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Decision No. 13,829

Appeal of CHARLES HILSMANN, on behalf of JAIME LYNN HILSMANN and KERRY HILSMANN, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 13,829

(September 2, 1997)

McCarl & Harris, Esqs., attorneys for petitioner, James R. McCarl, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's determination that his daughters, Jaime Lynn Hilsmann and Kerry Hilsmann, are not residents of the Pine Bush Central School District. The appeal must be dismissed.

Petitioner and his daughters reside on a lot on Seaman Road, in the Town of Walkill, Orange County. Petitioner's children have been registered at and attending the schools of the Pine Bush Central School District since 1983. Petitioner's oldest daughter, Kristine, graduated from the Pine Bush High School in June 1995. At the time this appeal was brought, Jaime Lynn was a sophomore and Kerry was in the eighth grade. On February 3, 1997, petitioner, at the request of the officer designated by respondent to hear and determine residency determinations, attended a residency hearing held pursuant to "100.2(y) of the Commissioner's Regulations. By letter dated February 3, 1997, the residency officer informed petitioner of his determination that petitioner and his daughters are not residents of the school district. The officer informed petitioner that his daughters could attend school within the district until February 7, 1997 and an extension was subsequently granted until February 21, 1997. Petitioner commenced this appeal and requested that I grant interim relief directing respondent to admit his daughters to the district's schools pending a final determination of his appeal. By letter dated March 7, 1997, I granted a stay and directed respondent to admit the students pending an ultimate determination of the appeal. The stay order also provided that respondent would not be precluded from seeking tuition in the event that the final decision provides that the students are not entitled to attend respondent's schools tuition free.

Petitioner alleges that "in the late 1960's" the residents of Seaman Road were given an opportunity to vote on which school district they wanted their children to attend. Petitioner alleges that the residents of certain specified lots on what he describes as the "upper portion" of Seaman Road voted to remain in the Pine Bush Central School District and the residents of certain specified lots on the "lower portion" of Seaman Road voted to register their children in the Enlarged City School District of the City of Middletown. Petitioner further alleges that the Pine Bush Central School District ("Pine Bush") and the Enlarged City School District of the City of Middletown ("Middletown") agreed that the children who resided on the upper portion of Seaman Road would attend Pine Bush schools and the children who resided on the lower portion of Seaman Road would attend Middletown schools. Petitioner contends that this alleged agreement is manifested in the school bus transportation routes of the two school districts. Petitioner also alleges that the previous owner of the property petitioner currently resides on informed him that his children would attend Pine Bush schools as did her children. In addition, petitioner alleges that he received a letter in March 1982 from the Pine Bush school district welcoming his daughter Kristine to the kindergarten class; that upon receipt of the letter he confirmed with the then superintendent that his children would in fact be attending the Pine Bush schools; and that similar letters were received for Jaime Lynn and Kerry.

Respondent denies knowledge of any vote or agreement as alleged by petitioner. Respondent contends that petitioner resides on property located in the Middletown city school district; that petitioner pays school taxes to the Middletown district and not to the Pine Bush district; that petitioner has provided no material evidence in support of his position; and that the evidence presented indicates that petitioner's children were mistakenly enrolled in the Pine Bush school district. Respondent requests that the petition be dismissed and that I find petitioner responsible for the payment of tuition for the period beginning February 6, 1997, when petitioner was notified of respondent's determination that they are not residents of the district.

Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id.56; Appeal of Curtin, 27 id. 446.

The record before me supports respondent's determination that petitioner and his daughters do not reside in respondent's district and therefore are not entitled to attend respondent's schools tuition-free. A certified copy of Orange County Tax Map Sheet Number Five indicates that respondent's residence is located within the Middletown City School District. Furthermore, petitioner acknowledges that he pays school taxes to the Middletown City School District.

There is nothing in the record, beyond petitioner's speculation, which establishes that the Pine Bush school district and the Middletown Central School District entered into the agreement, as alleged by petitioner, to allow those living on the upper portion of Seaman Road to attend respondent’s schools. Respondent has denied any knowledge of such agreement. Furthermore, respondent has provided affidavits and exhibits in response to a directive issued by my Office of Counsel pursuant to 8 NYCRR 276.5, to ". . . produce the current policy, and any prior policy, of the Pine Bush Central School District concerning the admission of nonresidents students for the period 1960 to the present . " This documentation indicates that the lot upon which petitioner resides was formerly part of the Mount Johnson Common School District, otherwise known as "Walkill #13", and became part of the Middletown City School District following elections held by the respective school districts in the early 1960s. In addition, the documentation indicates that respondent does not accept non-resident students, with or without the payment of tuition, and that in the past, when respondent did accept non-resident students, it did so on a tuition paying basis. There is nothing in the documentation which relates to the agreement alleged by petitioner.

The facts raised by petitioner as indicative of the alleged agreement - the bus routes of the respective school districts and the history of attendance at respondent’s schools by his children and the children of the family who previously resided at petitioner’s residence, are equally consistent with respondent’s contention that the present attendance arrangement is merely a mistake. A mistake by a school district in allowing non-resident students to attend its schools on a tuition-free basis does not vest any right in such students to continue to attend on a tuition-free basis (Appeal of Marston, 34 Ed Dept Rep 105). It must also be noted that the mere fact that petitioner’s children may have some difficulty in adjusting to a new school is not a sufficient basis to overturn respondent’s determination not to allow their continued attendance at its schools (Ibid).

In an appeal to the Commissioner, petitioner bears the burden of proving that he is entitled to the relief requested (Appeal of Goodman, 35 Ed Dept Rep 93). Upon the record before me, I find that petitioner has not carried that burden

Accordingly, because petitioner has failed to establish that his daughters are residents of respondent's district I find that they are not entitled to attend the district's schools on a tuition fee basis after February 21, 1997.

THE APPEAL IS DISMISSED.

END OF FILE