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Decision No. 14,776

Appeal of TIMOTHY DAVIES, on behalf of his son AARON, from action of the Board of Education of the Miller Place Union Free School District regarding transportation.

Decision No. 14,776

August 21, 2002)

Guercio & Guercio, Esqs., attorneys for respondent, Richard J. Guercio, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision by the Board of Education of the Miller Place Union Free School District to change the location of his son's bus stop and challenges the district's transportation policy. The appeal must be dismissed.

Petitioner resides on a cul-de-sac within respondent's district. On July 10, 2001, respondent revised its transportation policy to provide that bus stops on dead end streets and cul-de-sacs would be relocated if a bus could not turn around without backing up. When the 2001-2002 school year began, the bus stop for petitioner's son, Aaron, was relocated to the intersection of his cul-de-sac with North Country Road.

In response to petitioner's complaints, the bus company's safety officer surveyed the bus stop during the morning of September 21, 2001. She found that both the driver and the children waiting for the bus had clear visibility, and that vehicles traveling on North Country Road could see the school bus's flashing lights. By letter dated October 5, 2001, the district's assistant superintendent for business determined that Aaron's bus stop would remain at the North Country Road intersection.

When petitioner requested reconsideration, respondent employed an independent transportation consultant to inspect the bus stop location. The consultant confirmed that a school bus could not turn around on petitioner's cul-de-sac without having to back up. After considering the danger of backing a school bus, the limited traffic flow on petitioner's cul-de-sac, and the visibility of the school bus, the consultant recommended that the bus stop remain at the North Country Road intersection. By letter dated October 29, 2001, the assistant superintendent for business provided petitioner with a copy of the consultant's report determining that the current location of the bus stop was safe.

Respondent further revised its policy on February 13, 2002 to limit the prohibition against a school bus backing up to include only dead end streets and cul-de-sacs where the dead end portion of the street was less than three quarters of a mile in length. This revision was made to permit a bus stop on a dead end street in the district where the students would otherwise be required to walk approximately one mile, and was not applicable to petitioner's location.

Petitioner commenced this appeal on March 13, 2002. The petition purported to seek interim relief, but the notice of petition did not provide the requisite notice to respondent (8 NYCRR "276.1), and no stay order was issued.

Petitioner asserts that respondent's policy as drafted and implemented is arbitrary, capricious, unreasonable and discriminatory. Respondent asserts that its transportation policy is rational, and that Aaron's bus stop is safe. Respondent also contends that the appeal is untimely.

Petitioner objects to respondent's answer on the grounds that it was not timely submitted. On March 27, 2002, however, my Office of Counsel granted respondent's request for an extension of time to file its answer, and the answer was served within the extension period.

Respondent objects to new allegations and issues raised in petitioner's reply. The purpose of a reply is to respond to new material or affirmative defenses set forth 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 in the petition (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. 459, Decision No. 14,527; Appeal of Taylor, 39 id. 712, Decision No. 14,357). Accordingly, while I have examined petitioner"s reply, I have not considered those portions that constitute new allegations which are not responsive to new material or affirmative defenses set forth in the answer.

Respondent requests that I accept a sur reply for the purpose of addressing the new allegations that petitioner raised in his answer. Since I have not considered those portions of the reply that constitute new allegations, respondent's request that I accept the sur reply is denied.

Respondent contends that petitioner's appeal concerning the July 2001 policy revision and September 2001 bus stop change must be dismissed as untimely. An appeal to the Commissioner of Education under Education Law "310 must be commenced within 30 days of the act or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). In September 2001, the bus stop for petitioner's son was changed as a result of respondent's July 2001 policy revision. In October 2001, respondent's assistant superintendent advised petitioner that the bus stop location had been reviewed and would not be changed. Since petitioner did not commence this appeal until April 2002, more than five months after respondent's final determination, his allegations concerning the July 2001 policy revision and the change in Aaron's bus stop are dismissed as untimely.

The only remaining issue is respondent's February 2002 transportation policy revision. There is nothing in the record, however, to establish that petitioner was aggrieved by this revision. Respondent's decision to permit a bus to turn around on a dead end street where students would otherwise be required to walk approximately a mile to the bus stop did not injure petitioner or his son.

Moreover, 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 Gulla, 39 Ed Dept Rep 716, Decision No. 14,358; Appeal of Warner, 37 id. 469, Decision No. 13,907; Appeal of Heuser, 36 id. 368, Decision No. 13,751). 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 Gulla, supra; Appeal of Heuser, supra). The record indicates that respondent revised its transportation policy to increase safety and efficiency. When petitioner raised concerns regarding the safety of the bus stop, respondent obtained an independent consultant who determined that the bus stop was safe. Although petitioner may disagree, respondent acted within its discretion in locating the pick-up point at the North Country Road intersection. The record demonstrates that respondent weighed petitioner's concerns and based its decision on considerations of safety. Based on the record before me, I cannot conclude that respondent's determination was arbitrary, capricious or unreasonable.