Appeal of CYNTHIA LOCKWOOD, on behalf of her son ROBERT JOHNSON, from action of the Board of Education of the Cleveland Hill Union Free School District regarding residency.

Decision No. 14,763

(July 24, 2002)

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Cleveland Hill Union Free School District ("respondent") that her son, Robert, is not a district resident. The appeal must be dismissed.

Petitioner"s son has attended respondent"s schools since September 2001, and was in the eleventh grade at the time of this appeal. Petitioner owns a home outside respondent"s district at 222 Roslyn Street in Buffalo and holds a one-year lease, from September 1, 2001 to August 2002, on a two-bedroom apartment at 28A Glenwood Court in Cheektowaga, within respondent"s district. Petitioner entered into the lease in anticipation of selling her 222 Roslyn Street residence and purchasing a home at 1825 Kensington Avenue in Cheektowaga, within respondent"s district.

In early September 2001 respondent received a report from a school crossing guard that children were observed being dropped off from a vehicle in front of a cemetery located near district property and walking through the cemetery toward the district"s schools. As a result, respondent conducted surveillance of the drop-off area near the cemetery and petitioner"s son was observed being dropped off in a parking lot of a store near district property. Surveillance from September 20, 2001 until December 18, 2001, revealed that petitioner"s son exited 222 Roslyn Street in the morning, entered a vehicle registered to petitioner, with a registration address of 29 Erskine Avenue in Buffalo, outside district boundaries, and was dropped off at or near respondent"s high school around 7:30 a.m. During the ten-day surveillance over nine weeks, petitioner"s son was never seen at 28A Glenwood Court.

By letter dated January 4, 2002, respondent"s superintendent informed petitioner of the district"s investigation and determination that her son resided with her at the 222 Roslyn Street address and was not a district resident. Petitioner was advised that Robert would be excluded from attendance, effective January 25, 2002, and was invited to submit information clarifying her son"s residency status. On January 24, 2002, petitioner provided district officials with copies of a lease, phone bill and utility bill for the apartment at 28A Glenwood Court. By letter dated January 25, 2002, the superintendent confirmed that he would postpone his residency determination until February 1, 2002. On January 31, 2002, the superintendent advised petitioner of his decision that, based upon all information available, including observations of investigators that no activity occurred at the 28A Glenwood Court apartment, her son would be excluded from district schools on February 1, 2002. Another letter dated February 5, 2002 advised petitioner that she would have until February 7, 2002 to submit additional information and that Robert could continue in attendance until a final determination was rendered. The final determination to exclude Robert, effective February 8, 2002, was made on that date. Petitioner commenced this appeal on February 25, 2002. Petitioner"s request for interim relief to permit her son to remain in respondent"s school without the payment of tuition pending a determination of this appeal on the merits was granted on February 28, 2002.

Petitioner contends that she resides with her son at the 28A Glenwood Court apartment within respondent"s district but admits that they both have stayed overnight with her fianc" at 222 Roslyn Street on school days and weekends during the period of respondent"s surveillance. Respondent contends that petitioner and her son reside at 222 Roslyn Street in Buffalo and argues that petitioner has failed to take any affirmative action demonstrating her intent to establish a new residence elsewhere.

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 the 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 Bell, 41 Ed Dept Rep ___, Decision No. 14,748; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Chan, 39 id. 200, Decision No. 14,214; judgment granted dismissing petition to review, Supreme Court, Albany County, Connor, J., June 7, 2000, n.o.r.). For purposes of Education Law "3202, a person can have only one residence. A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Chan, supra; Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010; Appeal of a Student with a Disability, 36 id. 113, Decision No. 13,674). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to remain in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926).

Based on the record before me, I find that petitioner has failed to prove that she has abandoned her residence at 222 Roslyn Street, Buffalo. Petitioner admits owning her home at 222 Roslyn Street in Buffalo, outside respondent"s district, and spending time there with her fianc", her son Robert and her other child. Although petitioner provided respondent with copies of a lease for an apartment at 28A Glenwood Court, her driver"s license, automobile registration and insurance, W-2 income tax form, bank accounts and court papers listing the apartment as her address, she also indicated that her purpose for renting the apartment was in anticipation of selling her residence at 222 Roslyn Street, which did not occur.

Respondent"s surveillance indicates that Robert still resides at 222 Roslyn Street, where he was observed entering a vehicle registered to petitioner at an address outside the district, and being dropped off at or near Cleveland Hill High School between 7:33 a.m. and 7:45 a.m. on four mornings in December 2001. During surveillance on 12 occasions, from October 30, 2001 to January 27, 2002, Robert was never seen at 28A Glenwood Court and no activity was observed at that address. Petitioner offered no explanation for the lack of her presence, Robert"s presence and any activity at 28A Glenwood Court during the period of this surveillance. Under these circumstances, I do not find respondent"s determination to be arbitrary, capricious or unreasonable (Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142). Therefore, respondent"s determination will not be set aside.

While the appeal is dismissed for the reasons discussed above, I note that petitioner retains the right to reapply to the district for admission on Robert"s behalf in the event that petitioner has new information regarding Robert"s residency status subsequent to the date of respondent"s prior decision (Appeal of Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476).

THE APPEAL IS DISMISSED.

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