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Decision No. 14,010

Appeal of IRA BERLINER, on behalf of ARIA and KYLE BERLINER, from action of the Board of Education of the Harrison Central School District regarding residency.

Decision No. 14,010

(September 4, 1998)

Peter Carparelli, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner challenges a determination of the Board of Education of the Harrison Central School District ("respondent") that his children are not district residents for the purpose of attending its schools tuition-free. The appeal must be sustained.

Petitioner is the father of two children, Aria and Kyle, who attend Purchase Elementary School in respondent’s school district. In June 1994, petitioner and his wife purchased property at 3 Meadow Lane, Purchase, New York, and petitioner began residing at that address. Aria and Kyle have attended Purchase Elementary School since the 1995-96 school year, when Aria was in second grade, and Kyle was in kindergarten. Petitioner and his wife renovated the property at 3 Meadow Lane, while living there, and sold this improved property on June 21, 1996.

Prior to the June 1996 sale of 3 Meadow Lane, the property was subdivided to create a second parcel of land, known as 7 Meadow Lane, which petitioner and his wife retained. Immediately after the sale, the Berliners applied for a building permit to construct a single family home at 7 Meadow Lane. The Town of Harrison issued such a permit on July 26, 1996. The family intended to remain at 7 Meadow Lane during the construction of their new home by renting a furnished house trailer and having it installed on the property. In June 1996 petitioner leased such a trailer and obtained electric TV cable and telephone services for that location. The family then took up residence in the trailer on the 7 Meadow Lane property.

In late August 1996, the Building Department of the Town of Harrison informed petitioner that the trailer violated the town building code and petitioner had to make other living arrangements. Petitioner and his wife began looking for an apartment or other rental unit in respondent's school district but were unable to find anything suitable. On September 4, 1996 petitioner’s children began school at the Purchase Elementary School, while the family was still living in the trailer at 7 Meadow Lane. Soon thereafter, petitioner and his family found temporary housing in New Rochelle.

The construction on the new house was to have been completed in December 1996 or January 1997. On September 3, 1996 petitioner’s wife wrote to respondent's superintendent advising him of her family's temporary relocation to New Rochelle during construction. The superintendent responded on September 18, 1996, enclosing a letter from respondent’s attorney. The attorney’s letter opined that the Berliner children were not district residents. Respondent subsequently sent petitioner contracts for his children to attend the district's school on a tuition basis, which petitioner returned unsigned, on October 16, 1996. In a letter accompanying the unsigned contracts, petitioner requested a superintendent’s hearing on the issue of his children's residency.

Petitioner did not hear from the district again until March 1997. At that time the superintendent’s office called petitioner and requested a meeting with him. Petitioner met with the superintendent and brought along a number of documents including: the letter from the Building Department informing petitioner he could not live in the trailer, a copy of the contract petitioner had entered into with American Mobile Home for the rental of the furnished trailer, the bill for the cost of installation and removal of the trailer, and the cablevision bill for the trailer.

Petitioner had no further communication with the district until June 30, 1997. On that date, the superintendent sent petitioner a letter stating that based on a review by the district’s attorney and report of the district's attendance officer, it had been determined that his children did not live in the district. The letter went on to state that petitioner’s children would only be able to attend the district's schools for the 1997-98 school year if the family was residing in a home within the district or on a tuition paying basis.

The house at 7 Meadow Lane was completed in July 1997. However, the town refused to issue a Certificate of Occupancy until it resolved an issue concerning wetlands. On August 29, 1997, the principal of the elementary school advised petitioner’s wife that their children would not be admitted to the school on September 3, 1997. Petitioner and the superintendent subsequently entered into an agreement whereby petitioner agreed to pay tuition on a month to month basis, without waiving his right to assert a future claim that his children are entitled to a tuition-free education.

Petitioner received a letter from respondent’s attorney on October 9, 1997 advising him that since he did not yet have a Certificate of Occupancy for 7 Meadow Lane, he would have to pay tuition in order for his children to continue to attend respondent’s school. In response to this communication, petitioner sent a letter on October 17, 1997 asking whether or not the statements were those of respondent, or the attorney’s personal statements. In response, petitioner received a letter from the attorney on October 27, 1997, which did not clarify whether the attorney was operating as the board’s designee, nor did it advise petitioner of his right to a hearing or to an appeal. Petitioner responded to this communication by letter dated October 28, 1997 requesting a residency hearing before the board of education.

The next communication petitioner received from the district was a letter dated January 15, 1998, demanding tuition for the entire 1996-97 school year and for the first two months of the 1997-98 school year. Petitioner claims to have received this letter on February 3, 1998. This appeal ensued.

Petitioner alleges that at all times since 1994, he and his family intended to remain residents of Harrison. Specifically, he alleges that they obtained a building permit to build the new house in Harrison as soon as they sold their first Harrison home; all of the children’s social contacts are in Harrison; petitioner voted in Harrison in the 1996 and 1997 elections; the family cars are registered to the Meadow Lane address; and the phone number was the same from 1994 until the present. Petitioner alleges that it was always the family’s intent to remain residents of Harrison. He and his wife went so far as to lease a trailer to keep on the 7 Meadow Lane property during construction of their new home. Petitioner only sought other temporary housing after the building department decided that the trailer violated the town code.

Petitioner additionally asserts that he was given no credit for the property taxes he paid on the 7 Meadow Lane property towards his children’s tuition.

Furthermore, petitioner points out that on at least two occasions he requested that the district’s attorney clarify his role in the process. When he received no response, petitioner requested a hearing before the board, which he was never granted. He also claims that the first bill he ever received for the 1996-97 school year was sent in January 1998 and is too late to be considered reasonable.

Respondent contends that petitioner owns no property in the district, rather, his wife owns all of the property described by him. Respondent claims that petitioner’s wife admitted in her September 3, 1996 letter to the superintendent that the family was living in New Rochelle, not in respondent’s district. Respondent also disputes petitioner’s claim that the children were "homeless" or "forced" out of their home and unable to find housing within the district. Respondent states that the Berliners sold 3 Meadow Lane for over a million dollars and listed 7 Meadow Lane with a realtor for over four million dollars. Thus, respondent contends the Berliners should have been able to find affordable housing in the Harrison area.

Respondent’s attendance officer, Joseph Spedaliere, submitted an affidavit stating that he visited the property at 7 Meadow Lane on two occasions, February 4 and June 26, 1997. On each visit he found the home to be in varying stages of construction and no one in residence. Prior to each visit he made inquiries to town officials and found that no Certificate of Occupancy had been issued.

Respondent also asserts a number of procedural defenses to this appeal. Respondent claims that petitioner has failed to exhaust administrative remedies; that the appeal is untimely; that petitioner has no standing as he owns no property in the district; and finally that petitioner is not entitled to any credit for school taxes paid as he is not the owner of any real property within the district.

Before reaching the merits, I will address the procedural issues raised by respondent. Respondent alleges that petitioner failed to exhaust his administrative remedies. On the facts in this record, I cannot find any merit to this defense. On at least two occasions, petitioner requested clarification as to whether or not the attorney for the district was acting on the board’s behalf. This is a legitimate question since "100.2(y) of the Commissioner's regulations specifically states that the board or its designee may make residency determinations. Petitioner, however, never received a response to this threshold question. Moreover, it appears from the record that both the district's attorney and the superintendent advised petitioner in writing that his children were not district residents and would not be allowed to attend the district's schools tuition-free. Respondent does not deny that either one was its designee. Thus, respondent cannot now claim that petitioner failed to exhaust his administrative remedies, when there is no showing that the attorney or superintendent were not authorized to act for the board.

The next procedural issue raised by respondent is timeliness. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Section 100.2(y) requires that within two business days of making a residency determination, the board or its designee must give written notice of its decision to the petitioner, which notice must include the basis for the decision, the date the child will be excluded from the district school, and a notice of the right to appeal to the Commissioner within 30 days. There is no evidence in the record that any such written notice was ever provided to petitioner although both the attorney and superintendent stated that the children would be excluded unless petitioner paid tuition. Thus, although it appears that a "determination" was made in June, 1997, the mandates of "100.2(y) were not followed. Respondent's failure to comply with the procedure set forth in the regulation in this case constitutes "good cause" to excuse any late filing. Furthermore, petitioner served his petition on March 5, 1998 – within 30 days of his receipt of respondent's tuition bill. Accordingly, I will not dismiss the appeal as untimely (Appeal of Khatib, 36 Ed Dept Rep 100; Appeal of Keenan, 36 id. 6).

Respondent also contends that petitioner has no standing as he owns no property in the district. Residency is not necessarily a function of property ownership, so petitioner's ownership or lack of ownership of property within respondent's district is not determinative of standing for the purposes of this appeal. Additionally, petitioner’s wife does own property in the district, 7 Meadow Lane, where petitioner, his wife, and two children claim to reside. There is no question that petitioner has standing to bring this appeal on behalf of the children of whom he and his wife are both legal guardians.

I will now address the merits of this appeal. Education Law "3202(1) provides:

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 Petrie, 37 Ed Dept Rep 200; Appeal of Cortes, 37 id. 114; Appeal of Keenan, 36 id. 6; Appeal of Brutcher, 33 id. 56). A child’s residence is presumed to be that of his parents or legal guardians (Appeal of Kucherovsky, 37 Ed Dept Rep 241; Appeal of Simond, 36 id. 117; Appeal of Gwendolyn B., 32 id. 151; Appeal of Pinto, 30 id. 374).

For the purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of a Student with a Disability, 36 Ed Dept Rep 113; Appeal of Britton, 33 id. 198). A "residence" means "domicile" which is established by one's physical presence and the intention to remain there permanently (Appeal of Doyle-Speicher-Maldonado, 35 Ed Dept Rep 110; Appeal of Cupid, 34 id. 609). A residence is not lost, moreover, until it is abandoned and another is established through action and intent (Appeal of Britton, supra;Appeal of Edward K., 32 Ed Dept Rep 112; Appeal of Richards, 25 id. 38). Nor does a person’s temporary absence from one’s district of residence necessarily constitute establishment of a residence in the district where temporarily located or abandonment of one’s permanent residence. Accordingly, students whose families lose their permanent home due to circumstances beyond their control, who are forced to make temporary arrangements outside their district of residence and whose actions reflect an intent to return to the district, do not lose their right to attend school in the district where they previously lived (Appeal of Mountain, 35 Ed Dept Rep 382). To determine one’s intent, evidence regarding the family’s continuing ties to the community and their efforts to return are relevant (Appeal of Mountain, supra; Appeal of Kenneth R., 30 id. 297; Appeal of Tynan, 28 id. 4).

Additionally, for "a new domicile to be effected, there must be a union of residency in fact and an ‘absolute and fixed intention’ to abandon the former and make the new locality a fixed and permanent home," (Appeal of Elliott, 36 Ed Dept Rep 70, aff’d, Bd. of Educ. of the Baldwin Union Free School Dist. v. Mills, Sup. Ct., Albany Co., Special Term, October 9, 1997; citing Hosley v. Curry, 85 NY 2d 447).

Based on the record before me, I find that petitioner and his children are residents of the Harrison Central School District. Though it is true that petitioner, his wife, and children lived in New Rochelle for approximately 14 months of this time, the evidence supports their stated intention to remain residents of the Harrison district.

Specifically, petitioner and his wife built a fairly large and luxurious home in the district during 1996-97. It was estimated that this construction would take 7 to 9 months, but due to delays likely inherent in building such a structure and an unanticipated wetlands issue, the actual Certificate of Occupancy was not issued until November 1997, almost a year after the anticipated completion date. Originally, petitioner attempted to live on the property during the construction, by leasing a house trailer. Only after he had paid to lease the trailer and had it installed with appropriate utility services, did he find out the trailer violated the town's building code. Being so informed on August 29, 1996, with school beginning on September 4, petitioner and his wife were left with little time to find appropriate housing for themselves and their two children. While they eventually secured housing in New Rochelle, the record reflects that they always considered it to be temporary while their new home was under construction. Throughout the period in question, petitioner maintained his mailing address, voter registration, and telephone service in the district. At no time did he or his wife attempt to mislead respondent as to where they were temporarily living or why they were located out of district. None of petitioner’s actions indicated that he had abandoned his Harrison residence or did not intend to return with his family from their temporary lodgings outside the district as quickly as possible. It is unfortunate that the construction and issuance of the Certificate of Occupancy took longer than expected, but these obstacles do not negate petitioner’s intent to return to the district.

Accordingly, respondent’s determination that petitioner’s children were not residents of the district for the 1996-97 school year and for the first two months of the 1997-98 school year must be set aside.

In light of this disposition, I will not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Aria and Kyle Berliner to attend Harrison District schools without the payment of tuition.

END OF FILE