Matter of B.D.H. v Merrick Union Free School Dist.
Annotate this CaseDecided on March 24, 2006
Supreme Court, Nassau County
In the Matter of B.D.H. et al., as Parents of J. H., Petitioners,
against
Merrick Union Free School District, Respondent.
018050/05
Thomas P. Phelan, J.
Application by petitioners pursuant to CPLR Article 78 to annul the decision of respondent Merrick Union Free School District denying bus transportation to their son is denied.
In this Article 78 proceeding petitioners seek to review respondent School District's denial of transportation services to their son J., who became eligible to attend kindergarten in the 2005-2006 school year, at the Levy-Lakeside School located at 21 Babylon Road, Merrick, New York. Before J. entered kindergarten, petitioners had been in contact with respondent School District regarding the methodology used to measure distances for transportation after they learned, as J. approached school age, that their house was ineligible for busing because it was [*2]located less than one half mile from the school.
By letter dated July 12, 2005, petitioners were advised by respondent School District that its director of facilities had re-measured the distance from their home at 2830 Bay Drive to the entrance of the Levy-Lakeside School. Since the distance, measured at 2,598 feet, is less than the required 2,640 feet, J. was not eligible for transportation. Petitioners were advised that if they wished to appeal that decision, they might do so by writing to the New York State Commissioner of Education. Despite being advised of their right to appeal to the Commissioner, petitioners declined to do so but continued an ongoing dialogue with the School District regarding the issue.
The distance was apparently measured a total of six times over the course of several years. Respondent School District maintains that only in the final instance, using methodology not consistent with that utilized by respondent and used only as an experiment in deference to petitioner's request, did the distance (2,654 feet) meet the requirement for transportation.
Petitioners seek to annul the denial of transportation herein on the grounds that the decision is arbitrary and capricious in that respondent School District has failed to offer transportation equally to all children in like circumstances i.e., other children who live farther away, who must walk past petitioners' house to reach the bus stop. Petitioners maintain that J. could board the bus at the same bus stop at no additional cost to the School District.
In opposition to the petition respondent School District raises the doctrine of primary jurisdiction, the statute of limitations and contends that the determination at issue is neither arbitrary or capricious.
The doctrine of primary jurisdiction applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such a case, the judicial process is suspended pending referral of such issues to the administrative body for its views (Staatsburg Water Company v Staatsburg Fire District, 72 NY2d 147, 156 [1988]). The court will refrain from exercising jurisdiction over a matter where an administrative agency also has jurisdiction and a question involved in the proceeding depends upon the specialized knowledge and experience of the administrative agency. While Education Law § 310 affords a person aggrieved by a decision of a school official or school district an opportunity to appeal by petition to the Commissioner of Education, petitioners herein did not avail themselves of the opportunity, choosing instead to resort to the courts. Inasmuch as there are no questions of fact presented or other issues that require the special knowledge of the Commissioner of Education to resolve, the proceeding is properly before this court (see, Matter of Gundrum v Ambach, 55 NY2d 872, 873 [1982]).
Pursuant to CPLR 217(1) the applicable statute of limitations for an Article 78 proceeding is four months after the determination becomes final and binding or the official's refusal, on demand, to perform a duty. "An administrative determination is not 'final and binding' unless the [*3]determination is formal, explicit and unequivocal and unless petitioner receives notice of it (citations omitted)" (Nickerson v City of Jamestown, 178 AD2d 1003 [4th Dept. 1991]; see, Matter of Edmead v. McGuire, 67 NY2d 714, 716). The burden is upon the agency to demonstrate the existence of a final and binding determination, and any ambiguity created by the agency must be construed against it (Nickerson v City of Jamestown, supra).
In the court's view, this proceeding, commenced on November 14, 2005, is timely. Petitioner brought this proceeding within four months of August 9, 2005, the date on which petitioners were formally advised at a Board meeting that the Board's original determination would not be changed. Although respondent argues otherwise, the ongoing dialogue between the School District and petitioners regarding the transportation issue, as well as additional measurements of the distance between petitioners' home and the School District may clearly be viewed as ambiguous. Respondent has failed to demonstrate that they gave petitioners the required formal, unequivocal and binding determination more than four months prior to commencement of this proceeding.
Education Law § 3635(1)(a) provides in pertinent part that:
Sufficient transportation facilities * * * shall be provided by the school district for all the children residing within the school district to and from the school they legally attend, who are in need of such transportation because of the remoteness of the school to the child or for the promotion of the best interest of such children. Such transportation shall be provided for all children attending grades kindergarten through eight who live more than two miles from the school which they legally attend and for all children attending grades nine through twelve who live more than three miles from the school which they legally attend and shall be provided for each such child up to a distance of fifteen miles, the distances in each case being measured by the nearest available route from home to school. * * * Transportation for a lesser distance than two miles in the case of children attending grades kindergarten through eight or three miles in the case of children attending grades nine through twelve and for a greater distance than fifteen miles may be provided by the district, and if provided, shall be offered equally to all children in like circumstances residing in the district; provided, however, that this requirement shall not apply to transportation offered pursuant to section thirty-six hundred thirty-five of this article.
The formula provided for in the statute vis a vis the "nearest available route" has for its basis the distance the child must travel and not the distance the bus must travel. The availability of any given route means the availability to the child (Goldberg v McIntyre, 95 Misc 2d 312, 314 [NY Sup. 1977]).
While the decisions of administrative agencies, like the Department of Education, interpreting a statute are, of course, not conclusive upon a court, they are entitled to great weight (Matter of Lezette v Board of Ed., Hudson City School District, 35 NY2d 272, 281-182 [1974]; Arlyn Oaks Civic Ass'n v Brucia, 171 Misc 2d 634, 642 [NY Sup. 1997]). It is well settled that a school district has broad discretion in selecting measurement points on school property for purposes of [*4]determining eligibility for transportation (Matter of Gundrum v Ambach, supra). It may measure transportation distance from any part of the school property so long as it does so fairly and consistently (Appeal of Porzio, 42 Ed. Dept. Rep. 166, Decision No. 14,808 [2002]).
Moreover, a board of education is not required to expend an unreasonable amount of time, money or effort in measuring distances for the purpose of determining eligibility for transportation nor make such measurements with the accuracy of a professional survey (Appeal of Fleming, 43 Ed. Dept. Rep. 391, Decision No. 15, 028 [2004]). Denial of transportation due to a minimal distance shortfall is neither arbitrary nor capricious as courts have sustained the use of distance as a means of determining eligibility for transportation (Pratt v Robinson, 45 AD2d 641 [4th Dept. 1974], aff'd. 39 NY2d 554 [1976]).
The Education Commissioner's decisions have upheld measurements using a variety of reference points such as: a corner of the school property; the side, rather than the front, entrance to the school; the point at which the child first comes in contact with the school he or she attends; a point at the entrance gate to the school grounds and the mid-point of the school (Appeal of Mogel, 41 Ed. Dept. Rep. 127, Decision No. 14,636 [2001]). Both the courts and the Commissioner have held that the Legislature, in enacting Education Law §3635 intended that boards of education would be required to provide transportation solely on the basis of distance, rather than on the basis of subjective factors (Pratt v Robinson, supra; Matter of Studley v Allen, 24 AD2d 678 [3rd Dept. 1965]; Appeal of Fausel, 30 Ed. Dept. Rep. 395, Decision No. 12,509).
As noted by the court in Arlyn Oaks Civil Ass'n v Brucia, supra at p. 644, "[t]here are risks involved in transportation by bus as there are in walking on public streets or publicly maintained pathways. Under our system the responsibility for weighing these risks together with the competing interests involved in running a school system rests initially with the school administrators employed by the democratically elected school board. Those aggrieved by their determination may have recourse to the political process or to the courts. The courts, however, will upset the determination of an administrative body acting within its jurisdiction only if the action taken lacks rationality to the point where it constitutes an abuse of discretionary authority (Matter of Pell v Board of Education, 34 NY2d 222, 231 [1974])." Rationality is what is reviewed.
Applying this standard, and regardless of whether or not this court would make the same judgment, it cannot be said that the decision at issue herein lacks a rational basis (see also Lewitas v Ossining Union Free School District, 10 Misc 3d 1059(A) (Table), 2005 NY Misc. LEXIS 2779, 2005 WL 3423530).
Accordingly, the application by petitioners to annul the decision of respondent School District is denied and the proceeding is dismissed.
This decision constitutes the order of the court.
Dated: March 24, 2006 THOMAS P. PHELAN
J.S.C.
Law Office of Raymond Nardo
Attorney for Petitioners
129 Third Street
Mineola, NY 11501
Cooper, Sapir & Cohen, P.C.
Attorneys for Respondent
560 Broadhollow Road, Suite 210
Melville, NY 11747
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