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Decision No. 14,579

Appeal of THOMAS SHEPPARD, on behalf of KAYLEIGH, MARIELLE, JESSE and GILLIANNE SHEPPARD, from action of the Board of Education of the Cornwall Central School District regarding proposed construction of a high school.

Decision No. 14,579

(May 31, 2001)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, Jeffrey D. Honeywell and Kathy Ann Wolverton, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges various actions of the Board of Education of the Cornwall Central School District ("respondent") regarding the proposed construction of a high school. The appeal must be dismissed.

In May 2000, respondent distributed an information packet on a construction proposal to district residents. The packet stated that respondent sought to build a new high school with a capacity of 1,200 students. It also described a number of features of the proposed high school, including 40 general classrooms and a 1500-seat auditorium. On May 3, 2000, the State Education Department"s Office of Facilities Planning issued its determination, pursuant to the State Environmental Quality Review Act ("SEQRA"), that the proposed project would not result in any significant adverse environmental impacts.

On June 6, 2000, district voters approved a proposition authorizing respondent:

a) To purchase real property for school site purposes, at a maximum estimated cost of $750,000;

b) To purchase real property for access purposes, at a maximum estimated cost of $320,000;

c) To construct thereon a new High School, including site improvement, water and sewer lines, original furnishings, equipment, machinery, apparatus, and other improvements and costs incidental thereto, at a maximum estimated cost of $39,187,500;

d) To reconstruct for changed use purposes, school buildings, including site improvement, original furnishings, equipment, machinery, apparatus, and other improvements and costs incidental thereto, at a maximum estimated cost of $1,500,000, and that the sum of $41,757,500, being the aggregate of the aforesaid costs, or so much thereof as may be necessary, shall be raised by the levy of a tax".

A second proposition authorizing an additional $2,883,000 for the construction of a swimming pool addition to the high school was also approved. That proposition is not challenged here.

On or about October 17, 2000, the school district issued $3 million in bond anticipation notes to cover initial building costs. At respondent"s December 4, 2000 meeting, the project architect and construction manager discussed rising construction costs and their possible effect on the project. Respondent then considered various options for the high school plans. The minutes show that no formal vote was taken on the high school plans. Respondent asserts that it advised the architects to plan for a 1,000-seat auditorium and asked them to prepare other design options for further discussion.

At its December 11, 2000 meeting, respondent reviewed various design options presented by the architects to keep the project within budget in light of recent increases in construction costs. While the meeting minutes are not clear, it appears that a number of items were designated as "add alternates," meaning that the items would be constructed if sufficient funds remained after all other necessary items were completed. Respondent directed the design team to look for alternatives in bid design and packaging that would lead to cost savings and enable it to retain all the design elements originally planned. On December 22, 2000, respondent submitted preliminary plans to the State Education Department"s Office of Facilities Planning.

Petitioner alleges that 10 classrooms, tennis courts, a track and dividers to create lecture areas in the auditorium were designated as "add alternates" at respondent"s December 11, 2000 meeting. He asserts that the preliminary design plans submitted to SED omitted all the add alternates. He contends that respondent misled district residents when it stated that these reductions were caused by increased construction costs. He argues that the changes will result in greater costs because the district will have to bus students to other sites for tennis and track activities.

Petitioner also claims that respondent failed to address the safety of students, teachers and staff at the proposed high school because it did not sufficiently examine traffic on the site"s sole access route or noise from the nearby Stewart Airport and State Thruway. He contends that the site of the high school building was moved much closer to the Thruway after the referendum was approved.

Petitioner asks me to order respondent (1) to desist from issuing any school construction bonds until this appeal is resolved: (2) to construct a high school with all the features and capabilities "promised" under the terms of the referendum; (3) to nullify the referendum if its terms cannot be satisfied; (4) to commission the New York State Department of Transportation to conduct a traffic study on the access road to the proposed high school; (5) to conduct a study of the impact of the proximity of Stewart Airport on the proposed site; and (6) to conduct an "outside acoustical review" of the site due to the proximity of the Thruway.

Respondent contends that the petition is untimely, fails to state a cause of action and presents claims that are not yet ripe because bid specifications have not been prepared and construction has not begun. Respondent notes that it voted at its December 11, 2000 meeting to maintain the elements of the original high school design and classified certain elements as "add alternates" to meet its responsibility to keep the project within budget. Respondent admits that the plans call for a 1,000-seat auditorium and denies that classroom capacity was reduced or that the tennis courts and track were omitted. Respondent asserts that, while the voters must approve the site and cost of a school building, the school district has discretion to determine the building"s actual design. Respondent also argues that I am not authorized to address petitioner"s claims about the traffic study, airport impact study and outside acoustical review because they relate to the State Education Department"s review of the project under SEQRA.

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). The petition was served upon respondent on January 17, 2001. Petitioner"s claims regarding actions taken at or prior to respondent"s December 4 and December 11, 2000 meetings, therefore are untimely. Petitioner purports to challenge respondent"s submission of building plans to the State Education Department on December 22, 2000, and argues that the appeal is, therefore, timely. I find that respondent"s submission of the plans -- which apparently were prepared in accordance with decisions made at respondent"s December 11, 2000 meeting -- does not serve to extend petitioner"s time to commence this appeal.

Furthermore, I cannot entertain petitioner"s claims that respondent failed to conduct adequate traffic and noise studies. State Education Department staff reviewed respondent"s proposed construction project, including traffic issues, under SEQRA. It is well settled that Education Law "310 does not authorize an appeal to the Commissioner from actions taken by staff of the State Education Department (Appeal of Karpen, 40 Ed Dept Rep ___, Decision No. 14,460; Matter of the Board of Education of the City School District of the City of Rome, 23 id. 382, Decision No. 11,253, aff'd sub nom.Board of Ed., Rome CSD v. Ambach, 118 AD2d 932 (3d Dept 1986); Appeal of Molloy College, 33 Ed Dept Rep 361, Decision No. 13,078). Moreover, pursuant to Education Law "408, Department staff will continue to review the project and determine whether to approve construction.

Finally, I note that the resolution approved by district voters authorized construction of a new high school at a maximum estimated cost of $39,187,500. The resolution did not specify any particular features the construction would include; respondent therefore is not bound to construct any specific items but may exercise its discretion to achieve the result approved by the voters (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109). Indeed, respondent may not approve construction that would exceed the maximum cost authorized. In any event, respondent instructed its architects to search for cost savings that would permit construction of a new high school that contains all of the originally proposed design elements. Accordingly, there is no reason for me to substitute my judgment for that of respondent.

In light of this disposition, I need not address the parties" remaining contentions nor consider the additional materials submitted by petitioner after his reply was filed.