MILLS, Commissioner.--Petitioners appeal a determination of the Board of Education of the Whitesboro Central School District ("respondent") that, because they are not residents of its school district, their children may not attend the public schools of the district tuition-free. The appeal must be sustained.

Petitioners contend that they reside with their children in a four bedroom apartment at 6305 State Route 291, above the Marcy Tavern in Marcy, within the Whitesboro Central School District. Petitioners assert that they reside at said Marcy address approximately 90% of the time and frequently spend weekends at their prior residence located within the Frankfort-Schuyler Central School District at Dutch Hill Road in the Town of Frankfort. Petitioners’ children transferred from the Frankfort-Schuyler Central School District in September 1999 and attended respondent’s schools during the 1999-2000 school year. Petitioners contend that since they purchased their three properties in the Town of Marcy in December 1998, Richard Noti, a career restaurateur, has worked full-time at the Marcy Tavern and has managed the restaurant-tavern and the adjacent apartments. In a letter dated June 9, 2000, the district’s assistant superintendent notified petitioners that they were not district residents and that their children would not be permitted to continue attending district schools as of September 2000. By letter dated June 14, 2000, Lillian Noti responded, describing petitioners’ living situation, offering to allow district officials to visit their apartment in Marcy, and advising respondent of her intention to attend its June 20, 2000 meeting to answer any questions.

In a letter dated July 5, 2000 respondent’s superintendent informed petitioners that respondent had denied their request for reconsideration of the earlier determination that they were not district residents.

Petitioners commenced this appeal on August 13, 2000. As part of their appeal, petitioners requested an interim order pursuant to 8 NYCRR "276.2 directing respondent to permit their children to continue to attend school in its district pending a final determination on the merits. An interim order was issued on August 22, 2000.

Petitioners contend that they reside with their children at 6305 State Route 291 within respondent’s school district and seek a determination that their children may continue to attend school there without the payment of tuition. Petitioners further argue that respondent failed to comply with the procedures set forth in Section 100.2(y) of the Commissioner’s Regulations.

Respondent acknowledges that petitioners submitted a utility bill for the Marcy address but contends that petitioners reside at their Dutch Hill Road property, for which they were granted a STAR property tax exemption, as their primary residence. Respondent also contends that it observed Lillian Noti, on more than one occasion, drive from 456 Dutch Hill Road in the early morning with three children, drop one off at Whitesboro Middle School, and wait at the Marcy Tavern with the other two children to be picked up by a district school bus. Respondent contends that her vehicle registration lists 456 Dutch Hill Road as her address and that spot checks showed her vehicle was not parked at the Marcy Tavern in the evening and early morning hours.

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

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

In support of their position, petitioners explain that they applied for the one-time STAR exemption in 1998 when they resided at Dutch Hill Road, but no longer will be receiving that exemption since they have changed residences. Respondent submits no documentation to support its determination and refers entirely on the STAR exemption and surveillance conducted by an individual who provided no affidavit or report specifying any dates, times or details of his observations.

After carefully reviewing the evidence presented by the parties, I find that the record does not support respondent’s determination.

Respondent places great weight on its surveillance. However, petitioners’ explanation that they sometimes spend weekends at the Dutch Hill Road address sufficiently explains the observations and is not inconsistent with their claim of residency in respondent’s district. Moreover, they have asserted their intent to remain in respondent’s district, supported by their purchase of several properties in Marcy and Richard Noti’s full-time management of them.

In sum, I find respondent’s evidence insufficient to support its determination. Respondent’s determination is largely based upon the results of the undocumented surveillance it conducted, which lacks specificity. Petitioners provided respondent with a utility bill for the Marcy property as evidence of their residence and a reasonable explanation for the days in which Lillian Noti drove her children to school from the Dutch Hill Road address. Therefore, I find that the record does not support respondent’s decision to deny petitioners’ children admission to its schools. Accordingly, it must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the Whitesboro Central School District admit petitioners’ children to the schools of the district without the payment of tuition.

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