Decision No. 13,672

(August 30, 1996)

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Jamesville-DeWitt Central School District ("respondent") that his daughter, Bethany Kapell, is not a resident of the district. The appeal must be dismissed.

Bethany has attended school in respondent's district since kindergarten. During the 1995-96 school year, Bethany was a fourth grader at the district's Tecumseh Elementary School, using her parents' address of 401 Standish Drive, DeWitt, within the district. In September, 1995, petitioners purchased a second home at 3814 Henneberry Road, Manlius, outside respondent's district, and is in the process of rehabilitating both properties for the eventual sale of one of them. Respondent first learned of this situation when Bethany allegedly told her teacher in late December, 1995 or early January, 1996 that she had moved to Henneberry Road. By letter dated January 9, 1996, respondent's acting superintendent informed petitioner that both his son and daughter would be excluded from the district's schools as of January 23 because they were no longer district residents. On January 15, 1996, Bethany's mother, Golda Zimmerman, sent a response letter to respondent's acting superintendent stating that her son had not attended the district's schools since December, 1994, but that her daughter would continue to attend because she remained a district resident.

In a follow up effort to determine if anyone was living in petitioner's house at Standish Drive, the principal of the Tecumseh Elementary School drove by the property on January 23, 1996. She states that she observed one light on in the back of the house and a garbage can between the two garage doors but did not stop or knock on the door. She further indicates that respondent's acting superintendent also drove by the property on a separate occasion in late January, 1996. The acting superintendent allegedly made essentially the same observations as the principal during her visit to the property.

By letter dated January 29, 1996, respondent's acting superintendent asked Ms. Zimmerman to complete an affidavit form regarding residency and return it to the district by February 2, 1996. On February 1, 1996, Ms. Zimmerman submitted an affidavit that was not in the format requested by the district, stating that she spent time at both homes but remained registered to vote at the Standish residence and received mail there. Respondent's attorney responded on February 15, 1996 and February 22, 1996 that her affidavit was insufficient and again requested that she complete the affidavit form provided by the district. By letter dated February 27, Ms. Zimmerman's attorney responded that the family continued to reside part-time at the Standish home but that, "it is not the Kapell/Zimmerman family intention to have Bethany attend the Jamesville-DeWitt school district beyond the end of the 1995-96 school term." The February 27, 1996 letter further indicated that petitioner was considering enrolling his daughter in a private school in the future.

By letter dated March 8, the acting superintendent informed petitioner that his daughter was no longer a resident of the district and would be excluded from school on March 20, 1996. Because petitioner apparently did not receive this letter, the acting superintendent sent a subsequent letter dated March 21, 1996, setting the student's last day of school at April 2, 1996. On April 10, 1996, the acting superintendent drove to the Standish Drive address, observed petitioner pick up his mail and drive away, and then pulled into the driveway and found no one home when she knocked on the door. Petitioner commenced this appeal on April 8, 1996 and his request for interim relief pending a determination on the merits was granted on April 17, 1996.

Petitioner seeks an order allowing his daughter to attend school tuition free in respondent's school district. Petitioner contends that his daughter has resided within the district for her entire life. The petition indicates that "Bethany Kapell intends to reside at her 401 Standish Drive residence until she leaves for summer camp in July 1996" and that it would be an undue hardship on her not to allow her to finish the 1995-96 school year at Tecumseh Elementary School.

Respondent contends that petitioner has submitted insufficient evidence that the family still resides in the Standish Drive residence with the intent to remain there and counterclaims that petitioner should be required to pay tuition for Bethany's attendance at the Tecumseh Elementary School for the entire 1995-96 school year, as a non-resident.

The appeal must be dismissed as moot. Residence for purposes of Education law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc. 2d 60; Appeal of Varghese, 34 Ed Dept Rep 455; Matter of Whiteman, 24 id. 337) and an intent to reside in the district (Appeal of Varghese, supra; Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). The record reflects that by petitioner's own admission, Bethany's intent to reside in the district ended in July 1996. Likewise, the hardship petitioner complained of ended with Bethany's completion of the 1995-96 school year. Since the Commissioner only decides matters in actual controversy and will not render a decision on a set of facts which no longer exists or which subsequent events have laid to rest, the appeal is moot (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Warner, 32 id. 533; Appeal of Langenmayr, 30 id. 322).

With regard to the counterclaim, I find that respondent has failed to demonstrate that petitioner and his daughter abandoned their Standish Drive home for the entire 1995-96 school year and had no intent to remain in residence there during that period. Petitioner produced voter registration forms, utility bills, tax bills, telephone bills, bank statements, an insurance coverage statement, and other mail received at the Standish Drive address. The only evidence respondent submits is the allegation that Bethany informed her teachers of the Henneberry Road home and inconclusive surveillance that consisted merely of two individuals driving by the Standish Road residence without stopping and seeing a light on, as well as a third visit when petitioner was actually observed at the residence. Based on the record before me, the evidence submitted by respondent is not adequate to support its counterclaim.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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