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Decision No. 15,267

Appeal of JOSEPH E. VAN VALEN, on behalf of his son JOSEPH, JR., from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 15,267

(August 5, 2005)

Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the determination of the Clarkstown Central School District ("respondent") that his son, Joseph, Jr., is not a district resident. The appeal must be dismissed.

In January 2005, petitioner enrolled his son in respondent's schools presenting as proof of residency a lease on a house on Carolina Drive within the district. On February 1, 2005, respondent commenced an investigation into petitioner's residence. By letter dated February 3, 2005, respondent's assistant business administrator notified petitioner that he had determined that petitioner and his son did not reside within the district. By letters dated February 3 and 7, 2005, petitioner made additional arguments in support of residency. By letter dated February 7, 2005, respondent's assistant superintendent for business notified petitioner that he had determined that petitioner was not a district resident. This appeal ensued. Petitioner's request for interim relief was denied on February 18, 2005.

Subsequent to the filing of the petition on March 4, 2005, petitioner provided respondent with a March 1, 2005 lease on property at South Little Tor Road in respondent's district. Respondent agreed to readmit Joseph, Jr. to school upon petitioner's agreement to certain conditions, including an admission that his son was not a district resident from January 28, 2005 to February 16, 2005, and an agreement to pay respondent tuition for that period. By letter dated March 10, 2005, petitioner refused to accept the conditions. According to respondent, the district readmitted Joseph, Jr. as a "child-based decision," based on the belief that petitioner would keep him out of school and that it could collect tuition if it is found that Joseph, Jr. was not and is not entitled to attend district schools.

Based on the state of affairs before his son's readmission, petitioner alleged that his son was a district resident. Respondent contends that with respect to the period prior to Joseph, Jr.'s readmission, the appeal is moot. Respondent also contends that Joseph, Jr. is not a district resident.

The appeal must be dismissed as moot with respect to the period prior to Joseph, Jr.'s readmission. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). The record reflects that the lessor of the property on Carolina Drive did not have the legal right to lease the property. Therefore, petitioner entered into the South Little Tor Road lease. Thus, Joseph, Jr.'s residency status, based on the Carolina Road address from January 28, 2005 to February 16, 2005, is moot.

Because the issue has not yet been decided by respondent and is therefore not ripe for review, I decline to address whether the lease on the South Little Tor Road property establishes petitioner's residency within the district. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643). In a letter dated March 7, 2005, respondent agreed to readmit Joseph, Jr. based on the South Little Tor Road address given petitioner's agreement to certain conditions. However, the right to attend the schools of the district in which one resides is not conditional, and respondent has not made a determination that Joseph, Jr. is not a district resident pursuant to �100.2(y) of the Commissioner's regulations based on this address.

THE APPEAL IS DISMISSED.

END OF FILE