Decision No. 18,295
Appeals of AMELIA MANDERS, on behalf of her child, from action of the Board of Education of the Hoosic Valley Central School District and G. Michael Apostol as superintendent regarding transportation.
Decision No. 18,295
(June 29, 2023)
Girvin & Ferlazzo, PC, attorneys for respondent, Erin R. Morris, Esq., of counsel
ROSA., Commissioner.--In two separate appeals, petitioner challenges determinations of the Board of Education of the Hoosic Valley Central School District (the “board”) and superintendent G. Michael Apostol (“superintendent”) (collectively, “respondents”) to deny her child (the “student”) transportation to a nonpublic school for the 2021-2022 and 2022-2023 school years. Because the appeals present similar issues of fact and law, they are consolidated for decision. The appeals must be dismissed.
Petitioner and the student reside in respondents’ district and the student attends the LaSalle Institute (“LaSalle”), a nonpublic school located outside of the district. In a request for transportation dated August 11, 2021, petitioner requested transportation for the student to LaSalle for the 2021-2022 school year. In her request, petitioner indicated that the distance from her home to LaSalle was 14.7 miles. In an email dated August 16, 2021, respondent’s transportation supervisor denied petitioner’s request as late and in excess of the 15-mile limitation, stating that “the mileage [was] 15.2 [miles] driveway to driveway.” In an email dated August 19, 2021, the transportation supervisor further indicated that school bus routing software identified the distance as “15.054 miles.”
In a letter dated August 20, 2021, the superintendent upheld the denial of petitioner’s request for transportation because her request was received after the deadline and her residence was located more than 15 miles from LaSalle. The first appeal ensued. Petitioner’s request for interim relief was denied on October 19, 2021.
In a letter dated February 28, 2022, petitioner requested transportation from respondents for the 2022-2023 school year. In her request, petitioner again asserted that the distance from her home to LaSalle was 14.7 miles. By letter dated March 22, 2022, the superintendent denied petitioner’s request, stating that the student lived 15.2 miles from LaSalle. The second appeal ensued. Petitioner’s request for interim relief was granted on May 6, 2022.
Petitioner argues, among other things, that respondents’ denials of her transportation requests were arbitrary and capricious because the board lacks a policy to calculate transportation mileage and its shifting mileage calculations were inaccurate. For relief, petitioner requests a determination that the student’s residence is located within 15-miles of Lasalle, thus entitling him to transportation.
Respondents argue that both appeals must be dismissed for improper service. Respondents also contend that the first appeal must be dismissed as untimely. Respondents further argue that, with respect to the first appeal, late enrollment in a private school is not a reasonable explanation for the late submission of a transportation request. Respondents additionally argue that petitioner failed to meet her burden to demonstrate that the student is entitled to transportation.
First, I must address the scope of the record. 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 the replies in both appeals, 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.
The appeals 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 that no longer exists due to the passage of time or a change in circumstances (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; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 ). Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).
The transportation requests at issue in these appeals are for the 2021-2022 and 2022-2023 school years, which have passed. Moreover, petitioner received the relief she sought in the second appeal as her request for interim relief was granted on May 6, 2022, several months prior to the start of the 2022-2023 school year. Therefore, no live controversy remains, and the appeals must be dismissed.
For the benefit of the parties, I note that the second appeal would have been dismissed on the merits. Pursuant to Education Law § 3635 (1), a school district must provide transportation to children who reside within the district and attend nonpublic schools, provided that the distance between the child’s home and his or her nonpublic school is within the statutorily prescribed limits (Education Law § 3635  [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of S.T., 48 id. 389, Decision No. 15,894; Appeal of Hughes, 48 id. 299, Decision No. 15,865). Specifically, a board must provide transportation for all children attending kindergarten through grade 8 whose home and school are between 2 and 15 miles apart, as well as all children attending grades 9 through 12 whose home and school are between 3 and 15 miles apart (Education Law § 3635  [a]). A school district may provide transportation for a lesser or greater distance only upon approval by the voters of the district (Education Law § 3635  [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Bittlingmaier, 45 id. 213, Decision No. 15,305; Appeal of Heffernan, 43 id. 447, Decision No. 15,046).
A school district has broad discretion to select the points from which to measure distances to determine eligibility for transportation (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829). A district may measure transportation distances from any part of a child’s school or residence, so long as it does so fairly and consistently (Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of Welch, 48 id. 176, Decision No. 15,829; Appeal of Flemming, 43 id. 391, Decision No. 15,028). Prior Commissioner’s decisions have upheld measurements made from a variety of reference points, such as a corner of a school property (Appeal of Canossa, et al., 37 Ed Dept Rep 456, Decision No. 13,904); a side entrance of a school (Appeal of Mermelstein, et al., 30 Ed Dept Rep 119, Decision No. 12,406); the point at which a child first comes into contact with his or her school grounds (Appeal of Pavony, et al., 27 Ed Dept Rep 295, Decision No. 11,951); an entrance gate to school grounds (Matter of Feldblum, 4 Ed Dept Rep 156, Decision No. 7,499); and the mid-point of a school (Matters of Silbert, et al. and Fitzpatrick, 1 Ed Dept Rep 283, Decision No. 6,607). A district may measure distances from multiple entrances, provided that it has adopted a uniform policy (Appeal of Mogel, 41 Ed Dept Rep 127, Decision No. 14,636; Matters of Silbert, et al., 1 id. 283, Decision No. 6,607).
A board of education need not expend an unreasonable amount of time, effort, or money measuring distances to determine eligibility for transportation (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). The Commissioner has held that a district may use an automobile odometer to measure distances and determine eligibility (Appeal of Chaim and Mintz, 57 Ed Dept Rep, Decision No. 17,257; Appeal of Schlick, 40 id. 207, Decision No. 14,462; Appeal of Adamitis, 38 id. 765, Decision No. 14,137).
The Commissioner 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 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).
The record demonstrates that the distance between petitioner’s home and LaSalle is very close to 15 miles. In support of her petitions, petitioner submitted video evidence that the distance between her home and LaSalle, calculated using a calibrated odometer, was less than 15 miles. Petitioner also submitted information from several different websites and mileage software in support of her argument that the distance between her home and LaSalle was less than 15 miles. Respondent initially offered several different calculations for the mileage between petitioner’s home and LaSalle that relied upon a combination of odometer readings from different vehicles and transportation software. Based on this evidence, I found petitioner’s evidence more persuasive and granted her request for interim relief.
Ultimately, however, respondents have submitted sufficient evidence to support their determination. The superintendent and the district’s transportation supervisor aver that the district has, for at least a decade, consistently measured distances from driveway to driveway using a calibrated odometer in a district vehicle. Using that method, the transportation supervisor recently calculated the distance between petitioner’s home and LaSalle as 15.3 miles as of May 31, 2022. Given respondents’ consistent practice of measuring transportation distances and their broad discretion to select the points from which to measure distances to determine eligibility for transportation, respondents have demonstrated the rationality of their determination that the distance between petitioner’s home and LaSalle is greater than 15 miles (Appeal of M.P., 59 Ed Dep Rep, Decision No. 17,848; Appeal of Radano, 59 id., Decision No. 17,745).
In light of the above disposition, I need not address the parties’ remaining contentions.
THE APPEALS ARE DISMISSED.
END OF FILE
 Petitioner challenges respondents’ determination that the student repeat grade six but seeks no relief in connection therewith. 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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899). In any event, this issue would only be relevant to the reasonableness of petitioner’s late transportation request, which is unnecessary to address given the disposition of this appeal.
 I decline to accept respondents’ additional affidavits and exhibits submitted on August 24, 2022 and petitioner’s response thereto into the record.
 While it appears that respondents utilized different measurement tools to address petitioner’s concerns, districts should ensure that they utilize a standard procedure for measuring distance (see Appeal of Ruggiero, 59 Ed Dept Rep, Decision No. 17,837).
 The installation of a traffic circle during the pendency of the first appeal appears to have increased the distance between the locations from 15.2 to 15.3 miles.