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Decision No. 14,439

Appeal of RICHARD HOLLISTER from action of the Board of Education of the Potsdam Central School District and the Canton-Potsdam Hospital regarding compliance with a judicial decision of the Commissioner of Education.

Decision No. 14,439

(August 18, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for Potsdam Central School District, Marc H. Reitz, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the alleged noncompliance of respondent board of education with the decision in Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188. The appeal must be dismissed.

In the Hollister decision, dated August 12, 1999, I sustained this petitioner's appeal after finding that respondent board had failed to comply with Education Law "403-a, and declared null and void a January 27, 1998 resolution of the board of education approving the renewal of an initial ten-year lease of parking space in a district-owned parking lot to the Canton-Potsdam Hospital and the lease extension entered into with the hospital as a result of the resolution.

Thereafter, petitioner commenced this appeal through personal service of a copy of the petition on respondent board on December 15, 1999 and on respondent hospital on December 16, 1999. Petitioner alleges respondent board has failed to comply with the Hollister decision and has allowed respondent hospital the continued use of the parking area. Petitioner requests that I order the board of education to immediately comply with the decision.

Respondent board of education denies petitioner's allegations and alleges that at two consecutive board meetings in September and October 1999, it invited public comment on the parking issue and began a study of all district parking facilities. Respondent board further alleges that at its meeting held on October 12, 1999, it passed a resolution approving negotiations with respondent hospital regarding a new lease and determined that the parking lot involved is not currently needed for school district purposes, that the lease of the property is in the best interest of the district and that the property should be leased at its fair market value. In addition, respondent board alleges that its superintendent of schools attempted to obtain fair market appraisals of the parking lot from several area firms but that only one firm offered to conduct an appraisal. Respondent board also alleges that the district investigated parking fees charged by other property owners in an attempt to establish a fair market value. Finally respondent board alleges that the board's buildings and grounds committee met with representatives of respondent hospital on October 27, 1999 and November 1, 1999 to initiate negotiations on a new lease, and that respondent board established January 25, 2000 as the anticipated date for completion of negotiations.

In his reply, petitioner disputes many of respondent board's allegations. The reply also improperly attempts to raise new allegations and issues, and to belatedly add assertions that should have been in the petition. While I have reviewed petitioner’s reply and attached exhibits, I will not consider those portions that contain new information or materials which are not responsive to new materials or affirmative defenses set forth in the answer, or that buttress allegations in the petition or belatedly add assertions that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Crowley, et al., 39 Ed Dept Rep __, Decision No. 14,345, dated April 25, 2000; Appeal of Hollister, supra).

In any event, the appeal must be dismissed as moot. In the Hollister decision, I noted that if the property in issue is not currently needed for school district purposes, respondent board can enter into negotiations for the lease of the property for its fair market value if the board in good faith determines that such action would be in the best interests of the district, pursuant to Education Law "403-a. It appears from the record that on January 31, 2000, respondent board and respondent hospital entered into a lease agreement for the parking lot. Although the record indicates that on February 7, 2000 petitioner was served by mail with a copy of the lease agreement, petitioner has not raised any objections in this appeal to its validity. Therefore, the lease must be presumed to be valid, and its execution has resolved the issue of respondents' alleged noncompliance with the Hollister decision. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Clay, et al., 37 Ed Dept Rep 697, Decision No. 13,961). Accordingly, the appeal must be dismissed as moot.