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Decision No. 15,287

Appeal of EASTER ORR, on behalf of ARIES and ADALYA ORR, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 15,287

(August 18, 2005)

Douglas E. Libby, Esq., attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

 

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that Aries and Adalya Orr are not district residents. The appeal must be dismissed.

Petitioner is the grandmother and adoptive mother of Aries and Adalya. She owns two homes, one on 116th Road, Elmont ("Elmont") within respondent's district, and the second on 115th Road in Queens ("Queens"), outside respondent's district. On May 6, 2002, petitioner registered Aries and Adalya for school listing Elmont as their residence.

On September 7, 13 and 15, 2004, petitioner's vehicle was observed dropping Aries and Adalya off at respondent's high school from Queens. On four occasions (September 22, 23, 27 and October 5), petitioner and her granddaughters were observed exiting the Queens residence and proceeding to respondent's high school. Also, on Tuesday, November 9, 2004, at approximately 7:20 a.m., petitioner and her two granddaughters were observed leaving the Queens residence in petitioner's vehicle.

By letter dated October 14, 2004, respondent's administrative assistant to the superintendent notified petitioner that Aries and Adalya were not entitled to attend school in respondent's district on the basis of "Actual Residence Elsewhere." By letter dated October 19, 2004, petitioner asked to appeal this determination. An administrative review, in accordance with �100.2(y) of the Commissioner's regulations, was scheduled for November 9, 2004. Prior to the commencement of the review, petitioner notified the administrative review officer that she did not wish to proceed. Petitioner instead submitted documentation to support her ownership interest in the Elmont residence.

By letter dated November 29, 2004, respondent's administrative review officer notified petitioner of his determination that Aries and Adalya were not district residents. This appeal ensued. Petitioner's request for interim relief was granted on A pril 6, 2005.

Petitioner argues that she resides at the Elmont residence, but stays at the Queens residence on Fridays, Saturdays and Sundays. Petitioner also alleges that she was observed exiting the Queens residence because renovations were in progress at the Elmont residence.

Respondent alleges that the appeal is untimely. Respondent acknowledges that petitioner owns both the Elmont and Queens residences, but argues that petitioner and her grandchildren maintain their physical presence at, and have not abandoned, the Queens residence. Finally, respondent contends that its actions were not arbitrary, capricious or unreasonable.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O'Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016). The administrative review officer issued a final determination on November 29, 2004. Petitioner did not commence her appeal until March 15, 2005, more than 30 days after respondent's final residency determination, and petitioner offers no excuse for the delay. Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent , 44 id. 81, Decision No. 15,105).

The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

In this case, there is no dispute that petitioner owns two homes, one in the district and a second outside the district. The fact that petitioner owns and pays school taxes on the in-district residence, without more, does not make her a district resident, nor does it entitle her granddaughters to attend district schools. In support of her claim of residence within the district, petitioner submits a deed, tax bills, library card, heating bill envelope, and Keyspan Energy, Water Authority and Long Island Power Authority bills. As respondent argues, all of these documents would be available to petitioner as the owner of the Elmont residence and do not necessarily establish residency within the district.

The petition states that petitioner and her granddaughters stay at the Queens residence on Fridays, Saturdays and Sundays. However, petitioner offers no explanation as to why she spends weekends at the Queens residence. When confronted with respondent's surveillance, which evidenced the transportation of her granddaughters from the Queens residence to respondent's schools on weekdays, petitioner claimed that she temporarily stayed at the Queens residence because of renovations to the Elmont residence. Petitioner, however, offers no proof of the renovations. In addition, petitioner submits evidence that her daughter and her daughter's four children live at the Elmont residence.

Based on the record before me, I find petitioner has failed to meet her burden of proof in establishing that she is a district resident, and therefore find respondent's determination to be neither arbitrary nor capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission on her granddaughters' behalf at any time should the circumstances presented in the record of this appeal change (Appeal of a Student with a Disability, 43 Ed Dept Rep 80, Decision No. 14,926).

THE APPEAL IS DISMISSED.

END OF FILE