Opinion
July 6, 1967
Appeal in an article 78 proceeding from a judgment of Special Term, Albany County, which dismissed on the merits a petition to review and annul a determination of Acting Commissioner of Education which set aside and vacated an order of the District Superintendent of Schools. On June 9, 1966, the Acting Commissioner of Education of the State of New York issued an order which vacated an order of the District Superintendent of Schools of the Town of Hempstead, which had redescribed a portion of the boundary line between Union Free School District No. 11 and Union Free School District No. 31, both in the Town of Hempstead. These two school districts were created in 1927 with District No. 11 being north of a tidewater channel, alternately known as Hog Island Channel or Barnum Island Channel, and District No. 31 being south of the channel. The disputed boundary was established in 1927 by the following description: "BEGINNING at the point on the southerly boundary of Island Park where the concrete highway-bridge over Wreck Lead or Reynolds Channel to Long Beach intersects the southerly high water mark of Island Park and thence easterly along the mean high water mark to Wreck Lead Channel to Garrett Lead; thence northeasterly, northerly and northwesterly along the westerly high water mark at Garrett Lead to Hog Island Channel; thence northwesterly, westerly and southwesterly along the mean high water mark on Hog Island Channel into Simon Hassock Creek and thence southerly along the easterly mean high water mark of Simon Hassock Creek to Wreck Lead Channel and thence easterly along the mean high water mark of Wreck Lead Channel to the high water mark at the concrete bridge to Long Beach, the point or place of beginning. (It is the intent of the above described area to include what was formerly Barnum Island including Garrett Marsh and Anderson Island)." The redescribed boundary in the order of the Superintendent of Schools defined the boundary line at a position which represented the mean high water mark as of 1907, which order was purportedly based on the authority provided by subdivision 1 of section 2215 Educ. of the Education Law which describes the duty and power of the Superintendent of Schools as follows: "1. To inquire from time to time into and ascertain whether the boundaries of the school districts within his supervisory district are definitely and plainly described in the records of the office of the proper town clerk; to cause to be made and filed in the education department a record of such boundaries; and in case the record of the boundaries of any school district shall be found indefinite or defective, or if the same shall be in dispute, then to cause the same to be amended or an amended record of the boundaries to be made and filed in the office of the proper town clerk and in the education department." In 1953 Anderson Island was sold by the Town of Hempstead to the Long Island Lighting Company which thereafter constructed a power plant thereon. The main issue involved is which school district contains the property owned by the Long Island Lighting Company and has the right to assess it for school tax purposes. Anderson Island, at the time of its purchase by the Long Island Lighting Company, was partially bounded on the north by Hog Island Channel or Barnum Island Channel. Prior to the purchase, certain changes in the channel boundary lines had taken place by accretion which resulted in the shifting of the mean high water mark. These changes resulted in an addition of land area to Anderson Island which, in 1927, was wholly within District No. 31. Part of the property purchased by the Long Island Lighting Company consisted of such additional land which had been formerly covered by the water of the channel. The new boundary line established by metes and bounds by the Superintendent of Schools was based on the high water mark as it was accepted and fixed as of the date of the creation of the two new districts in 1927. Subdivision 1 of section 2215 Educ. of the Education Law grants to the Superintendent of Schools the authority to amend the record of school district boundaries in cases where the record of the boundary of any school district is indefinite, defective or in dispute. The act of the Superintendent of Schools in defining the boundary line resulted in the alteration of a school district boundary rather than a correction of the record which could only be accomplished under the procedure as outlined in sections 1507, 1508 and 1509 of the Education Law. The authority of the Superintendent of Schools, under section 2215, was limited to correcting the record description of the boundary line if such record was indefinite, defective or in dispute, and he had no authority to change the boundary line by arbitrarily fixing it at the high water mark as it existed in 1907. The order of the Superintendent of Schools did not redefine the boundary line, but rather changed and altered it and was, therefore, unauthorized as well as being a misinterpretation of the actual situation. The mean high water mark on Anderson Island determined a portion of the northerly boundary line of District No. 31. Such a boundary line could not be permanent, but was subject to erosion and accretion accordingly as the line of the flow of the tide advanced or receded. The determination of the boundary line, as forever fixed by the chart on the date the districts were created in 1927, ignores the changes and variations to which such waters were necessarily subject. "When land bordering a body of water is increased by accretion, that is to say, by such a slow and gradual deposit of particles that its progress cannot be always measured even though its results may be discerned from time to time, the new land thus formed belongs to the owner of the upland to which it attaches." ( Matter of City of Buffalo, 206 N.Y., 319, 325.) "It is established that variable governmental boundaries, running along tidal waters, are affected by the rules of avulsion, erosion and accretion." ( Lawkins v. City of New York, 272 App. Div. 920, 921.) In the formation of Districts No. 11 and No. 31 in 1927, it was the clear intent that the channel should divide the two districts and that Anderson Island, which was south of the channel, should be in District No. 31 and the land north of the channel in District No. 11. The finding of the Acting Commissioner of Education that the land in question was, in fact, formed by accretion and not artificially filled in, and accordingly became part of District No. 31, is supported by the record. The appellant further contends that when the Acting Commissioner of Education held that legally there was no boundary dispute to be resolved by the District Superintendent, who therefore had no jurisdiction to pass upon the boundary question, the Acting Commissioner could not, nevertheless, redefine the boundary on his own initiative. The Acting Commissioner determined that the District Superintendent was without authority to act because the record of the boundary was not indefinite, defective or legally in dispute (Education Law, § 2215, subd. 1), and further that the boundary, though shifting with accretion or erosion, was always identifiable and susceptible of location and hence not indefinite, defective or a subject of legal dispute. The Acting Commissioner quite properly proceeded pursuant to the right of review conferred by statute and, inasmuch as it cannot reasonably be said that his decision was purely arbitrary ( Matter of Ross v. Wilson, 308 N.Y. 605, 617), it must be affirmed. Judgment affirmed, without costs. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, Jr., J.