On appeal from a final decision of the State Board of Education.
Before Judges Shebell, Long and Landau.
[274 NJSuper Page 212] The opinion of the court was delivered by
This is an appeal from a determination of the State Board of Education which affirmed a decision of the Commissioner of Education that a walkway, denominated the "Smith Lane extension walkway," was appropriately used by respondent, Board of Education of the Township of Wayne (Board), in determining whether certain pupils were eligible for mandatory free pupil transportation. See N.J.S.A. 18A:39-1; N.J.A.C. 6:21-1.3.*fn1 Appellants are the parents of pupils affected by the decision. They claim that the Smith Lane extension walkway is a private road which may not be used for purposes of measuring remoteness for pupil transportation. We have carefully reviewed this record in light of this contention and have concluded that our intervention is warranted. We reverse.
Appellants are the parents of school age children who reside in Wayne Township. Prior to 1988, students who resided in their neighborhood attended George Washington Middle School which was approximately four tenths of a mile from each of their homes. In 1988, under a new policy, these students were reassigned to the Schuyler-Colfax Middle School. Representations were made to the families of these children that they would be bused to the new school, and in 1988 and 1989, they were bused. However, on August 31, 1990, Erik Ernst, Business Administrator of the school district, sent a letter to each of the parents advising them of a determination of their entitlement to transportation. The letter stated that an error had been made
resulting in the issuance of a bus pass to your child, this error has been verified through actual walking of the area with a certified measurement wheel. The
distance from your residence to your child's school is under two miles. Therefore, your child is ineligible for transportation. We apologize for any inconvenience this may cause you, however, we are required to apply the State's definition of remote equitably to all Township residents.
This error occurred because the locator code corresponding to these people's homes was put into the computer incorrectly and therefore reflected that these homes were a half mile from their actual location. In addition, in determining that the children lived less than two miles from Schuyler-Colfax Middle School, the Board used the Smith Lane extension walkway in its measurement.
The Board then filed a petition for declaratory judgment with the Commissioner of Education concerning the application of N.J.S.A. 18A:39-1 and N.J.A.C. 6:21-1.3 to the question of whether the Smith Lane extension walkway constitutes a public walkway for remoteness purposes in connection with pupil transportation. The Board's request for a declaratory judgment was based upon the following provision of N.J.S.A. 18A:39-1:
whenever in any district there are pupils residing remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such pupils to and from school, including the transportation of school pupils to and from school other than a public school, except such school as is operated for profit in whole or in part.*fn2
"Remote" is defined in N.J.A.C. 6:21-1.3 as follows:
(a) The words "remote from the schoolhouse" shall mean beyond 2 1/2 miles for high school pupils (grades 9 through 12) and beyond two miles for elementary pupils (grades kindergarten through eight), except for educationally handicapped pupils.
(b) For the purpose of determining remoteness in connection with pupil transportation, measurement shall be made by the shortest route along public roadways or public walkways from the entrance of the pupil's residence nearest such public roadway or public walkway to the nearest public entrance of the assigned school.
If the Smith Lane extension walkway constituted a public walkway, then the Board was entitled to include it when determining the shortest route between the children's homes and the Schuyler-Colfax Middle School. If the Smith Lane extension walkway could not be used for the purpose of measuring remoteness, then the route would have been more than two miles and the Board would have been required to provide transportation for approximately eighty-nine affected students.
A hearing on the matter was held on September 20, 1991 before an administrative law Judge (ALJ) to whom the case had been referred. At the hearing, Gary Peatick, the Transportation Supervisor of the Wayne School District, testified. It was his responsibility to determine remoteness for transportation purposes. Peatick located Smith Lane on the official map of the Township, and noted that the walkway portion of Smith Lane is not identified on the map. He stated that the subject walkway begins at the driveway of Theunis Day School and extends along a baseball field to Smith Lane. Peatick described the walkway as:
approximately five to six feet wide, paved. There's foliage on both sides of the walkway. As you walk up the walkway, on your left, there's a fence leading to the back yards [of residences], on the right, there's the Theunis Day Baseball Field. The walkway is sloped, it's up a hill. And partially up the walkway, you encounter the night security lighting system for the Theunis Day School.
According to Peatick, the path is approximately 500 feet long.
Peatick testified that the Township of Wayne is responsible for maintenance of the walkway, which includes paving and snow and ice removal. Peatick has never received a complaint relating to snow and ice on the walkway.
In Peatick's opinion, the Smith Lane extension walkway is a safe walkway. It has no breaks in it, no potholes, is not littered with debris, and the slope is not too steep. Approximately eighty students use the walkway to get from their homes to school and other children use it for recreational purposes such as coming and going to friends' houses. There is a dusk to dawn lighting system at the Theunis Day School which illuminates the walkway, and that lighting system is the responsibility of the Board to maintain.
Peatick stated that students generally can be seen when they are on the walkway by a traffic guard on Jackson Avenue. There is a wooded area that is secluded from public view, but it measures only forty to fifty feet. Peatick has never seen bottles on the walkway, but he has seen soda cans. He has never seen teenagers using the walkway to drink alcoholic beverages, but believes that people "hang out" there sometimes.
On cross-examination, Peatick acknowledged that he received a written communication from the Township of Wayne that the Smith Lane extension walkway was not designated a public right-of-way. He stated that Smith Lane, as it extends off Whipple Street, is identified as a public roadway on the map but that the remainder of Smith Lane, past Whipple Street, is a private road. Peatick estimated that approximately 150 feet is private road. There is a "local traffic only" sign on Smith Lane. The sign, posted by the Township, is there, in Peatick's opinion, to limit traffic because Smith Lane is ...