Appeal of MITCHELL H. PALLY, on behalf of LONG ISLAND BUILDERS INSTITUTE, and OAK TREE FARM DAIRY, INC. from action of the Board of Education of the East Elwood Union Free School District regarding proposed rezoning of Oak Tree Dairy property.

Decision No. 17,341

(March 13, 2018)

Campolo, Middleton & McCormick, L.L.P., attorneys for petitioners Long Island Builders Institute and Oak Tree Farm Dairy, Inc., Patrick McCormick, Esq., of counsel

Ingerman Smith L.L.P., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal from actions of the Board of Education of the Elwood Union Free School District (“respondent”) in expressing opposition to a proposed rezoning of real property owned by petitioner Oak Tree Farm Dairy, Inc. (“petitioner Oak Tree”).  Petitioner Pally is the Chief Executive Officer of the Long Island Builder’s Institute (“LIBI”), an association of “building industry professionals” serving Long Island.  The appeal must be dismissed.

It appears from the record that the Oak Tree Farm Dairy property, located at 544 Elwood Road in East Northport, Town of Huntington, adjoins the property on which respondent’s middle school and high school are situated.  The record indicates that an application for a change in zoning for the Oak Tree Farm Dairy property was filed with the Town of Huntington by a developer named BK Elwood, LLC, a subsidiary of the Engel Burman Group (“developer”), which requested that the property be rezoned from R-40 Residence to R-RM Retirement Community District to permit the construction of senior housing.

In a letter dated April 2, 2012, a planner in the Office of if the Director of the Department of Planning and Environment of the Town of Huntington (“Huntington Director”) notified respondent’s superintendent of schools that the Town Board had received a zone change application that if approved would replace the Oak Tree Dairy Farm with a 482-unit senior housing development.  The letter further indicated that the “proposed site plan shows an on-site sewage treatment plant, recreational amenities and recharge basins for drainage.”  The letter invited respondent to contact the Huntington Director’s Office to ask questions and make comments, and attached copies of the application, a map and the completed Environmental Assessment Form (Part 1).

In a letter to the Huntington Director dated January 10, 2013, respondent asked questions about whether a traffic study would be conducted, how respondent’s tax rate would be affected; whether any school-aged children would reside in the new units; and how the proposed zoning change could be modified.  Respondent also commented that it was interested in in using Elwood Park for athletic activities, and to that end, respondent indicated that it wished to provide input as to the design of the path linking respondent’s property to Elwood Park.

In a letter to respondent’s board president dated March 1, 2013, the Huntington Director responded that the Town of Huntington would procure a traffic study; and that, given the development’s assessed value of $684,801 and respondent’s current assessed value of $17,129,258, the development would account for approximately four percent of the tax revenues generated to respondent.  The Huntington Director did not answer the question regarding the issue of school-aged children living within the new units except to say that senior housing under the Town’s zoning code requires that at least one owner be age 55 or older and the number of children reside in other similar developments zoned as R-RM is negligible.  The Huntington Director also responded that the Town Board would accept input from respondent regarding the design of the path linking respondent’s property to Elwood Park.

In a letter to the Huntington Director, the Town Supervisor and the Town Board dated January 30, 2014, respondent informed the Town of Huntington of its recommendation that the Town Board reject the zoning change sought by the developer.  As reasons for its recommendation, the letter cited “school issues related to overall safety of our students, undue stress on our transportation system, and the possible long-term threat of overcrowding our schools.”  The letter also stated that “any boom in student population” would raise costs and put an unnecessary economic burden on school district taxpayers.

On April 22, 2014, petitioner Pally, on behalf of petitioner LIBI filed an appeal asking that I issue an order to respondent to withdraw its January 30, 2014 letter.  On June 5, 2014, that appeal was withdrawn.

On May 27, 2014, the Elwood Parent Teacher Association (“PTA”) held a meeting at respondent’s middle school on the zoning application, which the PTA opposed.  Petitioners allege that Dan Ciccone, a member of the board of education whom petitioners identify as respondent’s vice-president, also made comments to newspapers at various times expressing opposition to the zoning change and submitted a letter to the editor of Newsday expressing respondent’s opposition, which was published on May 30, 2014.

On June 12, 2014, respondent’s attorney wrote a letter to the Town of Huntington for submission at a public hearing on the zoning application in which he expressed respondent’s opposition to the zoning change.  The letter asserted that the Town of Huntington did not have sufficient information to grant or deny the application because the applicant failed to meet the requirements concerning review of environmental impact in accordance with the State Environmental Quality Review Act (“SEQRA”).  In this regard, the letter further asserted that the applicant did not submit a long-term maintenance and monitoring plan with its environmental impact statement; that of most concern to respondent was contamination of soil on the property, specifically by heavy metals, including arsenic and DDT; that the applicant did not properly review the impact on traffic, most notably the impact on school district transportation and the safety of students and staff while going to and from respondent’s middle school and high school; and that no credible study had been done of the impact on school district revenues and costs.  Respondent further asserted that the applicant did not provide the school district, as an owner of an adjoining property, with adequate notice of the public hearing, because it was sent to the wrong address, when the applicant knew the school district’s correct address.

On June 17, 2014, the Town of Huntington conducted a public hearing at which respondent’s attorney spoke on behalf of respondent and expressed its concerns about the rezoning application, as articulated in the attorney’s June 12, 2014 letter.  This appeal ensued.  Petitioners’ request for interim relief was denied on July 7, 2014.

Petitioners assert that respondent violated the provisions of Education Law §1709 by sending letters to the Town of Huntington and the editor of Newsday opposing the proposed zoning change because, respondent had no legal authority under the statute to comment on, object to, or participate in the zoning process for real property situated within the school district.  Petitioners assert that, if respondent is permitted to publicly oppose the zoning change, the rights and the interests of petitioners will be adversely affected.

As relief, petitioners request that I issue orders to respondent requiring that they withdraw their January 30, 2014 and June 12, 2014 letters to the Town of Huntington; an order prohibiting the school district and/or respondent from taking any further formal action, whether by letter, sponsorship or promotion of an event and/or meeting or by public comment to the media regarding the proposed zoning change; and an order to all of the school districts within New York State prohibiting them from taking official actions which are outside the scope of their authority, including taking any position on proposed zoning and/or rezoning of real property within their districts.

Respondent asserts that the petitioners’ appeal was not timely commenced, that the appeal must be dismissed for lack of standing because petitioners have failed to establish that they are aggrieved by respondent’s actions, and that petitioners request relief that the Commissioner cannot grant for lack of jurisdiction.

I must first address the timeliness of petitioners’ memorandum of law.  Pursuant to §276.4 of the Commissioner’s regulations, a petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later.  Where the answer is served by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner’s memorandum of law must be served and filed (8 NYCRR §276.4[a]).  Respondent served its answer upon petitioners on July 14, 2014 through a private express delivery service using overnight delivery.  Pursuant to 8 NYCRR §275.8(b), such service was complete upon delivery of the pleading, properly addressed and wrapped, to an agent or employee of the private express delivery service or upon deposit in a depository of such private express delivery service.  Thus, petitioner had 20 days from July 14, 2014 to submit a timely memorandum of law, which under General Construction Law §20 and 8 NYCRR §275.8(b) was extended until August 4, 2014, since the twentieth day fell on a Sunday.  Petitioners did not serve their memorandum of law upon respondent until August 13, 2014, thus, it was clearly untimely.  

The late filing of a memorandum of law may be permitted where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  However, petitioners did not submit an application for permission to file a late memorandum of law and there has been no such showing here.  Therefore, I have not considered petitioners’ untimely memorandum of law (see e.g. Application of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,968; Appeal of Vyas, 51 id., Decision No. 16,306; Appeal of Cook, 47 id. 402, Decision No. 15,736).    

Respondent argues that petitioners lack standing to bring this appeal.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). 

I agree with respondent that petitioners Pally and LIBI lack standing to bring this appeal. Petitioner Pally brought this appeal on behalf of LIBI as its Chief Executive Officer.  In the petition, petitioner Pally asserts that LIBI is an association that represents “building industry professionals” on Long Island including “commercial, residential, multi-families [sic] and rental buildings, as well as general contractors, and professionals serving Long Island.”  The reference to buildings as members presumably means that LIBI’s membership includes the owners of such types of buildings. The petition further alleges that LIBI has members residing within the Elwood Union Free School District.  Beyond such general allegations, however, the petition does not include any specific explanation of how petitioners Pally and LIBI are directly affected by respondent’s actions in recommending disapproval of the zoning change, and petitioners did not serve and file a reply.

To begin with, petitioners do not allege that LIBI is incorporated, and it is well-settled that an unincorporated association and an individual representative acting on behalf of an unincorporated association lack standing to maintain an appeal pursuant to Education Law §310 (see e.g. Appeal of Radford, III, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Lazarek and Roy, 55 id., Decision No. 16,838; Appeal of Barse, 54 id., Decision No. 16,753; Appeal of Ransom, et al., 54 id., Decision No. 16,647; Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 id., Decision No. 16,530; Appeal of Torres, 46 id. 301, Decision No. 15,515; Application for the Empowerment of People of African Ancestry, 39 id. 161, Decision No. 14,202).  Therefore, LIBI as an unincorporated association and Pally, as its representative, lack standing to maintain this appeal.

Even if that were not the case, petitioners Pally and LIBI have not proven that they have organizational standing.  In order to establish organizational standing, petitioner must demonstrate that one or more of its members has standing to sue, that the interests advanced in the matter are sufficiently germane to the individual members’ purposes such that the organization is an appropriate representative of those interests, and that the participation of the individual members is not required to assert this claim (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 775; Appeal of United Federation of Teachers, Local 2, et al. 54 Ed Dept Rep, Decision No. 16,668; Appeal of James, et al., id., Decision No. 16,646).  Petitioners have not alleged that any of LIBI’s members have an interest in the Oak Tree Dairy Farm property or the proposed construction of senior housing on such site and are thereby aggrieved by respondent’s actions in opposing the proposed zoning change.  Thus, petitioners Pally and LIBI have not shown that they meet the first prong of the three-part test of organizational standing.  The appeal must, therefore, be dismissed as to petitioners LIBI and Pally for lack of standing.

However, I find that petitioner Oak Tree, as owner of the Oak Tree Farm Dairy property, has sufficiently alleged that it is aggrieved by respondent’s actions in opposition to the zoning change and I, therefore, decline to dismiss the appeal in its entirety for lack of standing.  The gravamen of the appeal is that respondent has unlawfully taken actions to oppose the zoning change and, if that were proven, respondent’s actions would adversely affect the owner of the Oak Tree Farm Dairy property by interfering with the owner’s ability to have senior housing located on the site, whether that is by causing delay in approval of the zoning change application or ultimately in influencing the Town of Huntington to disapprove the application.     

With respect to respondent’s argument that 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).  In this appeal, petitioners are challenging respondent’s actions in issuing the January 30, 2014 and June 12, 2014 letters opposing the proposed zoning change; allowing the Elwood PTA to hold a May 27, 2014 meeting on school district property to rally public opposition to the rezoning; having respondent’s vice-president make comments to the press at various times from April 2012 to May 30, 2014 and then send a letter to the press dated May 30, 2014 in opposition to the rezoning; and having the school district attorney appear at the June 17, 2014 public hearing to oppose such change.  Petitioners commenced this appeal on June 25, 2014, and it is, therefore, untimely to the extent it challenges actions taken by respondent prior to May 26, 2014, since petitioners have not provided an excuse for the delay.

However, the appeal is clearly timely with respect to the actions of respondent taken on May 27, May 30, June 12, and June 25, 2014.  

Finally, respondent contends that to the extent petitioners seek an order informing all school districts that they are prohibited from taking official action outside of their jurisdiction, including taking any position on zoning or rezoning of property within their school district, they are impermissibly seeking an advisory opinion or declaratory ruling.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  I agree with respondent that petitioners are impermissibly seeking a form of advisory opinion and declaratory ruling in this regard.  I would decline to grant such relief, in any event, because the petition contains no allegation that any board of education other than respondent has taken action in opposition to the zoning or rezoning of property.  Moreover, such other boards of education would be necessary parties, since they would be adversely affected by an order constraining their ability to oppose zoning changes, and any claims against such other boards of education would be dismissed for failure to join them as necessary parties.

Petitioner Oak Tree’s remaining claims relating to respondent’s actions taken after May 26, 2014 in opposition to the rezoning must be dismissed on the merits.  Petitioner’s appeal is premised upon its assertion that respondent acted in excess of its statutory authority under Education Law §1709 and, therefore unlawfully in taking official actions in opposition to the rezoning.  Petitioner argues that, because the powers and duties of a board of education enumerated in Education Law §1709 do not specifically include opposing a zoning change, respondent’s actions were beyond its jurisdiction and in conflict with Education Law §1709.  While I agree with petitioner that a board of education has only those powers and duties granted by statute (see Bassett v. Fish, 75 NY 303; Cook v. Griffin, 47 AD2d 23; Leone v. Hunter, 21 Misc2d 750), I reject petitioner’s argument that, because the general powers and duties enumerated in Education Law §1709 do not specifically include actions to oppose zoning changes, respondent lacked statutory authority to oppose the rezoning of petitioner’s property.  To begin with, the language of Education Law §1709 is not exclusive—-other provisions of the Education Law and other statutes can and do grant powers and duties to boards of education not specifically enumerated in Education Law §1709.  In this appeal, however, respondent does not assert that it was acting under another grant of statutory authority, but rather contends that its actions were authorized under Education Law §1709.

There are two provisions of Education Law §1709 that are pertinent to this appeal.  The first is Education Law §1709(9) which empowers the board of education to take charge and possession of school district property and provides that title to such property is vested in the board of education.  Thus, the board of education is not only the governing body of a municipal corporation as defined in General Construction Law §66(2), it is a property owner, with the implied powers of a property owner.  The second is Education Law §1709(33), which provides that a board of education has the power and duty:

On this record, it appears that the Town of Huntington solicited comment from respondent on the proposed rezoning. It hardly seems unusual that the Town would seek input from respondent about the environmental impact or other impact of the zoning change on the school district.[1]  Town Law §263, which relates to a town’s authority to adopt and amend zoning regulations, provides that the purposes of such zoning regulations include, among other things: “to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements” (emphasis added).  Not only does this statute contemplate that the impact on schools be considered when rezoning is proposed, but the record also indicates that respondent is an adjoining property owner, with two schools located on the adjoining property, whose interests as a property owner may be impacted. 

Here, in its June 12, 2014 letter, respondent articulated several reasons for opposing the zoning change, including concerns about the failure of the applicant to comply with SEQRA in that the applicant did not submit a long-term maintenance and monitoring plan with its environmental impact statement; concerns with contamination of soil on the property and the need for further investigation and remediation of contamination in Underground Injection Wells; that the applicant did not properly review the impact on traffic; and that no credible review has been conducted of the impact on school district revenues and costs based on changes in the district’s tax base and potential increases in student enrollment.  Whatever the merits of respondent’s expressed concerns, which is a matter for the Huntington Town Board to decide as the decision-maker on the rezoning application, it is clear that respondent raised concerns about the rezoning that relate to the operation of the school district and the interests of the school district as owner of an adjoining property which is responsible for protecting the health and safety of its students and staff.  Accordingly, contrary to petitioner’s arguments, I find that respondent’s actions in expressing opposition to the rezoning were reasonably necessary to carry out its powers and duties as the governing body of the school district and the owner of an adjoining property and, therefore, were authorized pursuant to Education Law §1709(33)[2].  Therefore, I reject petitioner’s argument that respondent and its officers acted outside of respondent’s statutory authority when they took various actions to express opposition to the rezoning application, and this claim must be dismissed.

Finally, although petitioner asserts that it would have no recourse if the board of education is permitted to express opposition to the rezoning application, that plainly is not the case.  The school district is not the decision-maker on whether the rezoning application should be granted, the Town of Huntington is, and petitioner is free to rebut any concerns raised by the school district. In addition, there is nothing to prevent an aggrieved party from challenging the actions of a board of education related to opposition to a rezoning application in an appeal to the Commissioner or an Article 78 proceeding in State Supreme Court as arbitrary and capricious or in violation of law other than the board of education’s general authority under Education Law §1709 as discussed herein. 

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

THE APPEAL IS DISMISSED.

END OF FILE