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Decision No. 14,224

Appeal of KATHLEEN ALFANO, ET AL., from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding redistricting.

Appeal of PETER CHIECO, ET AL., from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding redistricting.

Appeal of RICHARD F. MARKERT, on behalf of EMILY MARKERT, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding redistricting.

Decision No. 14,224

(October 13, 1999)

Kay, Scholer, Fierman, Hays & Handler, LLP, attorneys for respondent, Peter Walker and Scott Goldberg, Esqs., of counsel

MILLS, Commissioner.--Petitioners, in three separate appeals, challenge the decision by the Board of Education of the Katonah-Lewisboro Union Free School District ("respondent") to adopt a redistricting plan for the 1998-99 school year. Because the appeals involve similar facts and legal issues they are consolidated for decision. The appeals must be dismissed.


The Katonah-Lewisboro Union Free School District ("district") has a total student enrollment of approximately 3,650, and four elementary schools -- Increase Miller, Katonah, Lewisboro and Meadow Pond. In March 1994, respondent adopted a long-range plan and commissioned an architectural firm, Kaeyer Garment & Davidson Architects, P.C. ("KG&D), to develop a facilities master plan to accommodate an increase in student enrollment that had started in the 1980's. Respondent concurrently explored other alternatives, including redistricting.

In October 1994, KG&D reported to respondent about projected enrollments for grades K-12 in 1995-96, the relationship between total school enrollment and effectiveness, and classroom space need projections. KG&D's effectiveness report noted that while it would be ideal to limit each elementary school's enrollment to 500 students, limiting building enrollment to 600 students would obviate the need to construct a new school building. The report projected that Increase Miller would have 643 students by 1997-98, and up to 670 students by 2000-01, while the other three elementary schools would maintain their student enrollment below 600 through 2000-01. On November 8, 1994, respondent passed a resolution establishing a maximum student enrollment range of 500 to 600 students for each elementary school.

In June 1995, KG&D completed a master plan to expand and renovate the four elementary schools. In the assessment of program and facility needs, KG&D noted that predicting enrollment at elementary levels is difficult so its estimates of elementary school population had been conservative. KG&D projected that for school year 1999-2000, if attendance zones were not adjusted, the enrollments were expected to increase by 13% for Katonah (to 442), 42% for Increase Miller (to 695), 23% for Lewisboro (to 529) and 20% for Meadow Pond (to 416). The Increase Miller zone was growing the fastest, as indicated on the map of current and planned development. The plan also noted that the elementary schools were evolving into widely different sizes, which was not necessarily desirable from an educational objective.

After discussing the particular classroom and ancillary spaces planned for each school, KG&D proposed a redistribution of the projected school population in the four elementary schools to comply with respondent's mandate that improvements to the schools should minimize the impact to the schools and surrounding communities as well as to limit the size of each school to 600 students or less. KG&D's proposed redistribution modified the projected enrollment figures to 550 for Katonah, 584 for Increase Miller, 529 for Lewisboro and 419 for Meadow Pond. Based upon these projections, the master plan proposed specific alterations, additions and future considerations for each elementary school. At a November 1, 1995 special meeting, the district voters approved the $44 million capital improvement project proposed by KG&D in the master plan. Construction commenced in the summer of 1996 and was completed in 1998.

Development of Redistricting Options

Respondent formed a redistricting committee in the fall of 1997, which included Superintendent Karen McCarthy and 2 other administration staff. At respondent's October 21, 1997 meeting, the redistricting committee explained the procedures that it would use for identifying redistricting options, the criteria that would govern redistricting decisions, and the goal that all four elementary schools would provide an equal quality of education. The redistricting committee developed a working relationship with the Parent Council, and agreed to report redistricting options to the Parent Council, which would then meet with the Parent Teachers Association at each school to obtain community input. On November 19, Dr. McCarthy distributed an informational document for students to take home, containing answers to commonly asked questions about redistricting.

Respondent received public comments and questions concerning redistricting at several public meetings in November and December 1997. At respondent’s January 20, 1998 meeting, the redistricting committee distributed a handout that presented student enrollment projections without redistricting, a functional capacity analysis of the four elementary schools, a list of areas studied for potential redistricting, the 8 redistricting options developed to date, the benefits and drawbacks of each option, and student enrollment projections under each option. To prepare the analysis, the committee had projected student enrollment without redistricting for the 1998-99 and 1999-2000 school years, examined potential growth areas in the community, and examined regions near current elementary school attendance zone boundaries to identify natural areas for consideration in redistricting.

Respondent made several requests for additional information, and the redistricting committee received numerous public comments and questions at the January 20, 1998 meeting. As a result the committee continued to explore new options by analyzing different combinations of areas for redistricting. Several new options resulted from this analysis, which were presented in a second handout that was distributed at a January 26, 1998 public meeting. After hearing numerous comments and questions, respondent noted that it needed time to review the information presented at the meeting, and examine the mechanisms and methodology used by the committee in its report.

Dr. McCarthy sent a letter to parents on February 9, 1998, advising that respondent had scheduled a public meeting on February 19, 1998, and that the latest revision of the options handout would be available for public distribution on February 13, 1998. Anyone who wanted to share any further information with respondent was asked to deliver it to the district office by February 17, 1998 so respondent could review and consider it.

The handout for the February 19, 1998 meeting contained 15 redistricting options. The redistricting committee recommended Options 4-C and 8 as the most viable options, with a slight preference for Option 8. Under Option 8, the areas designated as Katonah Ridge West and Cedar Road were redistricted from Increase Miller to Katonah, and the area designated as Michelle Estates was redistricted from Increase Miller to Lewisboro. Fifth graders were grandfathered into their present school assignments.

Discussing the advantages and disadvantages of Option 8, the committee noted that the number of students remaining at Increase Miller was larger than desired but substantially reduced; that Katonah and Lewisboro could absorb the redistricted students; that schools were close to their utilization rates; that there was space at Lewisboro for future growth, that one additional area could be moved to Meadow Pond if future growth at Lewisboro exceeded expectations; that some students might opt not to be grandfathered; that the plan divided some neighborhoods; and that class sizes were manageable and consistent across the district. Dr. McCarthy further noted that Option 8 redistricted only 54 children; that transportation would be safe, cost effective and not require a dramatic increase in ride time; and did not involve the assignment of flexible space at Increase Miller or Katonah, so the space would be open for multi-use purposes. As to Option 4-c, she noted that, while it resulted in a slightly smaller student population at Increase Miller, there would be insufficient room for growth at Katonah and transportation safety was more difficult if students from the southern area of Katonah Ridge were also redistricted to Katonah.

After reviewing all the options, respondent adopted Option 8 on February 19, 1998. Respondent noted that Option 8 placed more children at Increase Miller than desired but class sizes were reasonable, the student population broke out well into 23 sections, and there was more room for growth at Katonah. In making its determination, respondent recognized that it was "a little peculiar" to redistrict Katonah Ridge West and Cedar Road while skipping over Almar Lane in the southern part of Katonah Ridge. Respondent also specified its particular reasons for rejecting the other options. Respondent amended its February 19, 1998 resolution on March 10, 1998, to specify the exact geographic areas that would be redistricted from Increase Miller to Katonah and Lewisboro.


In Appeal of Alfano, et al., 16 petitioners, who reside in the area designated as "Michelle Estates," challenge the redistricting decision insofar as it moved petitioners' 13 children from Increase Miller to Lewisboro. In Appeal of Chieco, et al, 7 petitioners challenge the redistricting of the area designated as "Cedar Road," and the reassignment of their 11 children from Increase Miller to Katonah. In Appeal of Markert, petitioner Markert challenges the redistricting of the area designated as "Katonah Ridge West" from Increase Miller to Katonah.

I will first address two procedural objections raised by the parties. I reject respondent's contention that the appeals are time-barred in whole or in part. The petitioners specifically challenge the redistricting resolution approved on February 19, 1998 and modified on March 10, 1998. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 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). The three appeals were commenced by service on March 20, 1998, 29 days after the February 19, 1998 decision, and are thus timely.

While respondent correctly states that petitioners are untimely to challenge certain decisions made during the development of the facilities master plan in 1994-95, I do not construe any references in the petitions to such decisions to be an attempt by petitioners to challenge those former decisions, but rather to set the context for the redistricting decision. However, to the extent that petitioners indeed intend to challenge these historical decisions from 1994-95, such challenges are untimely and will not be considered.

Petitioner Markert has also moved to exclude an affidavit provided by respondent’s attorney, Peter Walker. The Commissioner’s regulations governing Education Law "310 appeals do not contemplate motion practice, and I will give each document in the record due consideration based upon its contents. I agree with petitioner that an attorney’s affidavit without personal knowledge is insufficient to establish the underlying facts (Sturtevant v. Home Town Bakery, Inc., 192 AD2d 904 [3d Dept 1993]), but Mr. Walker’s affidavit contains legal arguments in response to the petition, rather than assertions of fact, and thus may be considered for that purpose (Leather Facts, Inc. v. T. Foy, 157 Misc 2d 35 [Civ Ct City of NY 1993]).

The appeals, however, must be dismissed on the merits. Pursuant to Education Law ""1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of a school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Education, 27 NY2d 333 [1971]; Appeal of Aloisio, 38 Ed Dept Rep 169, Decision No. 14,009; Appeal of Damadeo, et al., 36 id. 201, Decision No. 13,701). A board of education has broad discretion in its assignment of pupils to schools (Matter of Addabbo v. Donovan, 22 AD2d 383 [2d Dept], aff’d, 16 NY2d 619, cert den 382 US 905 [1965]; Appeal of Parrish, et al., 32 Ed Dept Rep 261, Decision No. 12,825). Accordingly, a board’s decision to reorganize its schools will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, supra; Appeal of Damadeo, et al., supra). Moreover, petitioner bears the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (Appeal of Damadeo, et al., supra; Appeal of Sherwood, et al., 33 Ed Dept Rep 410, Decision No. 13,096). I find that petitioners have failed to meet that burden of proof.

Throughout the redistricting process, a fundamental consideration by respondent was to limit Increase Miller’s population to approximately 608, per the functional analysis set forth in the redistricting committee's January 20, 1998 report. This maximum figure was consistent with respondent’s November 1994 resolution to develop a facilities master plan for a maximum student enrollment range of 500 to 600 students per elementary school. Respondent clearly has the authority to determine that the population at one of its elementary schools should be reduced. Although petitioners vigorously contest respondent’s calculation of the functional capacity of Increase Miller and predictions of future enrollments, petitioners’ calculations still show that the total enrollment at Increase Miller without redistricting would be significantly higher than the limit desired by respondent. Upon my review of the record before me, I cannot find that respondent was irrational in deciding to reduce the student enrollment at Increase Miller.

The next inquiry is whether respondent's plan is rational, not whether the problem could have been better addressed by alternative approaches (Appeal of Aloisio, et al., supra; Appeal of Capozzoli, 31 Ed Dept Rep 162, Decision No. 12,606). The record shows that respondent considered a number of options and chose the one that it believed would be least disruptive, affect the smallest number of students, and permit the most beneficial utilization of its four elementary schools. Respondent considered such factors as the projected total student enrollment, the preservation of existing neighborhoods, transportation costs, complexities and safety, class sizes, the ability to grandfather fifth graders, and the total number of students affected.

Petitioners contest virtually every figure used or calculated by respondent in the various options (e.g., migration ratios, future enrollment projections, functional capacity of the elementary schools), but the record as a whole does not prove that the option chosen by respondent was irrational. I note that the Katonah Ridge West area is contiguous to the Katonah district as it was constituted in February 1998, and the Cedar Road area is contiguous to Katonah Ridge West. Although respondent had recognized that it was "peculiar" not to redistrict the remaining southern portion of the Katonah Ridge area, there were transportation safety issues that persuaded against including the southern part of Katonah Ridge in the redistricting. I also note that Michelle Estates is contiguous to the Cross River/Pound Ridge area, which was already part of the Lewisboro district prior to redistricting. Although the Alfano petitioners contend that respondent grossly underestimated the number of future enrollments from Michelle Estates, this argument supports the need to deflect this greater number of future students from the already overburdened Increase Miller School.

Petitioner Markert’s primary contention is that the number of children from the Cedar Road area is so small that it was irrational to redistrict them from Increase Miller to Katonah. Petitioner estimates that 9 children from the area will attend Increase Miller versus respondent’s estimate of 11 children. Irrespective of the number, the parties agree that, as distributed through the grades, the Cedar Road children accounted for less than one child per section. However, the redistricting of 11 or even 9 students accomplished one of respondent’s primary goals, to decrease the overall enrollment of Increase Miller to an acceptable level.

Some petitioners argue that the size of classrooms, and non-general classrooms for music, art and other such activities, are smaller at the receiving schools than at Increase Miller. One of the goals of the 1994-95 facilities master plan, and the facility modifications designed by KG&D, was to make the four elementary schools as equal as possible in material aspects and to provide an equal quality of education to its students. A board of education cannot reasonably be required to match every facility square foot for square foot in making redistricting decisions. Accordingly, based upon the record before me, I do not find that it was irrational for respondent to choose to redistrict the areas of Cedar Road and Katonah Ridge West, which are contiguous to each other and, as combined, are contiguous to the Katonah district, and to redistrict the Michelle Estates area to Lewisboro, rather than to redistrict other areas of the Increase Miller district to accomplish the goal of decreasing total enrollment at Increase Miller.

Various petitioners additionally complain that respondent failed to give adequate public notice of redistricting meetings, failed to have timely or sufficient numbers of copies of the redistricting proposals at all pick-up sites, and failed to obtain and consider public input adequately. However, the record indicates that respondent made a concerted effort to obtain public input by establishing a relationship with the Parent Council early in the process, by holding a series of public meetings at which copies of the various proposals were available, if not earlier, and by receiving public comments and questions at the meetings. In any event, there is no requirement in law that a board conduct a hearing upon any particular subject or grant to any person the right to be heard (Appeal of Aloisio, supra; Appeal of Capozzoli, supra). Therefore, any complaints about public notice or comment are not grounds to invalidate the redistricting decision.


In sum, while I am sympathetic to petitioners’ concerns about the effect of redistricting on their children, and while petitioners clearly disagree with respondent’s determination, the record indicates that respondent considered the options, discussed those options at several public board meetings, accepted public comment regarding the proposed redistricting options, revised the redistricting options several times in response to board and public comments and questions, and ultimately voted for Option 8. Accordingly, I conclude that respondent's decision in this matter is not arbitrary, capricious or contrary to sound educational policy and, therefore, will not disturb it. In view of this disposition, I need not address the other procedural objections raised by respondent.