

Peter G. Albert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the North Bellmore Union Free School District ("respondent") that their children are not entitled to transportation to and from the Saw Mill Road Elementary School. The appeal must be dismissed.

Under its transportation policy, respondent provides transportation for pupils in grades K-3 who reside more than one-half mile from the school they attend and for pupils in grades 4-6 who reside more than one mile from such school. During the 1996-97 school year, petitioners' children attended second and sixth grade at respondent's Saw Mill Road Elementary School. They received bus transportation in prior years, but in June 1996 the district, using a private cartographer, remeasured the distances for bus transportation eligibility and determined that they were not eligible. Petitioners were notified of this determination by a letter from the district's business manager dated August 29, 1996. Respondent provided transportation for the first week of school to give them time to make other arrangements. Petitioners brought this appeal and requested a stay order. Petitioners' request for interim relief was denied on October 11, 1996.

Petitioners object to respondent's remeasurement of the distances and the use of a new point at the school from which the measurements were made. Petitioners further maintain that there is room for their children on buses passing by their homes. Respondent alleges that the new measurements were based on an aerial survey performed by a private cartographer and maintains that its measuring point was proper. In addition, respondent denies that transportation can be provided on a "space available" basis.

Initially, I must address a procedural issue. Both parties applied under 8 NYCRR 276.5 for permission to file additional papers, which they called a reply and a supplemental affidavit. These additional submissions provide facts essential to the determination of this appeal, and, accordingly, I have considered them in this appeal.

Education Law "3635(1) provides that the distance for transportation eligibility is to be measured by the nearest available route from a student's home to school. This section requires school districts to provide transportation for all children in grades kindergarten through eight who live more than two miles from the school which they legally attend. A district may choose to provide transportation for lesser distances as long as it is offered equally to all children in the district. As noted above, respondent does provide transportation for distances of less than two miles and its transportation policy provides for the uniform application of that policy. As long as respondent uses a reasonable means of measurement and applies it impartially, the Commissioner will not set aside the determination (Appeal of Stegner, 35 Ed Dept Rep 502; Appeal of Rosenberg, 14 id. 333).

Petitioners contend that respondent's method of measurement -- an aerial survey, is inaccurate and improper. This use of maps is not unreasonable (Appeal of Rosenberg, supra). The accuracy of particular measurements may be confirmed, by ground measurements, as has been done in this instance. Accordingly, based on this record, I cannot find this methodology to be unreasonable.

Petitioners also object to respondent's relocation of the measuring point. Petitioners allege that in prior years measurements were made from the intersection of a driveway in front of the main entrance to the school. They allege that they have measured the four distances from their homes to that point, using a measuring wheel, and found them to be over one-half mile for the second grade pupils and over one mile for the sixth grade pupils. In its supplemental affidavit, respondent's business manager alleges that he has personally measured those distances and found them to be under one-half and one mile, respectively. He does not state how he made his measurements.

Specifically, petitioners allege that the measuring point was changed from the driveway at the main entrance to a corner of the school property. Respondent's transportation policy, adopted June 2, 1996, defines the entrance to school as "that point where the access to the school property (a paved walkway on school ground) meets the public road." When the initial measurements were made, and until a few days before the petition was served, there was no walkway at the corner of the school property. However, it appears from the record that the paved walkway was authorized and planned earlier, although its completion was delayed. School districts have broad discretion in selecting measurement points on school property for purposes of determining eligibility for transportation (Matter of Gundrum v. Ambach, 55 NY2d 872, 448 NYS2d 466, revg 83 AD2d 911, 442 NYS2d 661; Appeal of Stegner, supra; Appeal of Scheuerman, et al., 22 Ed Dept Rep 143). It may measure from any point, as long as it does so fairly and consistently (Matter of Law, 12 Ed Dept Rep 224, aff'd Sup. Ct. Albany Co. n.o.r.). Petitioners have failed to establish that respondent abused its discretion in measuring from the corner, and they do not allege that their children qualify for transportation if that measuring point is used.

Petitioners also allege that there is room for their children on school buses passing by their homes. Under Education Law "3635(1)(a), all children in the same age group residing in the same distance from school are "in like circumstances". Respondent lacks authority to transport children who do not meet the distance requirement of "3635, notwithstanding the fact that there may be room on the bus (Matter of Studley v. Allen, 24 AD2d 678, 261 NYS2d 138; Appeal of Kluge, 31 Ed Dept Rep 107; Appeal of Mermelstein, et al., 30 id. 119; Appeal of Pavony, et al., 27 id. 295; Appeal of Rosenberg, supra).

Finally, petitioners allege that the district has admitted mistakes in the use of the aerial survey for measurement purposes. The business manager concedes that a clerical error was made with regard to a student and states that the distance was remeasured using a measuring wheel, and that the pupil initially denied transportation was found to be eligible for it. That was a proper course of action.

In sum, petitioners have failed to establish that respondent acted in an arbitrary, capricious or unreasonable manner in denying their children transportation.