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Decision No. 14,591

Appeal of JAMES and MARYBETH O'HERRON, on behalf of MICHAEL, JESSICA and TIMOTHY O'HERRON, from action of the Board of Education of the Marlboro Central School District regarding residency.

Decision No. 14,591

(July 9, 2001)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the determination of the Board of Education of the Marlboro Central School District ("respondent") that their children are not district residents. The appeal must be dismissed.

Petitioners own two houses. One is a two-family house located at 16 Blossom Lane, Newburgh ("Blossom Lane") within respondent's district ("Marlboro") and the other is a single-family house located at 77 Frozen Ridge Road, Newburgh ("Frozen Ridge"), which is within the City School District of the City of Newburgh ("Newburgh"). Petitioners' three children attended respondent's schools for a number of years, using the Blossom Lane address. During the 1999-2000 school year, respondent received information from an unidentified source indicating that petitioners actually resided at the Frozen Ridge address. Respondent notified petitioners that their residency was in question and scheduled a residency hearing for April 7, 2000. Petitioners did not appear at that hearing and respondent decided in their absence that they were not district residents. Petitioners requested a new hearing, which was held on April 18, 2000. Petitioners appeared at that hearing, but respondent again decided that they were not district residents. Petitioners unsuccessfully appealed that determination in a prior appeal to the Commissioner of Education (Appeal of O'Herron, 40 Ed Dept Rep __, Decision No. 14,461, dated September 12, 2000).

After receiving the decision in that appeal, petitioners informed respondent that they had additional information to submit as evidence of residency in the district. A hearing was held on September 29, 2000 and respondent again decided that petitioners were not district residents. This appeal ensued and petitioners' request for interim relief was denied on October 10, 2000.

Petitioners continue to assert that Blossom Lane is their residence. Respondent contends that petitioners have changed their address on certain documents in response to questions raised at the residency hearings and the decision in the prior appeal. Respondent contends that the additional documents do not establish that petitioners live within the district. Respondent also contends that the appeal should be dismissed because petitioners have now enrolled their children in Newburgh.

Initially, I must address several procedural matters. Approximately one week after filing this appeal, petitioners attempted to appeal the Commissioner's decision dated September 12, 2000, by submitting a one-page document that continued the arguments raised in their first appeal. Although their intentions are unclear, it appears that petitioners sought to reopen their first appeal (8 NYCRR "276.8). However, petitioners failed to serve respondent with the document as required by "276.8 of the Commissioner's regulations. Therefore, I will not reopen the first appeal or consider arguments or information contained in the document as part of this appeal.

Petitioners also sent a letter objecting to respondent's memorandum of law and making additional arguments. Petitioners failed to make a proper application to submit this additional document and failed to serve respondent with a copy of that document as required by "276.5 of the Commissioner's regulations. Therefore, I have not considered it in making my determination.

In addition, petitioners attempted to buttress their claim by adding arguments and exhibits to their reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been part of the petition (Appeal of Denise W., 40 Ed Dept Rep __, Decision No. 14,538; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioners' reply, I have not considered the additional arguments and exhibits.

Turning to the merits of the appeal, 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 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).

For purposes of Education Law "3202, a person can have only one legal residence (Appeal of LaQuerre, 40 Ed Dept Rep ___, Decision No. 14,558; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Simple ownership of property in a school district does not, in and of itself, confer residency status (see, e.g., Appeal of Felenczk, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

Respondent asserts, and petitioners do not deny, that petitioners stated at the April 2000 hearing that they used the Frozen Ridge address on both their Federal and State joint tax returns and that they received the STAR tax exemption on that property. At that time, both of their drivers' licenses listed the Frozen Ridge address. Also, petitioners had previously submitted the Frozen Ridge residence as the address at which to contact them in the event of an emergency. Subsequent to that hearing, petitioners obtained new drivers' licenses with the Blossom Lane address, new car registrations and changed their STAR property tax exemption from Frozen Ridge to Blossom Lane. Petitioners submitted copies of these items, and a copy of a computer printout screen indicating Mr. O'Herron's use of Blossom Lane for voter registration purposes. They also submitted copies of the deed and school property taxes for Blossom Lane.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which relief is sought (8 NYCRR "275.10; Appeal of LaQuerre, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioners have not met this burden by submitting a few newly minted documents that petitioners apparently obtained in response to concerns raised by respondent. For example, petitioners, by their own admission, applied to have their STAR tax exemption transferred to Blossom Lane at 4:00 p.m. on September 29, 2000. Respondent submits a memorandum prepared by its residency hearing officer that indicates that petitioners' residency hearing concluded at 3:40 p.m. on that date and that the hearing officer specifically asked petitioners about the STAR tax exemption.

The timing of the submission of these documents casts doubt on petitioners" assertions of residency. Moreover, noticeably absent from this appeal are other types of meaningful evidence to support petitioners" claims. For instance, if petitioners truly moved to Blossom Lane, there should be mail addressed and delivered to them at that address. State and Federal tax forms, W-2 forms and other personal documents should list that address as well. However, none of these documents have been provided. Also, there is no explanation of the status of the Frozen Ridge house or why petitioners would choose to live in a two-family house rather than their one-family home. These lingering questions suggest that petitioners do not truly reside at Blossom Lane and have merely attempted to generate enough evidence to sway respondent. Under these circumstances, I cannot find that respondent acted arbitrarily or capriciously in determining that petitioners' children are not district residents.

THE APPEAL IS DISMISSED.

END OF FILE