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Decision No. 13,985

Appeal of FRANK A. OCWIEJA, on behalf of MATTHEW J. and KAREN E. OCWIEJA, from action of the Board of Education of the Greenburgh Central School District regarding a school district boundary.

Decision No. 13,985

(August 17, 1998)

Arnold B. Green, Esq., attorney for respondent

CATE, Acting Commissioner.--Petitioner challenges the refusal of the Board of Education of the Greenburgh Central School District ("respondent") to consent to altering the boundary line between the Greenburgh Central School District ("Greenburgh") and the Edgemont Union Free School District ("Edgemont"). Petitioner requests an order directing respondent and the Edgemont Board of Education to change the boundary line between the districts so that property owned by petitioner and others will be included in the Edgemont district. The appeal must be dismissed.

Petitioner resides on Clubway Street ("Clubway") in the Town of Hartsdale. Clubway is situated in the Greenburgh district near the boundary line that divides that district from the Edgemont district.

The record is not clear as to the series of events which give rise to this appeal. It appears, however, that in or before January 1995, petitioner and six other residents residing on Clubway wrote to the Edgemont Board of Education ("Edgemont") and requested that it obtain respondent’s consent to alter the boundary line between the two districts. By letter dated January 13, 1995, Edgemont informed petitioner that, although it was concerned with the heavy demands that current enrollment already placed on the district, it would consider petitioner’s request if he procured the written consent from respondent. By petition dated July 5, 1995, petitioner sought respondent’s consent to the boundary change. Respondent rejected petitioner’s request in a letter dated September 8, 1995.

Petitioner renewed his request to Edgemont on October 30, 1996 and, on November 14, 1996, Edgemont determined that, in light of its January 13, 1995 response, it would take no further action on petitioner’s application. The record contains no evidence that Edgemont either consented to, or rejected, petitioner’s request.

On March 26, 1997, petitioner commenced this appeal by serving his petition on respondent. Edgemont did not receive a copy of the petition and was not named as a respondent in the appeal.

Petitioner alleges that the current boundary, which was established prior to the development of the Clubway neighborhood, divides the neighborhood’s school children between the Greenburgh and Edgemont school districts. This, he claims, results in socially isolating his children from the other Clubway children who attend school in Edgemont. His children, he adds, are also geographically isolated from the other students at Greenburgh who do not reside on Clubway. Petitioner further asserts that, although the 123 homes in his immediate neighborhood technically should constitute one natural community, the district boundary effectively excludes the six Clubway homes from the educational concerns of the community.

Petitioner also maintains that respondent currently operates several bus routes through his neighborhood, which create a safety hazard for the students. Moreover, the buses that transport the students from after-school activities will not travel into the neighborhood after dark. Thus, the students are forced to walk the distance of the hill that leads into their neighborhood. Petitioner suggests that, by altering the boundaries, the number of bus routes would be reduced and the problem would be remedied. Finally, petitioner asserts that his children’s education would be enhanced if they were allowed to attend the schools in Edgemont because Edgemont has higher achievement expectations.

Respondent contends that there is no legal basis for the relief sought by petitioner inasmuch as its determination was neither arbitrary, capricious nor contrary to the best educational interests of petitioner’s children. The decision was based on a finding that the proposed boundary change would result in a loss of educational resources to the district and, thus, is not, as petitioner asserts, in the best interests of the children. In any event, respondent argues, the petition should be dismissed because it is untimely, fails to join certain necessary parties, is premature and does not qualify as a class action.

I will first address respondent’s procedural defenses. As to the issue of timeliness, it is well settled that an appeal to the Commissioner of Education must be commenced within thirty 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). Here, the act about which petitioner complains occurred on September 8, 1995, when respondent considered petitioner’s request and refused to consent to an alteration of its boundaries. Accordingly, this appeal, commenced on March 26, 1997, is untimely. Petitioner argues that the delay should be excused because he was not informed of the appeal process until February 24, 1997. However, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal, except in unusual circumstances (Appeal of Ronen, 33 Ed Dept Rep 117; Appeal of Savastano, 32 id. 326), and I find no unusual circumstances presented here.

The petition must also be dismissed for failure to join the Edgemont Board of Education as a necessary party to this appeal. An individual or entity whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Kurlans, et al., 37 Ed Dept Rep 293; Appeal of Regan, 34 id. 72, application to reopen denied 34 id. 393). The boundary which petitioner seeks to change is situated between Greenburgh and Edgemont. Inasmuch as Edgemont would be adversely affected by a decision in favor of petitioner, the board is a necessary party to this appeal. Petitioner’s failure to join it as such requires that the appeal be dismissed.

The appeal must also be dismissed on the merits. The decision of a board of education to refuse to consent to a boundary alteration will not be set aside, absent proof that the refusal was not in the best educational interests of the children involved or was arbitrary or capricious (Appeal of Regan, supra; Appeal of Bearup, 32 Ed Dept Rep 570; Appeal of Salerni, 27 id. 393). The paramount consideration in a case involving a proposed alteration of district boundaries is the educational interests of the children involved (Appeal of Regan, supra; Appeal ofBearup, supra). Petitioner must make a clear showing that the denial of the relief requested will adversely affect those interests (Appeal of Regan, supra; Matter of Ruscoe, et al., 14 Ed Dept Rep 197; Matter of Denslow, et al., 8 id. 17). The record indicates that petitioner has failed to make this showing and that respondent’s determination was not arbitrary or capricious.

Petitioner maintains that his children and the children of the six other families on Clubway are geographically isolated from the children they meet in respondent’s schools, who do not reside on Clubway, and that they are socially isolated, as well, from the other Clubway children who attend school in Edgemont. Petitioner argues that the interests of his children would be best served by their attendance in Edgemont schools because they would have greater opportunities to form and maintain friendships with the children who reside in their neighborhood and attend school in Edgemont. While it is natural that parents desire that their children attend school with other children in the neighborhood, that desire is not a sufficient basis for ordering a school district boundary alteration (Appeal of Regan, supra; Appeal of Bearup, supra; Appeal of Kosnick, 25 Ed Dept Rep 466). To hold otherwise would, inevitably, require the constant altering of district boundaries based on personal preferences (Matter of Cooper, et al., 15 Ed Dept Rep 293).

Moreover, isolation from one’s peers is not a sufficient reason to alter boundaries (Appeal of Bearup, supra; Matter of Citizens for a Unified Wading River, Inc., et al., 22 Ed Dept Rep 425) and, in any event, geographic isolation provides the basis for a boundary alteration only when the isolation results from an unanticipated external event or historical accident (Appeal of Bearup, supra; Appeal of Kosnick, supra;Matter of Cooper, et al., supra). The boundary under review has existed since the 1840’s, and, thus, any isolation the students may experience would not be the result of an unanticipated event or historical accident. Furthermore, petitioner offers only conclusory statements, and no concrete evidence, to establish that, without the boundary change, his children will be isolated from the other children attending school in Edgemont.

Petitioner further contends that changing the boundary would serve his children’s educational interest because Edgemont has higher performance expectations for its students. Petitioner, however, has not proffered any evidence to support his claim, and, even if proven, such a claim is not a basis for altering school district boundaries. (Appeal of Bearup, supra; Appeal of Kosnick, supra).

Finally, the effect of a boundary change on the educational resources of respondent’s district must also be considered (Appeal of Regan, supra; Matter of Kirschmann, 19 Ed Dept Rep 424). Here, petitioner admits that the proposed boundary change would result in a loss of tax revenue to respondent. This loss of revenue would, inevitably, adversely affect the remaining students and programs in respondent’s district by decreasing the educational resources available to them. Given the negative impact on respondent’s educational programs, as well as the speculative nature of petitioner’s claims, the appeal must be dismissed (see, Appeal of Cavaliere, 34 Ed Dept Rep 224).

In view of this disposition, I will not consider the parties’ remaining contentions.