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Decision No. 14,035

Appeal of JOSEPH LISNOFF from action of the Board of Education of the City School District of the City of New York, relating to rezoning.

Decision No. 14,035

(November 23, 1998)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Andrea Moss, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the implementation of a rezoning plan recommended to respondent board of education by Community School Board 27. The appeal must be dismissed.

Petitioner is a resident of Community School District 27 ("CSD 27"), and his son was a student at PS 56 which was a K-6 school located in District 27. A rezoning plan was approved by the board of education of CSD 27 on February 13, 1997 to alleviate overcrowding in the schools of the district. One facet of that plan was for PS 56 to become a school for grades two through six only. The plan was approved in part by respondent’s Office of Zoning on behalf of the Chancellor of the New York City School District on April 24, 1997.

Petitioner challenges respondent’s rezoning plan in CSD 27, asserting that the plan will not alleviate overcrowding of schools in the district, will result in greater racial imbalance in at least one school, will deprive his son of the opportunity to be in a school with younger children, will unfairly benefit some neighborhoods, and will limit the opportunity for siblings to attend school together in their younger years. Petitioner requests a return to the school usage pattern that existed prior to the rezoning.

Respondent contends that petitioner failed to exhaust his administrative remedy of an appeal to respondent, that petitioner has failed to demonstrate a legal right to the relief he requests, that District 27’s rezoning plan is a well-planned and good faith effort to address the problem of overcrowded schools in the district, and that the rezoning plan is not discriminatory.

In his petition which was served May 9, 1997, petitioner requested interim relief. That request was denied on June 3, 1997.

By applications dated May 30, 1997 and March 13, 1998, petitioner has sought leave to submit two additional affidavits. The first application was submitted in response to the papers submitted by respondent in opposition to petitioner’s stay request, but the stay was denied before the application was received in my Office of Counsel. The second application does not contain information that is useful to the resolution of petitioner’s appeal. Accordingly, both applications are denied and I will not consider the affidavits submitted therewith.

The decision from which petitioner seeks review was made by the Office of Zoning on behalf of the Chancellor on April 24, 1997. Petitioner commenced this appeal on May 9, 1997, without first appealing that decision to respondent. Respondent argues that the appeal should be dismissed because petitioner failed to first appeal to respondent. However, there is no statutory or regulatory requirement that petitioner appeal the Chancellor’s action to the board of education prior to bringing an appeal to the Commissioner pursuant to Education Law "310. Accordingly, I will not dismiss this appeal for failure to exhaust administrative remedies (Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713; Appeal of Deleewerk, 37 id. 453).

This appeal must, however, be dismissed on the merits. Decisions concerning attendance zones and the utilization of school facilities will not be overturned absent a clear showing that the action of the school authorities was arbitrary, capricious or contrary to sound educational policy (Appeals of Johnson, et al., 37 Ed Dept Rep 465; Matter of Van Horne, 21 id. 651). The burden is on petitioner to demonstrate that school authorities lacked a reasonable basis for their determination or otherwise abused their discretion (8 NYCRR 275.10; Appeal of Kershaw, 37 Ed Dept Rep 186; Matter of the Board of Education of Community School District No. 26, et al., 21 id. 119).

Petitioner herein has failed to make such a demonstration. His assertions that the rezoning plan will not alleviate overcrowding in district schools and will result in greater racial imbalance are conclusory in nature and do not provide a basis for me to find in his favor on those issues. I note that respondent will be receiving data periodically from the board of education of CSD 27 to ensure that racial balance is maintained under the rezoning plan. In addition, petitioner’s claims that his child will be discriminated against by not having younger children in his school and that siblings will not be able to attend the same school simply do not state a valid claim for relief against respondent. Petitioner has also failed to establish that the rezoning plan improperly benefits one community over another.