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Decision No. 18,228

Appeal of DARRON BERQUIST and GLENN ROCKMAN from action of the Board of Education of the Garrison Union Free School District, Lakeland Central School District, Putnam Northern Westchester BOCES, Carl Albano, Jocelyn Apicello, Becky Burfeind, Angela Conti, Michael Daly, David Gelber, Madeline Julian, Adam Kaufman, Denise Kness, Brendan Lyons, Anna Massaro, Robert Mayes, Courtney McCarthy, Rachelle Nardelli, Donald Pinkowski, James Ryan, Kent Sahacht, Matthew Speiser, and Sara Tormey regarding a school district boundary.

Decision No. 18,228

(January 17, 2023)

Shaw, Perelson, May & Lambert, LLP, attorneys for the Lakeland respondents, Margo L. May, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for the Garrison respondents, Kristine Amodeo Lanchantin, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent Putnam Northern Westchester BOCES, David S. Shaw, Esq., of counsel

ROSA., Commissioner.--Petitioners[1] appeal from the refusal of the Boards of Education of the Garrison Union Free School District (“Garrison”) and Lakeland Central School District (“Lakeland”) to consent to a school district boundary alteration.  Petitioners also name the Putnam Northern Westchester Board of Cooperative Educational Services (“BOCES”), the BOCES district superintendent, and multiple school district officers and employees (“individual respondents”).  The appeal must be dismissed.

Petitioners own property bisected by the school district boundary line between Garrison and Lakeland.  The property consists of two parcels.  The fist parcel is located within Garrison’s geographic boundaries and is unimproved.  The second parcel is within Lakeland.  Petitioners’ residence, constructed in 2019, is located on the Lakeland portion.

In July 2020, petitioners submitted a letter to Lakeland and Garrison designating Garrison as the school district of attendance pursuant to Education Law § 3203.

By letter dated February 20, 2021, petitioners requested that Garrison’s superintendent “order ... a proceeding for the alteration of the boundaries of the districts so that the entire parcel ... [was] permanently and wholly within [Garrison] for all purposes....”  By email dated April 19, 2021, Garrison’s superintendent denied the request as outside his authority.  The superintendent advised petitioners that they would need to obtain approval from Lakeland first.

By letter dated June 15, 2020, petitioners posed a materially identical request to Lakeland’s superintendent.  Petitioner additionally asserted that Lakeland had failed to appropriately remit school taxes assessed on their property to Garrison.

By letter dated June 30, 2021, Lakeland’s superintendent stated that he, too, lacked authority to alter the boundary of petitioners’ property.  The superintendent further indicated that the remittance of school taxes arising from a designation under Education Law § 3203 was a matter between the two districts.

By email dated July 12, 2021, petitioners requested a meeting with Garrison to discuss the matter further.  By letter dated July 16, 2021, Garrison’s superintendent indicated that the district had no interest in seeking a boundary alteration.  The superintendent further recommended that petitioners contact the district superintendent for the Putnam Northern Westchester BOCES.  This appeal ensued.

Petitioners contend that Garrison and Lakeland erred in refusing to consent to an alteration of the school district boundary line.  Petitioners further argue that the taxes they pay to Lakeland should be remitted to Garrison.  Petitioners seek an order altering the boundary line to place their property wholly within Garrison. 

Respondents argue that petitioners have no legal right to compel a boundary alteration or the remittance of their school taxes from Lakeland to Garrison.  The individual respondents further argue that the appeal should be dismissed for lack of personal service.

I must initially address two matters concerning the scope of the record.  First, respondents object to the scope of petitioners’ replies.[2]  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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 petitioners’ replies, 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.

Second, petitioners have submitted additional evidence consisting of budget presentations for the 2022-23 school year from Lakeland and Garrison.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses 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).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  While this evidence has minimal relevance to the issues addressed herein, I have accepted it into the record.

The appeal must be dismissed against the individual respondents for lack of personal service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  In their answers, respondents state that petitioner failed to personally serve any of the individual board members named in the petition.  The affidavit of service submitted by petitioners reflects that service was made upon the individual respondents by mail.  Because the petition was not personally served upon the individual respondents in a timely manner,[3] the appeal must be dismissed against them.

Turning to the merits, a district superintendent may only alter the boundaries of any school district within her or his jurisdiction with the written consent of all boards of education that would be affected thereby (Education Law § 1507 [1]).[4]  The Commissioner will only reverse a board of education’s refusal to provide such consent if arbitrary, capricious, or contrary to the educational interests of the students involved (Appeal of Bearup, 30 Ed Dept Rep 340, Decision No. 12,488; Appeals of Salerni and the Bd. of Educ. of the Saratoga Springs Enlarged City School Dist., 27 id. 393, Decision No. 11,987, affd 152 AD2d 241 [3d Dept 1989]; Matter of O’Connor, et al., 4 id. 8, Decision No. 7,400).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Petitioners have failed to demonstrate that Garrison or Lakeland unreasonably withheld its consent to a boundary alteration.  Petitioners have presented no educational justification for their proposed alteration, merely asserting that the effect on Lakeland’s tax revenues and educational programming would be “negligible” and would result in Garrison receiving additional tax revenue.  No children would be affected by petitioners’ proposed boundary adjustment.  The only parcel affected belongs to petitioners, who admit that they “do not presently have any children.”  Given the fact that the “paramount consideration” in assessing a proposed boundary alteration “is the educational interests of the children involved” (Matter of O’Connor, et al., 4 Ed Dept Rep 8, Decision No. 7,400; see also Matter of Zeltmann, 15 id. 47, Decision No. 9,070; Matter of Hartzell, 7 id. 128, Decision No. 7,863), I find that petitioners have failed to prove a clear legal right to their requested relief (see Matter of McCord, 19 Ed Dept Rep 509, Decision No. 10,230 [declining to order two boards of education to accede to a boundary alteration request where the request was based upon petitioner’s personal preference]).[5]

To the extent petitioners argue that school taxes they pay to Lakeland should be remitted to Garrison, petitioners lack standing to raise such claim.  If a child entitled to educational services takes up residence on petitioners’ property, the designated school district would have the right to seek remittance of school taxes if it is not collecting them in the first instance (Appeal of Board of Educ. of the Edgemont Union Free Sch. Dist., 56 Ed Dept Rep, Decision No. 17,088).  Moreover, petitioners’ designation under Education Law § 3203 (2) does not affect the manner in which school taxes are levied and collected (Appeal of Kiley, 61 Ed Dept Rep, Decision No. 18,125).

I have considered petitioners’ remaining arguments and find them to be without merit.




[1] For ease of reference, the term “petitioners” is used to refer to the actions of one or both petitioners.


[2] Petitioners submitted four separate replies.


[3] All personal service of the petition that occurred more than 30 days after July 16, 2021—the latest date by which the 30-day time limitation could be calculated—is untimely.


[4] Although Education Law §§ 1508 and 1509 suggest that a district superintendent has the ability to alter a school district boundary line without consent, those provisions are now inapplicable.  First, since at least the 1950s, the Commissioner held that this unilateral power was limited to the kinds of school districts described in Education Law § 1507 (2); i.e., union free school districts with less than 4,500 residents that did not employ a superintendent (Appeal of Roberta, 38 Ed Dept 690, Decision No. 14,119; Matter of McCord, 19 id. 509, Decision No. 10,230; Matter of Murtagh, 10 id. 211, Decision No. 8,278; Matter of Wegener, et al., 1 id. 106, Decision No. 6,482; Matter of Taylor, 74 St Dept Rep 25, Decision No. 5,797).  Second, a 1996 Act of the Legislature eliminated such districts, known as “dependent districts” (L 1996, ch 474, § 11).  Thus, district superintendents can no longer alter a school district boundary without the consent of all boards of education that would be affected thereby.


[5] Additionally, the ultimate determination as to whether to order a boundary alteration rests with the district superintendent (Education Law § 1507).