Parts of the fencing seen at North Side School in East...

Parts of the fencing seen at North Side School in East Williston on Thursday. Efforts by the school district to build the fence began in 2019 but have been delayed. Credit: Newsday / J. Conrad Williams Jr.

The East Williston school district has tried to build a fence at its elementary school since 2019 — and this week, the effort may have gotten new life from the latest development in a five-year fight that could have implications elsewhere. 

The state Appellate Division, Second Judicial Department on Wednesday overturned a lower court decision that years ago halted the fence's construction. The appellate court reversed a ruling Nassau County Supreme Court Justice Sharon Gianelli made in siding with a group of residents who argued that the district can't build the fence without a permit from the Village of East Williston.

In Wednesday's decision, the judges called the 2019 ruling “premature” and said the state Education Department should have been summoned in a lawsuit that could affect its authority to regulate.

“SED and the Commissioner are necessary parties because the Supreme Court’s determination would necessarily determine their rights to set school safety standards and approve plans for school construction,” the judges wrote.

The latest ruling sent the case back to the lower court to reexamine the question of whether the state has exclusive jurisdiction over construction projects on school properties.

Jay Worona, deputy executive director of the New York State School Boards Association, who submitted a brief in 2020 on behalf of districts across the state, said Thursday the case carries significance beyond East Williston.

“It is important for school districts all over the state to have an answer to this seminal question, which is when you're doing a building project, do you have two masters, they being the state Education Department and your local municipality, or you just have one?” Worona said.

“We tend to believe that the answer is the state Education Department,” he said.

That department’s press office did not respond to a request for comment. John Sheahan, an attorney with Guercio & Guercio representing the district, said Thursday the litigation is continuing and declined additional comment.

Matthew Cuomo, a Mineola-based attorney representing a group of residents who sued the district, said Thursday: “The case is in litigation, and we will handle it in the court.”

Discussions about a fence began in late 2017 and the district began building the 6-foot-tall structure around three sides of North Side School, a K-4 school serving more than 500 students, in summer 2019.

Construction stopped after a group of residents sued, alleging the district’s failure to seek local zoning approval deprived them of their “rightful participation” in village governance.

To obtain a permit for the fence, which would be 2 feet taller than village code allows, the district would have been required to seek a variance from the village’s Board of Zoning Appeals.

The district said it didn’t need to apply for a village permit because the permit it had received from the state was enough.

The plaintiffs disagreed, citing two letters from the state Education Department. In one, a department official wrote that the department’s approval is “separate and distinct from any local zoning approval which may still be required.”

After the district appealed the Supreme Court decision, Cuomo wrote in court filings in 2021 that Gianelli’s ruling “correctly determined that existing law does not absolutely immunize school districts from local zoning consideration.”

While the general rule may be that educational uses are shielded from local ordinances, Cuomo argued that local zoning applies when there is no conflicting or superseding state regulation, and in this particular case, concerning a fence. Preemption doesn't occur in this case, he argued, as the state regulations do not address perimeter fencing, which he said is “an accessorial use.” 

District officials have said the fence would be a security measure to keep unauthorized adults off school grounds and prevent students from running out into the street.

The East Williston school district has tried to build a fence at its elementary school since 2019 — and this week, the effort may have gotten new life from the latest development in a five-year fight that could have implications elsewhere. 

The state Appellate Division, Second Judicial Department on Wednesday overturned a lower court decision that years ago halted the fence's construction. The appellate court reversed a ruling Nassau County Supreme Court Justice Sharon Gianelli made in siding with a group of residents who argued that the district can't build the fence without a permit from the Village of East Williston.

In Wednesday's decision, the judges called the 2019 ruling “premature” and said the state Education Department should have been summoned in a lawsuit that could affect its authority to regulate.

“SED and the Commissioner are necessary parties because the Supreme Court’s determination would necessarily determine their rights to set school safety standards and approve plans for school construction,” the judges wrote.

The latest ruling sent the case back to the lower court to reexamine the question of whether the state has exclusive jurisdiction over construction projects on school properties.

Jay Worona, deputy executive director of the New York State School Boards Association, who submitted a brief in 2020 on behalf of districts across the state, said Thursday the case carries significance beyond East Williston.

“It is important for school districts all over the state to have an answer to this seminal question, which is when you're doing a building project, do you have two masters, they being the state Education Department and your local municipality, or you just have one?” Worona said.

“We tend to believe that the answer is the state Education Department,” he said.

That department’s press office did not respond to a request for comment. John Sheahan, an attorney with Guercio & Guercio representing the district, said Thursday the litigation is continuing and declined additional comment.

Matthew Cuomo, a Mineola-based attorney representing a group of residents who sued the district, said Thursday: “The case is in litigation, and we will handle it in the court.”

Discussions about a fence began in late 2017 and the district began building the 6-foot-tall structure around three sides of North Side School, a K-4 school serving more than 500 students, in summer 2019.

Construction stopped after a group of residents sued, alleging the district’s failure to seek local zoning approval deprived them of their “rightful participation” in village governance.

To obtain a permit for the fence, which would be 2 feet taller than village code allows, the district would have been required to seek a variance from the village’s Board of Zoning Appeals.

The district said it didn’t need to apply for a village permit because the permit it had received from the state was enough.

The plaintiffs disagreed, citing two letters from the state Education Department. In one, a department official wrote that the department’s approval is “separate and distinct from any local zoning approval which may still be required.”

After the district appealed the Supreme Court decision, Cuomo wrote in court filings in 2021 that Gianelli’s ruling “correctly determined that existing law does not absolutely immunize school districts from local zoning consideration.”

While the general rule may be that educational uses are shielded from local ordinances, Cuomo argued that local zoning applies when there is no conflicting or superseding state regulation, and in this particular case, concerning a fence. Preemption doesn't occur in this case, he argued, as the state regulations do not address perimeter fencing, which he said is “an accessorial use.” 

District officials have said the fence would be a security measure to keep unauthorized adults off school grounds and prevent students from running out into the street.

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