Appeal of RICHARD HARGRAVE, on behalf of his son, RICHARD JOSEPH HARGRAVE, from action of the Board of Education of the Brewster Central School District regarding a school district boundary.

Decision No. 17,923

(September 10, 2020)

 Gronbach Law Offices, LLC, attorneys for petitioner, David R. Gronbach, Esq., of counsel

             Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

Rosa., Interim Commissioner.--Petitioner appeals a decision of the Board of Education of the Brewster Central School District (“respondent”) that his son, Richard Joseph (the “student”), is not a district resident.  The appeal must be dismissed.

Petitioner owns a parcel of land that is located partially within respondent’s district and partially within the State of Connecticut (the “property”).  The property has two addresses, one for the New York portion (the “in-district address”) and the other for the Connecticut portion (the “Connecticut address”).  The Connecticut address contains a single-family dwelling where petitioner and the student reside.  According to the record, the in-district address is classified as “[r]esidential [v]acant [l]and” and contains no dwellings; however, petitioner avers that the in-district address contains a driveway, a septic system, and landscaping.  Prior to the events giving rise to this appeal, the student attended respondent’s schools as a resident student.

In a letter dated August 20, 2018, respondent’s residency officer advised petitioner that it had come to his attention that petitioner and the student might not be district residents.  The residency officer stated that, if petitioner continued to seek the student’s admission to respondent’s schools tuition-free, he must comply with respondent’s policy for the admission of non-resident students (the “policy”).[1]  As relevant here, the policy indicates that “[n]on-resident families whose property intersects the border of New York and Connecticut may apply to have their child(ren) attend” respondent’s schools without payment of tuition if:  (1) they present a survey “prepared by a licensed surveyor showing the state line crosses through their dwelling”; (2) the survey is dated no earlier than 60 days prior to the date upon which they seek enrollment; and (3) they pay taxes to the district. 

According to respondent, petitioner spoke with the residency officer by telephone on August 23, 2018 and stated that he was unable to provide the required survey.  Petitioner then appeared before respondent on September 4, 2018 and submitted a written statement, which, among other things, requested that respondent “grandfather” properties such as his in “to continue to receive their current level of district services, indefinitely.”  The record reflects that respondent permitted the student to attend its schools during the 2018-2019 school year, which was the student’s junior year of high school.

By letter dated November 13, 2019, the residency officer informed petitioner that the district had determined that, based on “documentation and information [petitioner] provided”; property tax records for the property; and petitioner’s failure to provide a survey as required by the policy, the student was “not considered a legal resident of the [d]istrict and [was] not eligible to attend school in the [d]istrict.”  Nevertheless, the residency officer indicated that the district would permit the student to “continue to enroll ... until graduation.”  This appeal ensued.

Petitioner contends that he is a resident of respondent’s district pursuant to Education Law §3203(1).  Petitioner further asserts that he did not receive “actual notice” of the enactment of the policy; that the policy improperly created a “presumption” of non-residency that shifted the burden to him to prove his residency; and that respondent applies the policy inconsistently based on “favoritism/bias.”  Petitioner additionally argues that respondent is estopped from declaring that the student does not reside within its district because, in 2001, a district official advised petitioner that the property “would qualify” for residency status.  For relief, petitioner seeks a determination that “[p]etitioner and his [p]roperty qualif[y] for ‘residency’ within [respondent’s] [d]istrict,” thus entitling the student to receive transportation and attend respondent’s schools without payment of tuition. 

Respondent argues, inter alia, that the appeal must be dismissed as moot because it permitted the student to complete the 2019-2020 school year, which was his senior year.  On the merits, respondent argues that its residency determination was rationally based on district policy and was not arbitrary or capricious.  Respondent further argues that petitioner may not invoke estoppel to prevent respondent from discharging its statutory duties.  Respondent additionally avers that this appeal is indistinguishable from Appeal of Wertman (58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Matter of Wertman v. NYS Educ. Dept., et al., Sup. Ct., Albany Co., Special Term [Cholakis, A.J.S.C.], December 30, 2019) and must be dismissed for the reasons set forth in that decision.

First, I must address two procedural issues.  Petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Additionally, following submission of the parties’ pleadings, petitioner submitted a letter dated July 21, 2020.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Because petitioner did not seek prior permission to submit his July 21, 2020 letter, and he seeks to raise new issues therein, I have declined to consider the letter as part of the record before me.

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).  Here, respondent avers in its answer that the matter is moot because it permitted the student to complete his senior year.  In response to a request for additional information from my Office of Counsel pursuant to 8 NYCRR §276.5, respondent’s counsel has submitted an affirmation indicating that, based on his communication with the principal of respondent’s high school, the student did in fact graduate from respondent’s schools on June 18, 2020.  Therefore, petitioner’s claim that the student is entitled to attend respondent’s schools as a district resident is now moot (Appeal of Walsberg, 57 Ed Dept Rep, Decision No. 17,332; Appeal of S.P., 56 id., Decision No. 16,591).

Petitioner argues that the matter is not moot because he “may have children and/or grandchildren at the [property who] seek to attend [respondent’s] schools in the future,” and he is “likely to sell the [p]roperty to a family with school[-]age children in the future.”  These claims are speculative and premature.  It is well established that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Because any claims concerning future children who may reside at the property are inherently speculative, I cannot adjudicate such claims in the instant appeal.

Nor do such claims establish that any exception to the mootness doctrine applies.  The Court of Appeals has held that an otherwise moot matter may be justiciable where there is:  (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues (Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 714-715 [1980]).  Petitioner has not met his burden of proving that the instant scenario fits within this narrow exception to the mootness doctrine (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; Appeal of the Board of Education of the Greenwood Lake Union Free School District, 58 id., Decision No. 17,549; Appeal of C.H., 52 id., Decision No. 16,465).  Although petitioner asserts that the issue raised in this appeal is “likely to recur,” he offers no support for this contention beyond the hypothetical scenarios outlined above, which are insufficient to demonstrate a likelihood of repetition.  Moreover, petitioner does not allege either that the issue raised in this appeal would typically evade review or that resolution of this dispute would address a novel issue of public concern (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; Appeal of the Board of Education of the Greenwood Lake Union Free School District, 58 id., Decision No. 17,549).  Notably, the Commissioner has previously rendered a decision on the primary issue petitioner raises in this appeal (Appeal of Wertman, 58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Matter of Wertman v. NYS Educ. Dept., et al., Sup. Ct., Albany Co., Special Term [Cholakis, A.J.S.C.], December 30, 2019).  Accordingly, I find that the mootness exception is inapplicable, and the appeal must be dismissed as moot with respect to the student (Appeal of Walsberg, 57 Ed Dept Rep, Decision No. 17,332; Appeal of S.P., 56 id., Decision No. 16,591).

To the extent that petitioner seeks relief on his own behalf – insofar as he requests “[a] determination that [p]etitioner and his [p]roperty qualif[y] for ‘residency’ within [respondent’s] [d]istrict” – I find that petitioner lacks standing to bring such claims.  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioner has not established that he has suffered any personal damage or injury as a result of respondent’s actions.  Petitioner commenced this appeal “on behalf of” the student “regarding the denial of services on the basis of residency.”  He did not commence the appeal individually, and he does not allege any personal damage or injury to his or her civil, personal or property rights in the petition.  Moreover, petitioner appeals from respondent’s determination that the student was “not considered a legal resident of the [d]istrict[] and ... not eligible to attend school in the [d]istrict.”  Respondent did not render any determination concerning petitioner’s individual right as a property owner to “qualify” for residency.  Because petitioner has not adequately established how he is personally aggrieved by respondent’s determination in this matter, I find that the appeal must be dismissed for lack of standing to the extent that petitioner seeks relief on his own behalf (see generally Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,281).

Even if the merits of petitioner’s claims were properly before me, I would dismiss the appeal for the same reasons set forth in Appeal of Wertman (58 Ed Dept Rep, Decision No. 17,614, judgment granted dismissing petition, Matter of Wertman v. NYS Educ. Dept., et al., Sup. Ct., Albany Co., Special Term [Cholakis, A.J.S.C.], December 30, 2019).  That appeal also involved the residency status of a property partially located within respondent’s district and partly within the State of Connecticut.  Counsel for petitioner, who also represented the petitioner in Appeal of Wertman, poses essentially the same arguments raised in that appeal but offers no convincing explanation as to why I should depart from its holding and reasoning.  Therefore, even if this appeal presented a live controversy, it would be dismissed on the merits.

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

THE APPEAL IS DISMISSED.

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