Appeal of TREVOR COLE, on behalf of KIAH and FISCHER COLE, from action of the Board of Education of the Northern Adirondack Central School District regarding a school district boundary.

Decision No. 17,180

(September 5, 2017)

Harris Beach, PLLC, attorneys for respondent, Marnie E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Northern Adirondack Central School District (“respondent”) to consent to altering the boundary line between its district and the Beekmantown Central School District (“Beekmantown”).  The appeal must be dismissed.

According to petitioner, he and his children have resided for approximately seven years on property which is intersected by the boundary between respondent’s school district and Beekmantown.  At the time this appeal was commenced, Kiah was three and one-half years old and Fisher was seven months old.

On May 2, 2016, petitioner sent an email with attachments to respondent’s superintendent, requesting that respondent consent to alter the boundary between the school districts placing petitioner’s property within the geographic boundaries of Beekmantown pursuant to Education Law §§1506 and 1507.[1]  On May 3, 2016, the superintendent acknowledged petitioner’s email and advised him that she would meet with respondent to discuss his request.  According to respondent, it discussed petitioner’s May 2, 2016 request in executive session at a meeting held on May 9, 2016.  By email dated May 10, 2016, the superintendent informed petitioner that respondent had denied his request to alter the district’s boundary.  The superintendent wrote: “[w]hile the Board appreciates your position, they [sic] are not interested in changing District boundary lines at this time.”

Subsequently, petitioner sent another email with attachments to respondent on June 2, 2016, requesting that it “give further consideration” to his request.  Thereafter, petitioner attended respondent’s June 20, 2016 meeting and addressed the board during the public comment portion of that meeting.  Petitioner asked respondent to reconsider his request to alter the boundary line.  Respondent’s superintendent stated that petitioner’s emails and correspondence had previously been reviewed by the board and his request had been denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 7, 2016.

Petitioner asserts that respondent’s schools are located 11 miles farther from his residence than the schools of Beekmantown.  He also asserts that his family’s social connections, relatives, daycare, and other affiliations are primarily in Beekmantown.  Petitioner claims that Beekmantown has provided “tentative agreement to proceed with pursuing the minor [boundary] amendment.”  Petitioner contends that the May 9, 2016 board minutes do not indicate that respondent discussed or considered his request to amend the district’s boundary line.  Petitioner states that his June 2, 2016 request for additional consideration by respondent went unanswered and that, even after his attendance at its June 20, 2016 meeting, respondent allegedly failed to provide a basis for its denial which complies with Education Law §§1506 and 1507.  Petitioner argues that any tax revenue lost by respondent would be “small.”  Petitioner seeks an order directing respondent to consent to his proposed boundary alteration, which would place petitioner’s dwelling within the geographical boundaries of Beekmantown.  Petitioner further seeks a determination that his children are residents of Beekmantown and are entitled to attend its schools without payment of tuition. 

Respondent argues that the matter is not ripe for review and impermissibly seeks an advisory opinion because petitioner’s children are not yet school age.  Respondent also contends that the appeal is untimely and that petitioner failed to join Beekmantown as a necessary party.  Respondent asserts that it discussed petitioner’s boundary alteration request in executive session during its May 9, 2016 meeting and denied his request thereafter.  Respondent maintains that petitioner failed to sustain his burden of proving a clear legal right to the requested relief and, further, that its determination in this matter was lawful and proper.   

I will first address several preliminary matters.  Respondent objects to new material and exhibits 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Next, respondent asserts that the appeal must be dismissed as premature and not ripe for review because petitioner’s children were too young to enroll in the district when this appeal was brought.  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).  However, petitioner is a property owner seeking respondent’s consent to a boundary alteration which would place his property wholly within the Beekmantown Central School District.  Respondent cites no authority for the proposition that a request for a boundary alteration is contingent upon a property owner having children who are eligible to attend school or having children at all.  The requested boundary alteration would result in school taxes being levied on the property by Beekmantown and could affect the value of the property.  This appeal, therefore, is not seeking an advisory opinion, but rather a determination of a dispute which would have an immediate and real impact.  I, therefore, decline to dismiss the appeal as premature.

However, the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). 

Petitioner was informed by email dated May 10, 2016, that respondent denied his request for a boundary alteration.  Petitioner commenced this appeal on June 28, 2016, more than 30 days later.  Although petitioner sought reconsideration of respondent’s decision, via his June 2, 2016 email and June 20, 2016 attendance at respondent’s meeting, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Petitioner offers no excuse for his delay in commencing the appeal.  Consequently, the appeal is untimely and must be dismissed.

Petitioner’s appeal must also be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Petitioner seeks an order directing respondent to agree to a boundary alteration placing his dwelling in the Beekmantown Central School District, and also determining that his children are residents of Beekmantown entitled to attend that school district without payment of tuition.  Under Education Law §1507, which governs alterations of school district boundaries by consent, the boundary alternation sought by petitioner requires the consent of Beekmantown’s board of education as well as respondent.  Although petitioner states that he has received “tentative agreement” from Beekmantown and that Beekmantown “was responsive” to his request, in his reply petitioner provides a letter dated July 25, 2016 from Beekmantown’s superintendent which merely states that the Beekmantown board of education “would consider any and all requests related to this matter....”  However, there is no evidence that Beekmantown has, in fact, considered petitioner’s request or consented to such a change.  Inasmuch as Beekmantown would be adversely affected by a decision in favor of petitioner imposing a boundary change absent such consent, it is a necessary party to the appeal (see Appeal of Manes, 46 Ed Dept Rep 419, Decision No. 15,551; Appeal of Jimerson, 39 id. 558, Decision No. 14,310).  Similarly, a determination that petitioner’s children are entitled to attend Beekmantown’s schools tuition-free as residents of that district would clearly affect Beekmantown.  Therefore, petitioner was required to join Beekmantown as a party to this appeal, and his failure to do so also warrants dismissal of the appeal (see Appeal of W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102).

In light of this disposition, I need not address the parties' remaining contentions.[2]

THE APPEAL IS DISMISSED.

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