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Decision No. 14,015

Appeal of KEVIN F. HOBBS from action of the Clarkstown Central School District regarding transportation.

Decision No. 14,015

(September 4, 1998)

Lexow, Berbit & Finkelstein, Esqs., attorneys for respondent, Warren E. Berbit, Esq., of counsel

Petitioner appeals the decision of the Clarkstown Central School District ("respondent") to change the transportation pick-up point for his children. The appeal must be dismissed.

Petitioner and his two school-age children reside at 20 Cragmere Oval, New City, in respondent district. Cragmere Oval is a U-shaped road which is located in a development that is presently under construction. At the beginning of the 1996-97 school year, as in prior years, respondent designated 24 Cragmere Oval as the pick-up point for petitioner's children. This address was located approximately at the mid-point of the road and was the only designated pick-up point on Cragmere Oval.

In August 1996, respondent received requests from several families located on the street to move the pick-up point. Initially, respondent's transportation department denied these requests due to more pressing business. Thereafter, the same families renewed their requests to the superintendent and assistant superintendent for business, who then requested a review and report from the transportation department. The transportation department investigated the situation and decided to change the pick-up points on Cragmere Oval.

On September 18, 1996, the school bus driver advised petitioner that the bus stop at 24 Cragmere Oval had been discontinued. Petitioner called the superintendent on that date and the superintendent told petitioner that he would look into the matter. By letter dated September 19, 1996, respondent's supervisor of transportation notified petitioner that the district had eliminated the pick-up point at 24 Cragmere Oval and created two new pick-up points at 16 and 30 Cragmere Oval, effective September 23, 1996. On September 20, petitioner wrote to the superintendent and requested reinstatement of the 24 Cragmere Oval pick-up point. By letter dated September 30, 1996, the superintendent refused to reinstate that pick-up point, but indicated that there would be a review of the pick-up points before the 1997-98 school year. Petitioner commenced this appeal on October 21, 1996.

Petitioner contends that respondent's decision to modify the pick-up point was based on erroneous information supplied by other parents residing on Cragmere Oval regarding the hazards posed by construction on the street, and the number and location of the children living on the street. Petitioner alleges that respondent neglected to investigate the actual situation before changing the pick-up point. Accordingly, petitioner contends that respondent's decision was made without careful analysis, and was arbitrary, capricious, and an abuse of discretion.

Respondent contends that the appeal should be dismissed as untimely, and because petitioner failed to exhaust his administrative remedies, failed to join necessary parties, and failed to show that he has been aggrieved. Respondent also contends that its decision to change the pick-up point was based upon a review of the facts to achieve a more equitable result and was within its discretion.

Initially, I will address the procedural issues raised by respondent. The Commissioner's Regulations require that an appeal be initiated within 30 days of the decision that is the subject of the appeal (8 NYCRR 275.16). Respondent contends that petitioner commenced this appeal on October 21, 1996, more than 30 days from September 18, 1996 when petitioner received notification of the changed pick-up point from the bus driver. However, respondent concedes that during the September 18, 1996 telephone call the superintendent may have informed petitioner that the change in pick-up points was not final. The earliest notice that petitioner had of a final decision was the written notification from the supervisor of transportation dated September 19, 1996. The thirtieth day for petitioner to appeal therefore fell on Saturday, October 19, 1996. Petitioner served respondent the following Monday, October 21, 1996. Accordingly, this appeal is timely (see, General Construction Law "25-a).

Respondent also contends that the appeal must be dismissed on the ground that petitioner failed to exhaust his administrative remedy by neglecting to appeal the superintendent's decision to the board of education prior to initiating this appeal. In this instance, respondent has failed to articulate any requirement in statute, regulation or board policy which would require petitioner to appeal to the board of education before exercising his right to initiate an appeal pursuant to Education Law "310. Consequently, there is no basis to dismiss this appeal for failure to exhaust an administrative remedy (Appeal of Deleewerk, 37 Ed Dept Rep 453).

Respondent further contends that the appeal should be dismissed because petitioner failed to join as necessary parties certain other families who reside on Cragmere Oval. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Williams, et al., 36 Ed Dept Rep 270; Appeal of Edward G., 36 id. 9; Appeal of Deitz, 35 id. 261). However, in this appeal, petitioner requests that the pick-up point at 24 Cragmere Oval be restored, not that the two new points be eliminated. A decision in petitioner's favor would not necessarily adversely affect the other families on the street. Therefore, they do not need to be joined as necessary parties.

Respondent also maintains that the appeal should be dismissed because petitioner has not been harmed by its decision and, therefore, petitioner lacks standing to bring this appeal. To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his personal or property rights (Appeal of Szymkowiak, 36 Ed Dept Rep 204; Appeal of Shabot, 35 id. 289; Appeal of Goloski, 34 id. 565; Appeal of Ulcena, 33 id. 328). Petitioner's children now have to walk to a different pick-up point. While petitioner does not allege that the change itself has injured his children, they have been affected by respondent's decision. Therefore, I will not dismiss the appeal for lack of standing.

The appeal, however, must be dismissed on the merits. A board of education may exercise its discretion when designating pick-up and drop-off points, (Appeal of Marsh, 36 Ed Dept Rep 134; Appeal of Kaufman, 36 id. 45; Appeal of Guido, 33 id. 244) provided that the board uses care in exercising such discretion (Appeal of Marsh, supra; Appeal of Kaufman, supra; Appeal of Klein, 27 id. 76). In establishing a pick-up point, a board of education must balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Marsh, supra; Appeal of Krauciunas, 35 Ed Dept Rep 107). The record indicates that respondent's supervisor of transportation and assistant supervisor of transportation reviewed the situation before changing the pick-up points. Specifically, the assistant supervisor examined and measured various distances on the street, re-inspected the neighborhood and the state of homes under construction and vacant lots, and checked lines of sight before a decision was made. Based on this review, respondent's administrators decided that two new stops should be created on Cragmere Oval because more houses had been constructed and occupied since the stop at 24 Cragmere Oval was initially designated and the number and concentration of children to transport had changed since that time. In addition, the new stops roughly divide Cragmere Oval into thirds to provide a fairer and more equitable result for the residents of Cragmere Oval. Respondent asserts that the change did not cause any additional expense or unduly delay the bus on its route. Respondent also states that the pick-up points will be reviewed before the next school year. The record demonstrates that respondent's administrators considered pupil safety and convenience, routing efficiency and costs in changing the pick-up point. In view of these considerations, petitioner has failed to demonstrate that respondent acted arbitrarily or capriciously when it changed the transportation pick-up points on Cragmere Oval.

I considered the parties' remaining contentions and find them without merit.