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Decision No. 16,398

Appeal of LEANDRA HABLE from action of the Horseheads Central School District and the Elmira Heights Central School District regarding a school district boundary.

Decision No. 16,398

(August 30, 2012)

Welch & Zink, attorneys for petitioner, George J. Welch, Esq., of counsel  

Sayles & Evans, attorneys for respondent Horseheads Central School District, James F. Young, Esq., of counsel

Shull & Coyles, attorneys for respondent Elmira Heights Central School District, Donald Coyles, Esq., of counsel

KING, JR., Commissioner--Petitioner appeals the determination of the Horseheads Central School District (“respondent Horseheads”) that she is not a district resident.  The appeal must be dismissed.

Petitioner resides in the Village of Horseheads, New York.  During the 2010-2011 school year, her son attended school in the Horseheads Central School District.  During the fall of 2011, petitioner was notified that her property was located in the Elmira Heights Central School District (“Elmira Heights”) and that her son was no longer entitled to attend schools in the Horseheads school district.

By letter dated December 1, 2011, petitioner challenged the district’s determination.  In the alternative, petitioner requested that respondent Horseheads consent to a boundary alteration whereby petitioner’s property would be located within the Horseheads Central School District.  By letter dated December 7, 2011, respondent Horseheads’ counsel notified petitioner that the district upheld its residency decision but indicated that, if Elmira Heights was willing to transfer the property to the Horseheads school district, respondent Horseheads would not object. This appeal ensued. Petitioner’s request for interim relief was granted on December 29, 2011.

Petitioner asserts that it is her “belief that the Horseheads Central School District was formed to include all lands lying within the Village of Horseheads,” that respondent Horseheads failed to provide evidence that petitioner’s property had been “taken out of” the district, that her son was singled out and determined to be ineligible to attend school in respondent Horseheads’ district due to his disability and that other residents on petitioner’s street have attended school in the district.

Respondent Horseheads maintains that petitioner’s property is located in Elmira Heights and not in the Horseheads school district, that petitioner’s son was not singled out for any reason and that respondent Horseheads appropriately followed Board Policy 5150 which provides that only students who reside in the Horseheads Central School District can attend its schools.  Elmira Heights also maintains that petitioner’s property is located in its district.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

To the extent that petitioner challenges respondent Horseheads’ determination that her property lies outside the district, petitioner has failed to meet her burden.  She asserts only that it is her “belief” that her property is within the district.  She provides three maps attached to her attorney’s December 1, 2011 letter to the district, two of which he describes as showing that the contested parcel was “cut out of” or “taken out of” the Horseheads school district for inclusion in Elmira Heights.  The third he characterizes as showing “lines which would include the subject parcel within the Horseheads District.”  I have reviewed all three of the maps upon which petitioner relies.  The first two do not clearly identify the property’s location within either school district.  The third map appears to indicate that the property is located in Elmira Heights.  The December 1, 2011 letter concludes, “The point is that some sources find the contested parcel to be within the Horseheads district.”  At best, petitioner merely raises a question as to whether and why the property was transferred to Elmira Heights.

In contrast, both respondents Horseheads and Elmira Heights submit verified answers attesting that the property lies within the Elmira Heights school district.  Respondent Horseheads submitted school tax records showing that petitioner’s property is owned by William J. Lusk and is listed as being in the Elmira Heights school district.  Moreover, several adjoining properties also are listed in Elmira Heights.  Respondent Horseheads explained that it previously permitted individuals residing at some of those properties to attend its school district.  However, it revised its admission policy on May 26, 2011 to no longer permit non-resident attendance.

Upon review of the totality of the record evidence, I cannot conclude that petitioner met her burden of proof and find that she did not demonstrate that respondent Horsehead’s determination that her property is outside the Horseheads Central School District and that her son, therefore, is not entitled to attend its schools as a district resident is arbitrary, capricious or unreasonable.

To the extent petitioner appeals from a refusal of the boards of education of the Horseheads and Elmira Heights Central School Districts to consent to alter the boundary between them, pursuant to Education Law §1507, the appeal is premature The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).

Upon consent of the boards of education of both affected school districts, the boundary between the districts may be altered (see Education Law §1507).  Although counsel for respondent Horseheads previously stated that the district would agree to a boundary change if Elmira Heights would consent, there is no indication that petitioner formally sought the consent of either board of education or that either board took action on such a request.  Even if I were to accept the December 7, 2011 letter from respondent Horseheads’ counsel as consent by the Horseheads Board of Education, petitioner has not yet sought consent from Elmira Heights.  The appeal, therefore, is premature, warranting dismissal.

In light of the above disposition, I need not address the parties’ remaining contentions.