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Decision No. 15,106

Appeal of ANTHONY ANTONIADIS, on behalf of his daughter JODIE, from action of the Board of Education of the Amherst Central School District regarding transportation.



(August 31, 2004)


Linda L. Kaumeyer, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Amherst Central School District (�respondent�) of his request for his daughter�s transportation to a nonpublic school.  The appeal must be dismissed.

Petitioner and his daughter, Jodie, reside within respondent�s district.  During the 2003-2004 school year, Jodie attended seventh grade at Christ the King School (�Christ the King�), a nonpublic school located within the district.  Petitioner resides one-half mile from the  school.

Respondent�s transportation policy provides that students in grades six through eight who reside �one mile or more from school will be transported to and from school.�  In addition, in 1998, pursuant to Education Law �3635-b, respondent established a �child safety zone� near petitioner�s home because it determined that certain intersections were hazardous.  Respondent provides transportation to Christ the King students who reside within the boundaries of the child safety zone,  notwithstanding the distance of their homes from the nonpublic school.  Petitioner resides outside the designated child safety zone.

In establishing the child safety zone, respondent determined, pursuant to New York State Department of Transportation regulations, that a hazardous condition existed at an intersection located within the district (Kensington Avenue and Bentham/Avalon/Ridgewood Drives). Respondent determined the students whose most direct walking route to or from school required them to cross that intersection and prescribed the child safety zone to include the residences of those students.  Based on this determination, respondent established a child safety zone bounded by the southeast side of Kensington Avenue, Avalon and Ridgewood Drives, Bennington Drive and Lamarck Drive.   Students residing within that zone received transportation because their most direct walking route to the school they attended (Christ the King) required them to cross at the identified hazardous intersection. Respondent did not include within its established child safety zone the street on which Jodie resides because she was not required to cross the identified hazardous intersection at Kensington/Bentham/Avalon/Ridgewood when walking to school.

Although not requested to do so at the time, respondent also analyzed other intersections within the district, including the intersection of Kensington Avenue and Walton Drive, and determined that no hazardous condition existed there.

In March 2003, petitioner requested afternoon transportation for Jodie from Christ the King to home.  The request was denied because petitioner�s residence is less than one mile from school.  By letter dated August 28, 2003 to the district�s school safety coordinator, petitioner again requested transportation for Jodie stating that her �most direct route home... is within the established child safety zone.� 

By letter dated September 8, 2003, the school safety coordinator denied petitioner�s written transportation request and his verbal request to extend the child safety zone to include petitioner�s residence.  She stated that Jodie was ineligible for transportation because petitioner�s residence was not located within the designated child safety zone.  With respect to petitioner�s request to extend the child safety zone to include his residence, the school safety coordinator proposed alternative walking routes that would avoid any hazardous intersections.  She further notified petitioner of the procedures for formally petitioning respondent to establish a new or revised child safety zone.

 At respondent�s September 16, 2003 board meeting, petitioner appealed the safety coordinator�s decision denying Jodie transportation and reiterated his request that respondent extend the child safety zone to include his residence.  By letter dated September 22, 2003, respondent denied petitioner�s requests.  On that same day, petitioner apparently wrote to the president of the board setting forth additional issues, although neither party has submitted a copy of that letter.  By letter dated September 23, 2003, respondent�s attorney notified petitioner that the president of the board wished to present petitioner�s letter to respondent at its October 7, 2003 meeting.  The September 23 letter stated, �in order to afford you the opportunity to have the Board address the issues in your recent letter, the District will suspend the commencement of your time to appeal until Friday, October 10, 2003 to accommodate your request.� 

On October 7, 2003, petitioner appeared before respondent during executive session, but respondent did not alter its decision to deny petitioner�s requests.  This appeal ensued.  On November 19, 2003, petitioner�s request for interim relief was denied.

Petitioner contends that, although Jodie does not reside within the child safety zone, she is nevertheless entitled to transportation because her most direct walking route home from school requires her to walk through the designated child safety zone.  In the alternative, petitioner asserts that respondent should extend the current child safety zone to include his residence.  Finally, petitioner contends that the alternative walking route respondent proposed for Jodie measures 1.2 miles, thus entitling her to transportation under respondent�s transportation policy.

Respondent asserts that Jodie is not entitled to transportation because her residence is outside the designated child safety zone, that petitioner�s request to extend the current zone or create a new zone is untimely and unwarranted, and that the alternative walking route proposed for Jodie does not exceed one mile.

I must first address a procedural matter.  Petitioner has submitted written argument in reply to respondent�s memorandum of law.  Respondent has not objected to this submission.  Pursuant to ��276.4 and 276.5 of the Commissioner�s regulations, I will accept petitioner�s reply memorandum for consideration.

Petitioner first argues that Jodie is entitled to transportation because her most direct route from home to school requires her to walk through a child safety zone.  Education Law �3635-b(2) provides in pertinent part:

A board of education... is authorized to adopt a resolution providing for pupil transportation in child safety zones, subject to voter approval, where applicable, of a proposition to expend money for such transportation....  Such transportation may be provided without regard to like circumstances based solely upon the fact that the pupil resides within [the mileage limitation] from the school such pupil legally attends....  Such transportation may be provided upon the determination by the board that a hazardous zone exists which in the opinion of the board would be reasonably alleviated by the establishment of a child safety zone.  For purposes of this section, child safety zone means a designated area of a school district, including at least one personal residence, within which children who reside at a lesser distance from the school they legally attend than the minimum transportation limit of the district will be provided transportation on the basis that their most direct walking route to school will traverse a hazardous zone  (emphasis added).

The statutory language is clear in defining �child safety zone� as a designated area of a school district within which children who reside at a lesser distance than the minimum transportation limits will be provided transportation (emphasis supplied). Therefore, a student must reside within the geographic boundary of the designated child safety zone to be entitled to transportation under Education Law �3635-b (See also, Appeal of Trader, 43 Ed Dept Rep ___, Decision No. 14,967).  Because petitioner resides outside the child safety zone, Jodie is not entitled to transportation pursuant to �3635-b.

Petitioner also challenges respondent�s refusal to grant his alternative request that the child safety zone be extended to include his residence or that a new child safety zone be created that includes his residence.  Petitioner based his request on the assertion that Jodie must cross either the intersection one block west of her residence at Kensington Avenue/Walton Drive as respondent suggests, or at Kensington Avenue/Lamarck, Drive located on one boundary of the current child safety zone.

Respondent correctly maintains that petitioner�s September 2003 request to extend the current child safety zone or create a new zone was untimely.  Education Law �3635-b(4) requires that requests seeking designation of a child safety zone be made by petition signed by 25 qualified voters of the district or five percent of the number of voters who voted in the previous annual election of board members, whichever is greater.  It further provides that such petitions �shall not be submitted later than the first day of March preceding the school year for which transportation is being requested.�  Petitioner failed to submit a petition with the requisite number of signatures, and his request for designation of an expanded or new child safety zone for the 2003-2004 school year was not submitted by March 1, 2003 as required (Appeal of Chapman, 40 Ed Dept Rep 558, Decision No. 14,556).  Respondent assertion that petitioner�s request was untimely is, therefore, correct.

Despite petitioner�s late request, respondent reviewed petitioner�s claim that the intersections at Kensington Avenue/Lamarck Drive and Kensington Avenue/Walton Drive are hazardous.  Based on the 1998 analysis by an independent transportation consultant, respondent concluded that no other intersections within the district constituted hazards.  Respondent specifically analyzed the intersection at Kensington Avenue/Walton Drive, which is part of its proposed alternate walking route for Jodie.  Respondent concluded that the intersection did not meet the New York State Department of Transportation criteria to be considered hazardous. 

In this appeal, petitioner sets forth a number of conclusory allegations regarding the safety of that intersection.  In an appeal to the Commissioner of Education, the petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR �275.10) and the burden of establishing the facts upon which he seeks relief (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 15,073; Appeal and Application of Davis, 43 id. ___, Decision No. 15,007).  Except for a letter from the Amherst Police Department providing general information regarding accident statistics along Kensington Avenue �between Main and Saratoga,� petitioner submits no proof of his allegations regarding the conditions at the specific intersection of Kensington Avenue/Walton Drive, the alternative route proposed by respondent.  Thus, petitioner fails to demonstrate that respondent�s determination regarding the safety of the intersection is unreasonable.

Petitioner also asserts that the alternative walking route respondent suggests for Jodie is not the most direct route and, further, that the alternative route measures 1.2 miles, entitling her to transportation under respondent�s general transportation policy.

Section 191.4 of the Department of Transportation regulations provides, in pertinent part:

The route used between home and school must avoid hazardous locations when a more reasonable route is available....  [B]efore a [child safety zone] can be established, alternative solutions must be investigated.  Sometimes, a hazard can be mitigated by changing the route which the student walks to one that is slightly shorter or longer.

Respondent asserts that its proposed route is a reasonable alternative in that the intersection Jodie would be required to cross (Kensington Avenue/Walton Drive) is not hazardous.  Respondent denies that the alternate route exceeds one mile.  Other than his conclusory allegation, petitioner offers no proof of his assertion that the proposed alternative route exceeds one mile.  Therefore, I need not address petitioner�s claim for transportation on that basis.