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Decision No. 14,795

Appeal of JOSEPH and BRENDA SHEPARD on behalf of their children JESSICA, BRITTANY, JOSEPH, KAYLEE, NICHOLAS and SAMUEL, from action of the Barker Central School District regarding residency.

Decision No. 14,795

(August 23, 2002)

Andrew K. Cuddy, Esq., attorney for petitioner

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

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Barker Central School District ("respondent") that their children, Jessica, Brittany, Joseph, Kaylee, Nicholas and Samuel, are not district residents. The appeal must be sustained.

Petitioners own a home on Ridge Road in the Town of Gasport, within respondent"s district. Jessica, Brittany, Joseph and Kaylee attended respondent"s schools until June 1999, when they were withdrawn for home schooling. Nicholas, eight years of age and Samuel, five years of age, have never attended respondent"s schools.

In June 2001, a student informed a district teacher that she was going to spend the weekend in Springville at Jessica"s new home, outside the district. Respondent commenced an investigation to determine whether petitioners moved from their Ridge Road residence. In July 2001, investigators observed petitioners at their Gasport home and interviewed Springville neighbors who observed some of the Shepard children in the vicinity of property on Forest Avenue, owned by Paul Davidson, a Shepard family friend. In August 2001, Brenda Shepard confronted an investigator at the Forest Avenue address stating that she did not live in Springville but was vacationing there at her friend"s house. Surveillance in October 2001 detected no activity at either location. On October 17, 2001, Brenda Shepard attended a public meeting of the Springville Zoning Board to support a variance request by Mr. Davidson to allow him to keep farm animals at his Forest Avenue property for the benefit of one of petitioners" children. In February 2002, petitioners and their children were observed at the Gasport home.

By letter dated March 13, 2002, respondent"s superintendent informed petitioners of his preliminary finding that their children primarily reside with Mrs. Shepard in Springville, outside the district. A residency hearing was scheduled for March 25, 2002. Petitioners submitted documentation supporting their residency in Gasport at the March 25 hearing. On April 4, 2002, the superintendent informed petitioners by letter of his final determination that Mrs. Shepard and the Shepard children have resided in Springville since June 2001, and that Mr. Shepard remained in Gasport to maintain that property and care for animals present there, due to the inability to obtain a zoning variance to house the animals in Springville. The superintendent gave "a great deal of weight to comments made by Mrs. Shepard and Paul Davidson at the Springville Zoning Board Hearing, which took place on October 17, 2001," where she stated her intent to move the children to Mr. Davidson"s property. Petitioners" children were excluded from respondent"s schools immediately. Petitioners commenced this appeal on April 29, 2002 challenging respondent"s determination and seeking a determination that their children are entitled to attend school and receive educational services from the district without payment of tuition. Petitioners" request for interim relief was granted on May 17, 2002.

Petitioners contend that they reside with their children on Ridge Road in Gasport, where they have lived for eight years. Petitioners assert that their children have "overnighted" with them on occasion at Forest Avenue, Springville but have never lived apart from either parent. Petitioners also contend that, despite extensive documentation of their residency, the superintendent disregarded overwhelming evidence in making his adverse determination. Petitioners further contend that respondent"s adverse residence determination is one of a series of hostile acts directed against their family.

Respondent denies hostility toward petitioners and contends that Brenda Shepard and the Shepard children have resided on Forest Avenue in Springville since the summer of 2001. Respondent also contends that Brenda Shepard made statements at the October 17, 2001 Springville Zoning Board meeting indicating her intent to move with her children to the Springville property owned by Mr. Davidson. Respondent admits that at least some of the Shepard children still spend some time in Gasport where their father appears to live but that both petitioners are routinely absent from their in-district home.

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 the school district to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep 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.; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). 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 Noti, 40 Ed Dept Rep 393, Decision No. 14,508; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016).

Based on the record before me, I find that petitioners have not abandoned their residence within respondent"s district. Petitioners" extensive documentation of residency at this address includes insurance checks, property tax bills, mortgage statements, voter registrations, driver"s licenses, vehicle registrations, telephone, cable television and credit card bills, supermarket receipts, utility bills, and bank account statements. In addition, petitioners state their intent to remain in respondent"s district and were, in fact, observed by respondent with their children at that address.

Respondent"s determination is based largely upon surveillance that did not produce conclusive results in view of petitioners" explanation that they have spent time with their children visiting their godfather at his residence in Springville (c.f. Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142, where surveillance was conducted on approximately 35 occasions over a four-month period and petitioner failed to provide any reasonable explanation for her complete absence from her alleged residence). Respondent also relies upon statements made by Mrs. Shepard showing an intent to relocate to Springville if a variance was granted for Mr. Davidson to keep farm animals. However, no variance was granted and there is no evidence petitioners have ever attempted to sell or otherwise dispose of their only residential property within respondent"s district.

After carefully reviewing the record, I do not find sufficient evidence to support respondent"s determination that petitioners" children are not district residents (Appeal of Chan, supra). I have considered the parties" remaining contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that Jessica, Brittany, Joseph, Kaylee, Nicholas and Samuel Shepard are residents of the Barker Central School District and are entitled to attend the public schools maintained in the district without the payment of tuition.

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