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Decision No. 17,499

Appeal of KAREN MATISHEK, on behalf of her daughter EMILY, from action of the Board of Education of the City School District of the City of New York regarding transportation.

Decision No. 17,499

(September 6, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the New York City Department of Education (“respondent”) to deny her daughter (“the student”) a hazard variance request or a change in transportation for the 2017-2018 school year. The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student resided within respondent’s district and the student attended third grade at Public School 32 (“P.S. 32”) located in Staten Island, New York. 

Respondent's transportation policy (“Chancellor's regulation A-801”)[1] provides for free transportation, either by school bus or public transit via a MetroCard, to students in grades three through six who live one mile or more from the school they attend. Students in grades three through six who reside one-half mile or more but less than one mile from school are eligible for a half-fare MetroCard for public transportation. Students not otherwise entitled to school bus transportation may annually seek a variance to receive such transportation, based on hazardous conditions along the student's walking route to school or to a bus stop.

According to respondent, the student resides less than one mile from P.S. 32, and therefore, pursuant to Chancellor’s Regulation A-801, is not eligible for yellow school bus transportation.  However, on June 21, 2017, petitioner completed a request for a hazard variance, on behalf of the student, and submitted it to respondent’s Office of Pupil Transportation (“OPT”).  By letter dated September 5, 2017, OPT denied petitioner’s hazard variance request.  Attached to OPT’s letter was a map showing the shortest walking path between the student’s home and P.S. 32, with a distance of 0.904 miles.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 19, 2017.    

Petitioner contends that OPT has “capriciously determined an alternate route which is unacceptable and outlandish for anyone to expect an [eight] year old to walk safely to school.”  Petitioner alleges that this route contains 13 high traffic intersections, “only two [which] have traffic control devices; one a traffic light, and one a crossing guard;” three communal streets/driveways which have “multiple residential vehicles pulling in and out” and a “lack [of] traffic controls of any sort.”  She also alleges that the route includes a “a stretch of [four] blocks (approx. 1350 feet) distance walk alongside a highway like roadway” and a construction site which will expose the student to “heavy machinery and numerous construction vehicles.” 

Petitioner also contends that “the distance that OPT has found of 0.904 miles is questionable” because OPT’s official map does not “truly determine the actual door to door distance for our children but yet denies them bus service according to a negligible distance requirement.”

As relief, petitioner seeks a determination that the student “is entitled to hazard variance approval through grade 5 ... ” and states that “if approved, [the student] would be assigned an established bus route to P.S. 32 that has numerous vacant available seats of which [her] [five] year old daughter [] is currently a pupil on ....”

Respondent argues that petitioner has failed to state a claim upon which relief can be granted, and therefore, the petition must be dismissed.  Respondent asserts that its determination to deny petitioner’s request for a variance was not arbitrary or capricious.

To the extent that petitioner challenges respondent’s denial of her request for transportation for the 2017-2018 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Petitioner is challenging respondent's denial of her request for a hazard variance for the 2017-2018 school year.  The 2017-2018 school year has ended, and in respondent's district, variance requests are submitted annually (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Harris, 57 id., Decision No. 17,177; Appeal of Allen, 56 id., Decision No. 16,970).  Therefore, petitioner's challenge to respondent's denial of her 2017-2018 variance request is moot.

To the extent that petitioner is requesting a variance for the 2018-2019 school year and beyond, the appeal is premature.  Facts and circumstances underlying a transportation variance request based on alleged hazards may change with respect to future school years and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No 17,306; Appeal of Allen, 56 id. Decision No. 16,970; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). 

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891).

The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioner has not clearly established that respondent’s denial of petitioner’s request for a variance based on hazard was arbitrary, capricious or unreasonable, or an abuse of discretion.  The record indicates that OPT conducted a Hazard Area Evaluation on August 22, 2017 which consisted of a site visit to three intersections identified by petitioner as hazardous on her Hazard Evaluation Request.  The investigator used a point system to determine whether hazards existed.  The investigator evaluated criteria including, but not limited to, traffic conditions such as traffic volume, speed limit, and traffic control devices, which are assigned point values.[2]  In an affidavit, OPT’s chief of staff avers that OPT determined that there are no hazardous conditions that would warrant the issuance of a variance. 

The form indicates that in this case, twelve points (or more) are required qualify for a hazard exemption.  The record indicates that the alleged hazards, in this case the three intersections identified by petitioner, were scored a point value of three each, for a total point value of nine. To support her contention, petitioner submits a “Left Turn Pedestrian and Bicyclist Crash Study” dated August 2016; a section from the OPT safety manual; photographs of “[three] communal streets/driveways”; a photograph of what petitioner characterizes as a “highway like roadway”; and a photograph of an “active construction site.” However, petitioner has not established, through these photographs or documents, that respondent’s determination based on conditions at the three intersections was arbitrary, capricious, unreasonable or an abuse of discretion.

Petitioner argues that respondent has applied the hazard variance criteria inconsistently and states that her older daughter and two neighbors “have all qualified for the hazard variance” and that “[h]azard [v]ariance #H1687 [] Regulation suggests that the remedy should be the same for all petitioners.” The record indicates that petitioner’s older daughter’s hazard variance request was granted on September 29, 2016 and “assuming that all conditions remain unchanged, [] will expire on June 30, 2017.”  However, as stated above, facts and circumstances underlying a transportation variance request based on alleged hazards may change, therefore, I cannot find that based on this limited evidence, petitioner has met her burden of proving that respondent’s transportation determination was arbitrary, capricious, unreasonable or an abuse of discretion.

Petitioner’s challenge to respondent’s method of measuring distance is also without merit.  The affidavit from OPT’s chief of staff further avers that OPT has “approved a walk route between the [s]tudent’s home and school.” The map, attached as an exhibit to the chief of staff’s affidavit, indicates that to determine the shortest pedestrian accessible walking path between a student’s home and his or her school or public transportation, OPT uses the Department of City Planning’s Linear Integrated Ordered Network (“LION”) street map.  The map also indicates that the distance of the calculated walking path between petitioner’s house and P.S. 32 school is 0.904 miles. Petitioner submits a map printed from Google Maps purporting to show the distance between her home and P.S. 32 school as 1.0 miles. 

Petitioner contends that OPT does not determine door to door distance.  However, a board of education has broad discretion to determine how transportation is to be provided (Appeal of Bougiamas, 57 Ed Dept Rep, Decision No. 17,306; Appeal of A.P., 48 id. 380, Decision No. 15,891). Establishing transportation routes and measuring distances are within the discretion of the board of education (Appeal of Yavno, 55 Ed Dept Rep, Decision No. 16,884; Appeal of Zheng, 54 id., Decision No. 16,776).  A board of education is neither required to expend an unreasonable amount of time, effort or money in measuring distances for the purpose of determining eligibility for transportation, nor make such measurements with the accuracy of a professional survey (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Schwab, 47 id. 73, Decision No. 15,630). 

As noted, petitioner submits a Google map as evidence that the distance between her home and P.S. 32 is approximately one mile, but has failed to explain why such map should be substituted for respondent’s calculation using its software – DOE’s standard measurement tool - or why respondent’s use of the LION calculation or the route used is arbitrary, capricious or unreasonable (Appeal of Xiang, 56 Ed Dept Rep, Decision No. 16,925; Appeal of Yavno, 55 id., Decision No. 16,884; Appeal of Zheng, 54 id., Decision No. 16,776).

Petitioner alleges that the OPT identified route contains “13 high traffic intersections,” only two of which have traffic control devices and 11 of which lack all-way stop signs.  However, petitioner only identified three intersections as hazardous in her Hazard Request Form and cannot on appeal seek to have respondent’s determination overturned as arbitrary and capricious based on conditions at intersections not identified in the Hazard Request Form.  Similarly, while it is not clear where in the form petitioner could raise her concerns about three communal streets/driveways and “a stretch of four blocks ... alongside a highway like roadway,” respondent asserts that petitioner’s proper recourse is to submit a new request for a variance due to these hazardous conditions.  Therefore, these alleged hazards are not at issue in this appeal, but could be raised in a future variance request. 

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




[1] Neither party has submitted respondent's transportation policy, Chancellor's regulation A-801, as part of the record in this appeal; therefore, I have taken administrative notice of such policy, which is published on respondent's official website.


[2] For example, the form includes evaluation information such as “vehicle conditions.”  It appears that an investigator is required to count passing cars over a set period of time. The form indicates that if less than 50 cars pass in that time period, the condition is assigned a point value of one.  If between 50 and 100 cars pass in that time, it is assigned a point value of two.