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Decision No. 14,109

Appeal of JOHN L. BEILMAN, on behalf of the LANCASTER TAXPAYERS ASSOCIATION, from action of the Board of Education of the Lancaster Central School District regarding a bond proposition.

Decision No. 14,109

(April 15, 1999)

Hodgson, Russ, Andrews, Woods & Goodyear, LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

MILLS, Commissioner.--Petitioner contends that the Board of Education of the Lancaster Central School District ("respondent") exceeded the authorizing language of a 1996 bond proposition approved by the voters when it sought to develop plans for an addition to the district’s high school. The appeal must be dismissed.

On April 24, 1996, district voters approved a proposition authorizing the expenditure of $31.7 million for capital projects. Prior to the vote, respondent disseminated a special edition of the district newsletter entitled "Your Lancaster Schools" and a leaflet entitled "A Long Range Plan for Your Schools." In the newsletter, improvements at the high school were described as "physical education/athletics addition and site work." There was no reference to athletic facilities in the leaflet. On April 22, 1996, respondent conducted an informational meeting. The minutes of the meeting indicate that there was no discussion of the proposed athletic additions. According to the affidavit of Edward Carlsen, Sr., respondent’s president, respondent originally contemplated that the addition would be a two-station gymnasium built as an addition behind the high school and attached by a corridor that would include team and training rooms, and shower and restroom facilities. That configuration was shown in a site plan prepared by Trautman Associates, dated March 25, 1996.

Mr. Carlsen avers that after the voters approved the capital project proposition, the district’s physical education staff suggested reevaluating the addition. According to Mr. Carlsen, the suggestion was for a larger facility that could also be used for additional purposes, such as marching band, graduation and interscholastic competitions. Original cost estimates provided in May 1996 indicated that a larger facility could not be built within the budget established for the two-station gymnasium. However, after further cost estimates were developed eliminating some site work and using different materials, it was determined that a facility nearly four times larger than the originally contemplated gymnasium could be built within the budget. Mr. Carlsen states that the new facility would still be located behind the high school and attached to it by a corridor, as originally contemplated. On September 14, 1998, after the superintendent presented information about the larger facility, respondent approved a resolution (by a vote of 5 to 2) "to approve and direct Trautman Associates to proceed with the development plans of a fieldhouse complex instead of a two station gym."

Petitioner contends that respondent’s September 14 resolution authorized the construction of a $2.7 million athletic "fieldhouse". Petitioner asserts respondent exceeded its authority when it passed the resolution, because the 1996 bond proposition precludes construction of such a structure. He maintains that the bond proposition precludes any structure that does not "include original furnishings, equipment, machinery, apparatus and all necessary alterations, site work and ancillary work required therefore...." Petitioner argues that any plan to build a "fieldhouse" and stay within the cost limit of the bond proposition by eliminating or reducing any items required for the final full use and operation of the "fieldhouse" is prohibited by the proposition. Petitioner also contends that voters would not have approved construction of a $2.7 million free-standing structure, which would be the second largest structure in the Town of Lancaster.

I will first address the procedural issues. Respondent asserts that petitioner raises new issues and submits new exhibits in his reply that are unresponsive to respondent’s affirmative defenses or were available at the time the petition was filed. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Cole, et al., 37 Ed Dept Rep 407; Appeal of Rampello, 37 id. 153; Appeal of Lawson, 36 id. 450). Therefore, while I have reviewed petitioner’s submissions, I have not considered those portions of the reply containing new allegations and exhibits which are not responsive to new material or affirmative defenses set forth in the answer.

Respondent asserts that petitioner lacks standing because he brings this appeal on behalf of the Lancaster Taxpayers Association ("LTA"), an unincorporated association. An unincorporated association lacks standing to maintain an appeal to the Commissioner (Appeal of the Parent-Student Coalition of Fallsburg, 37 Ed Dept Rep 522; Appeal of Concerned Taxpayers Awareness Group, 35 id. 448; Appeal of The Plaza School Playground Committee, 35 id. 83). There is no evidence that the LTA is incorporated.

Subsequent to the filing of respondent’s opposition to petitioner’s request for a stay order, petitioner attempted to amend the caption to his petition to indicate that he was bringing the petition on his own behalf as well as that of the LTA. However, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law "310 than the association itself (Appeal of Ben-Reuben, et al., 33 Ed Dept Rep 299). Accordingly, the appeal must be dismissed for lack of standing.

Even if the appeal were not dismissed for lack of standing, it would be dismissed on the merits. Respondent’s president, Mr. Carlsen, avers that respondent has not yet determined that a "fieldhouse" will be built. He asserts that the September 14 resolution merely authorized the architects to develop plans to further explore this option; it did not authorize construction. Furthermore, respondent asserts that the language of the 1996 bond proposition authorized "additions and improvements to various district buildings." Respondent contends that the proposal for a connected "fieldhouse" is within the scope of the capital project approved by the voters because it is a physical education/athletics addition to the high school, it meets the same purpose as a gymnasium and it falls within the same cost budget. Thus, respondent maintains the contemplated "fieldhouse" is essentially the same as the two-station gymnasium originally contemplated and authorized by the voters, and is fully within respondent’s discretion.

I agree. The bond proposition provided authorization to "partially reconstruct and construct additions and improvements to various district buildings." It did not delineate the exact nature of the athletic addition to the high school. Nevertheless, the project described by respondent appears to meet the same purposes as originally contemplated while providing added benefits to the district within the budget remaining from the total bond package (see, e.g., Appeal of Friedman, et al., 36 Ed Dept Rep 431; Appeal of Griffiths, 33 id. 347). Petitioner submits no proof that respondent’s determination is arbitrary, capricious or contrary to any legal standard. Accordingly, there is no reason for me to substitute my judgment for that of respondent, who has discretion to determine the specifics of the project.