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Decision No. 14,194

Appeal of DANIEL MALONE and VIRGINIA TROMBLEY, from a decision of the Board of Education of the City School District of the City of Plattsburgh regarding a reorganization plan.

Decision No. 14,194

(August 19, 1999)

Clute, Clute & Thompson, attorneys for petitioners, John E. Clute, Esq., of counsel

Stafford, Trombley, Purcell, Lahtinen, Owens & Curtin, P.C., attorneys for respondent, Dennis D. Curtin, Esq., of counsel


MILLS, Commissioner.--Petitioners, parents of children enrolled in the City School District of the City of Plattsburgh ("the district"), appeal the decision of the district’s Board of Education ("respondent") to relocate students from the Duken Elementary School ("Duken") to the Momot Elementary school ("Momot"). The petition must be dismissed.

As of the 1996-97 school year, the City of Plattsburgh school system was comprised of four elementary schools, one middle school and one high school. Due to the closure of the Plattsburgh Air Force Base in September 1995, the population at the district’s elementary schools declined by approximately 100 students. As a result, Momot had eight unutilized classrooms during the 1996-97 school year. In 1995, Momot had undergone a five million dollar renovation that modernized its facilities and provided classrooms for remedial and special education programs, music, art and pre-kindergarten programs.

As of May 1997, 230 students were enrolled at Duken and, according to respondent, enrollment was projected to decline. The school had "limited accommodations" for remedial programs, no accommodations for special education programs, no music, art or multipurpose rooms, was located on a small parcel of land with limited parking space and storage, and required "infrastructure and other renovations."

Despite declining enrollment in the district, the district’s high school suffered from a "severe lack of space" for educational programs, including science labs, special education classrooms and alternative education classrooms. This space shortage was exacerbated by the fact that the district’s administrative offices were located in the high school, occupying space that had been used previously for instruction.

On October 12, 1995 respondent adopted a resolution creating a Citizen’s Advisory Committee ("Committee") to analyze the district’s space concerns and make recommendations regarding "elementary building use and education program configuration". The 21 member Committee was comprised of board members, administrators, teachers and parents.

The Committee began its investigation on December 6, 1995, and held eleven meetings at which the public had the opportunity to ask questions and provide input. As part of its investigation, the Committee visited each of the district’s facilities, studied the district’s enrollment trends, city development plans, housing starts, business and industry growth and residence patterns. The Committee issued a report on April 24, 1996 that offered a number of short term recommendations to address the district’s space needs, but also recommended that the Committee continue investigating long term solutions to the district’s elementary facilities’ use that it was unable to address "due to time constraints." Based on this latter recommendation, respondent requested that the Committee’s subcommittee on facility use continue studying the district’s space utilization needs. Thereafter, the subcommittee reviewed the data gathered by the Committee in 1995-96 and researched other districts with similar populations and needs. Before issuing its report on December 19, 1996, the subcommittee held eleven public meetings at which various options were discussed. The minutes from the subcommittee’s meetings reflect that as early as November 14, 1996, the committee discussed combining the student populations of Momot and Duken at Momot. The final report presented three options for reconfiguring the district’s elementary facilities. The report did not recommend a specific course of action to the board, but instead, listed the advantages and disadvantages associated with each option.

Both option I and II recommended some degree of "grade centering", whereby students assignments to the four elementary schools would be based on grade level, rather than attendance zone, as was the district’s practice at that time. Under both these options, each of the district’s four existing elementary schools would continue to be used for elementary instruction. Option III recommended combining all Duken and Momot students at Momot. The subcommittee’s report states that one advantage of this option is that it "opens Duken for other district needs".

The subcommittee presented its report to respondent at its December 19, 1996 meeting. A public hearing was held on January 15, 1997, at which parents were given the opportunity to provide input. That day, the Plattsburgh Press Republican, the city’s general circulation newspaper, published an article that presented the three options that would be discussed at the public hearing. Parents were also apprised of this hearing in the January 9, 1997 issue of "The Beeline", Duken’s newsletter. At respondent’s February 6, 1997 board meeting, respondent adopted Option III, with the intention of using Duken to house the district’s administrative offices. Petitioners commenced this appeal on April 7, 1997. On April 15, 1997, petitioners’ request for interim relief was denied.

Petitioners acknowledge preliminarily that they did not commence this proceeding within 30 days of the decision complained of, but seek permission to file a late appeal. They claim that prior to the February 6, 1997 meeting, they were unaware that respondent contemplated "closing" Duken because respondent failed to notify the public that it was considering such action. Petitioners explain that subsequent to the February 6, 1997 meeting, they tried to retain counsel, but did not succeed in doing so until March 31, 1997. They also claim that because they are working parents of school children and have no legal training they were unable to prepare a petition within the 30-day time frame.

As to the merits, petitioners claim that respondent failed to comply with the procedures set forth in Education Law "402-a for closing a school building by failing to publish notice of the proposed closing and failing to have the Committee prepare an educational impact statement. Additionally, petitioners allege that the Committee and subcommittee reports did not address a number of the factors required by the statute. Petitioners also claim that respondent failed to consider the impact that possible plans for redevelopment at the Plattsburgh Air Force Base might have on enrollment, and misstated the financial impact of the various options it was considering. For relief, petitioners request that I remand this matter to respondent to re-consider its decision to close Duken, and direct respondent to comply with the procedures outlined in Education Law "402-a.

Respondent contends that petitioners have failed to establish good cause for their failure to timely file an appeal. As to the merits, respondent contends that Education Law "402-a is inapplicable because respondent did not contemplate "closing" Duken, but rather, implemented a reorganization plan that consolidated the student populations of Duken and Momot, with the intention of utilizing the Duken facility for administrative and other services. Respondent also contends that even if I were to conclude that Education Law "402-a were applicable, the procedures outlined therein are not mandatory, and in any event, respondent substantially complied with them. Finally, respondent contends that its determination to implement its reorganization plan is rationally based, promotes sound educational policy and should, therefore, be upheld.

Since filing its answer, respondent has requested permission to file two additional sets of papers. The first is a sur-reply countering certain statements asserted by petitioner Trombley in her reply affidavit. The second is an affidavit from respondent’s Superintendent of Schools apprising me, among other things, that respondent has implemented its reorganization plan by moving Duken’s students to Momot and relocating the district’s administrative offices at Duken. Petitioners have not opposed either request.

Turning first to respondent’s request to submit additional papers, the Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers (8 NYCRR "276.5). A sur-reply may not improperly buttress allegations that should have been asserted in an answer (see, Appeal of Krantz, 38 Ed Dept Rep 485, Decision No. 14,077). Accordingly, although I will accept respondent’s submission, I will not consider the affidavit to the extent that it includes assertions or exhibits that should have been submitted with respondent’s answer. I will also accept respondent’s affidavit apprising me of events that have transpired since the inception of the appeal because of the time lapse since the petition was filed.

As to the issue of timeliness, an appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Schonfeld, 38 Ed Dept Rep 306, Decision No. 14,040; Appeal of Nicotri, 38 Ed Dept Rep 80, Decision No. 13,987). Petitioners commenced this appeal challenging respondent’s February 6, 1997 action on April 7, 1997, well beyond the 30-day time frame. They contend that I should excuse this delay because they did not learn that respondent was contemplating "closing" Duken until the February 6, 1997 meeting when respondent adopted the reorganization plan and were unable to retain a lawyer within 30 days of the meeting.

I find that petitioners have failed to establish good cause for failing to timely commence this appeal. Petitioners’ assertion that respondent did not provide notice that it was contemplated "closing" Duken at its February 6, 1997 meeting is belied by the record. The subcommittee’s report, which included the option of transferring Duken’s students to Momot, was presented to respondent at its December 19, 1996 meeting, which was open to the public. Parents were notified in "The Bee Line" that the subcommittee had issued a report addressing the district’s use of elementary facilities, that a public hearing would be held on January 15, 1997 and that the board would choose a course of action at its February 6, 1997 meeting. In addition, the record reflects that the possible "closure" of Duken was raised in numerous newspaper articles well before the February board meeting. Thus, petitioners either knew or should have known prior to the February 6, 1997 meeting that respondent was contemplating "closing" Duken. Accordingly, petitioners could have taken steps to retain an attorney prior to February 6, 1997. In any event, petitioners’ inability to properly prepare the petition, and difficulty in retaining an attorney are insufficient grounds for excusing the appeal’s untimeliness (Appeal of A.B., 36 Ed Dept Rep 155, Decision No. 13,687; Appeal of T.B., 35 id. 408, Decision No. 13,586).

Even if the appeal were timely, I would dismiss it on the merits. Decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Appeal of Lancaster Parent Alliance, 38 Ed Dept Rep 356, Decision No. 14,053; Appeal of Seligman, 31 id. 131, Decision No. 12,594). A board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al v. Board of Education, 27 NY2d 333; Appeal of Lancaster Parent Alliance, supra; Appeal of Burnett, et al., 33 Ed Dept Rep 607, Decision No. 13,164). In such cases, a board’s discretion is broad (Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert. den. 382 US 905; Appeal of Burnett, et al., supra). Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Burnett, et al., supra).

Turning first to petitioners’ claim that respondent has not complied with Education Law "402-a, I find that Education Law "402-a is inapplicable because respondent did not contemplate "closing" Duken within the meaning of this statute. Education Law "402-a, entitled, "Procedures for closing a school building", "authorize[s] and recommend[s]" that school boards establish an "advisory committee on school building utilization to investigate the educational impact" of a proposed school closing at least six months in advance of such action, and requires the committee to prepare a written educational impact statement. Subdivision 2 lists a variety of factors that the committee should consider in preparing its educational impact statement, and includes "[p]ossible use of such building for other education programs or administrative services" and "…the potential disposability of the closed school" (Education Law "402-a(2)(a) and (b)).

Because the statute advises districts to consider possible use of the school building "for administrative purposes" as an alternative to "closing" it, I conclude that the statute is inapplicable where, as here, the district is contemplating using a school building for administrative purposes in the first instance. Similarly, because the statute directs the committee to consider the "disposability of the closed school", I conclude that "402-a applies only where a district contemplates discontinuing use of a school building for any purpose, rather than using it for administrative, instead of instructional purposes.

Support for this construction is found in the bill sponsor’s memorandum, which states in pertinent part:

One of the major problems for New York State school districts has been the effect of declining enrollment on school facilities. Many districts are facing the prospect of half occupied or empty buildings during the next decade. As a result, school districts often close and sell their buildings without looking at all the factors involved, as well as alternatives to a closing. (emphasis added)

Because there is nothing in the record establishing that respondent contemplated discontinuing the use of the Duken facility, I find that respondent was not obligated to comply with the provisions of Education Law "402-a. I also note that even if the statute were applicable, it does not mandate a school board to establish an advisory committee, but rather, recommends that it do so (Appeal of Seligman, supra). Moreover, even in instances where an advisory committee is established, the final responsibility for adopting a reorganization plan rests with the board (id.).

Nor do I find that respondent’s decision to transfer the student population at Duken to Momot and to use Duken for its administrative offices was arbitrary or capricious, or contrary to sound administrative policy. Respondent’s district experienced a decline in enrollment resulting in the under-utilization of the facilities at both Momot and Duken. Momot had recently undergone a five million dollar renovation, while the Duken facility had limited space and was in need of renovation. At the same time, the district’s high school suffered from a shortage of space, due in part to the fact that the district’s administrative offices were located in that building. Respondent’s reorganization plan helped ease the space shortage at the district’s high school, while also providing the former Duken students with modernized facilities that offered space for remedial instruction, special education and pre-kindergarten programs, facilities that were largely unavailable at Duken. While I am sympathetic to petitioners’ concerns over the loss of their school, I cannot conclude that respondent’s decision to reassign the Duken students to Momot and to use Duken for its administrative offices was arbitrary or capricious, or contrary to sound educational policy.

In light of this disposition, I need not address the parties’ remaining contentions.