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Decision No. 14,358

Appeal of THOMAS GULLA, on behalf of LINDSAY and ANTHONY GULLA, from action of the Board of Education of the Ramapo Central School District regarding transportation.

Decision No. 14,358

(May 8, 2000)

Hurwitz & Hurwitz, P.C., attorneys for petitioner, Peter A. Hurwitz, Esq., of counsel

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Ramapo Central School District ("respondent") of his request to change the transportation pick-up point for his children, and seeks an order directing the relocation of that pick-up point. The appeal must be dismissed.

Petitioner and his two school-age children reside at 15 Sumter Road, Airmont in respondent’s district. Until 1996 the pick-up point for petitioner’s children was on Sumter Road, which is a cul-de-sac. While the exact date is not clear from the record, it appears that at some point in 1996 the pick-up point for petitioner’s children was relocated to Smith Hill Road at the intersection of Sumter Road. On January 13, 1997 petitioner and his wife wrote to respondent’s superintendent requesting that the bus stop be changed back to Sumter Road. By letter dated February 20, 1997, the superintendent informed petitioner that he had reviewed the matter and would not change the pick-up point.

On September 11, 1998, counsel for petitioner wrote to the superintendent and again requested that the bus stop be moved back to Sumter Road. By letter dated September 28, 1998, respondent’s attorney denied this request on behalf of the district. Petitioner commenced this appeal on April 15, 1999. Petitioner’s request for interim relief was denied on April 29, 1999.

Petitioner contends that the bus stop on Smith Hill Road is dangerous. In support of this contention petitioner submits a July 1997 report from a traffic engineering consultant as well as a June 1997 traffic analysis from a Town of Ramapo police sergeant. The traffic engineer concluded that there is a greater possibility for a school bus, or a child waiting for a bus to be involved in an accident while waiting on Smith Hill Road, than on Sumter Road. The police sergeant came to a similar conclusion after he conducted a traffic survey and speed assessment of Smith Hill Road and Sumter Road. Based on these opinions, petitioner alleges the bus stop on Smith Hill Road is unsafe.

Petitioner also maintains that school buses never had trouble negotiating the cul-de-sac, and that the same bus company that transports his children to school uses Sumter Road for camp and private school transportation.

Respondent disputes petitioner’s claims and maintains that it acted reasonably and within its discretion in designating the bus stop on Smith Hill Road. Respondent’s own pupil transportation consultant inspected the pick-up point in October 1996 and in June 1997 and determined that it is consistent with all generally accepted safety principles. Respondent’s consultant maintains that driving the bus into the cul-de-sac presents a greater danger to the children than having them wait for the bus on Smith Hill Road. He states that cul-de-sacs are dangerous places for school buses due to their narrowness and the likelihood of toys, cars or accumulations of snow interfering with the movement of a bus. Additionally, respondent maintains, that the Smith Hill Road site is characteristic of pick-up points on school bus routes in many suburban areas. Finally, respondent maintains that the appeal should be dismissed as untimely.

Initially, I will address the issue of timeliness. An appeal to the Commissioner must be instituted within 30 days of the decision that is the subject of the appeal, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that petitioner commenced this appeal on April 15, 1999, more than 2 years after it first notified petitioner that the pick-up point would not be relocated. Petitioner did not pursue this matter until the following year when he retained counsel, who renewed the request to change the bus stop. Even if I considered this to be a new request, petitioner’s appeal would still be untimely. By letter dated September 28, 1998, respondent’s attorney advised petitioner’s attorney that the district would not relocate the bus stop. Petitioner eventually contacted the State Education Department to inquire about the possibility of an appeal, however, this inquiry was not made until December 9, 1998. Thus, by any measure, more than 30 days elapsed since a final determination was made by respondent, and this appeal must be dismissed as untimely.

Even if the appeal were timely, it would be dismissed on the merits. A board of education may exercise its discretion when designating pick-up points provided that the board uses care in exercising such discretion (Appeal of Warner, 37 Ed Dept Rep 469, Decision No. 13,907; Appeal of Heuser, 36 id. 368, Decision No. 13,751; Appeal of Krauciunas, 35 id. 107, Decision No. 13,480). In establishing a pick-up point, a board of education must consider and balance considerations of pupil safety and convenience, routing efficiency and costs (Appeal of Heuser, supra; Appeal of Krauciunas, supra).

After carefully considering both parties’ consultants’ reports, I conclude that respondent acted within its discretion in refusing to relocate the pick-up point to Sumter Road. The record demonstrates that respondent weighed petitioner's concerns and based its decision on considerations of safety. While I am sympathetic to petitioner’s concerns about his children’s safety, based on the record before me, I cannot conclude that respondent's determination regarding the pick-up point was arbitrary, capricious or unreasonable.