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Decision No. 14,417

Appeal of DANIEL KARPEN from action of the Board of Education of the Cold Spring Harbor Central School District regarding sale of land.

Decision No. 14,417

(August 4, 2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jerome H. Ehrlich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from actions of the Board of Education of the Cold Spring Harbor Central School District ("respondent") regarding the sale of district-owned land. The appeal must be dismissed.

During the 1996-97 school year, respondent decided that the district would not need approximately 20 acres of district-owned land in the Village of Lloyd Harbor ("village") in the future. As a consequence of this decision, respondent initiated a series of actions to explore the possibility of selling the land, including the preparation of a property appraisal as well as a report on zoning and regulatory constraints that might affect the feasibility of a potential sale. While the land was previously zoned for residential development, respondent discovered that, pursuant to the Waterfront Revitalization of Coastal Areas and Inland Waterways Act (Article 42 of the Executive Law), the village had also included the property in a special parkland/nature preserve zoning overlay. Respondent, concerned that this zoning would seriously impair the value of the land and respondent’s ability to sell it, retained attorneys and consultants to resolve this issue with the village.

Petitioner contends that respondent improperly failed to keep records of its determination to sell the land in violation of the State Administrative Procedures Act ("SAPA"), and failed to provide him with records of respondent's determination to sell the property in violation of the Freedom of Information Law ("FOIL"). Petitioner alleges that respondent failed to follow the procedures outlined by the State Environmental Quality Review Act ("SEQRA") in making its determination to sell the land. Petitioner also argues that respondent sent letters to the village board regarding the property in question on September 28, 1998 and November 12, 1998 without advance authorization by a board resolution. Petitioner seeks a determination that respondent’s decision to sell the land was arbitrary, capricious and in violation of FOIL, SAPA and SEQRA, that the above described letters were not properly authorized by respondent and that the attorney who appeared before the village board on October 8, 1998 allegedly on respondent's behalf did so without respondent's written authorization.

Respondent argues that the appeal should be dismissed as untimely and that the Commissioner of Education has no jurisdiction over FOIL, SAPA, or SEQRA violations and that it has not violated those statutes. Respondent contends that its actions have been within its authority and that it has a fiduciary duty to protect the value of district-owned property. Respondent further contends that petitioner has failed to state a claim upon which relief can be granted and states that it has not yet formally acted to sell the land.

Initially, I must address the issue of petitioner’s reply. Petitioner offers new allegations and exhibits in his reply that are not responsive to the issues raised in respondent’s answer. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Adriatico, 39 Ed Dept Rep 248, Decision No. 14,228; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133; Appeal of John W., 37 id. 713, Decision No. 13,965). Therefore, while I have reviewed petitioner’s reply, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal is premature with respect to violations of FOIL, SAPA and SEQRA. It is well established that I will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of WNI Sales, 38 Ed Dept Rep 822, Decision No. 14,152; Appeal of Jacobson, 37 id. 75, Decision No. 13,808; Matter of Sullivan, 23 id. 264, Decision No. 11,212). Petitioner accuses respondent of failing to make a written record of its determination to sell the land, failing to provide petitioner with a copy of that record and failing to do an environmental review related to the sale of the land. Respondent submits an affidavit from its superintendent that states that respondent has not yet determined that it will sell the property in question. Preliminary actions were taken to evaluate the property to see if sale was feasible and, almost immediately, respondent encountered the zoning problem. Indeed, most of the events and actions described in the complaint relate to respondent’s efforts to settle the zoning issue with the village. Undoubtedly, any decision to sell the property must wait until this issue is resolved, which is necessary even if respondent does not sell the land since it appears that the zoning overlay would prevent respondent from using the land for school related uses also. Therefore, the appeal is dismissed as premature as to this issue.

The appeal must be dismissed as untimely with regard to the balance of the relief requested by petitioner. An appeal to the Commissioner of Education must be brought within 30 days from the making of the decision or the performance of the act complained of, except for good cause shown in the petition (8 NYCRR "275.16). Petitioner complains of several actions taken by respondent during September, October and November of 1998, but did not commence this appeal until January 12, 1999 and has not offered any reason for the delay. Therefore, his claims are untimely in regard to those actions.