* Subsequent History: Matter of Board of Educ. of Spackenkill Union Free School Dist. v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; May 31, 2006. *

Appeal of ADELE ELKAREH, on behalf of her children ANDREW and LANA HASHIM, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 15,294

(August 22, 2005)

Wolfson, Greller, Egitto & Klein LLP, attorneys for petitioner, Lee David Klein, Esq., of counsel

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Daniel Petigrow, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Spackenkill Union Free School District (“respondent”) that her children are not district residents.  The appeal must be sustained.

Petitioner owns multiple houses, including a two-family residence located within respondent’s district on Spackenkill Road, Poughkeepsie (“Spackenkill Road”).  She also owns a residence and dental office from which petitioner’s husband conducts his dental practice located on Ferris Lane, Poughkeepsie (“Ferris Lane”), which is not within respondent’s district. 

Petitioner’s children have been attending respondent’s schools since September 2002.  At some point, the district came into possession of a graduation invitation from petitioner inviting persons to the Ferris Lane address and it began a residency investigation.  From January 30 to February 26, 2004, respondent’s investigator conducted surveillance of the Spackenkill Road and Ferris Lane residences.  On eight separate occasions during this period, respondent’s investigator observed no activity during the early morning hours at Spackenkill Road.  On five separate occasions he observed a “female and male youth” leaving the Ferris Lane residence in the early morning hours and being dropped off at respondent’s Hagan elementary school. 

By letter dated April 14, 2004, respondent’s assistant superintendent of schools informed petitioner that her children’s residency was in question and scheduled a residency hearing for April 22, 2004.  The hearing was adjourned a number of times and was held on August 19, 2004, at which time petitioner appeared with information to support her claim of residency in the district.  Subsequently, the assistant superintendent decided that petitioner’s children were not, in fact, district residents.  This appeal ensued.  Petitioner’s request for interim relief was granted on September 8, 2004.

Petitioner contends that her family “sometimes stay[s]” at Ferris Lane but resides at Spackenkill Road.  Petitioner also contends that respondent’s residency determination was arbitrary, capricious and inconsistent with the weight of the evidence.

Respondent alleges that petitioner’s children are not district residents.  Respondent also contends that its decision was rationally based on the totality of the evidence.

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).  If a person owns or rents property both within and outside the school district, only one property can be considered one’s legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453).

In support of its position respondent submits an affidavit from its assistant superintendent who avers that petitioner admits that her family continues to eat, sleep and entertain guests at Ferris Lane.  He also states that petitioner and her husband continued to maintain residential telephone numbers at Ferris Lane, and that petitioner’s driver’s license evidencing residence at Spackenkill Road was not issued until May 3, 2004, three weeks after the district informed her that a residency hearing would be convened, and one week after she was informed that her license was being requested.

In addition, the assistant superintendent avers that the Ferris Lane residence is subject to a city of Poughkeepsie zoning ordinance which provides, in pertinent part, that professional offices in residential dwellings “shall be limited to one (1) professional who shall reside on the premises,” petitioner maintains the New York State STAR exemption on Ferris Lane, which is available only on a taxpayer’s primary residence, and the Town of Poughkeepsie water and sewer bill that was due as of August 11, 2003 was sent to petitioner’s husband at Ferris Lane.

Finally, he states that petitioner affirms in a jury questionnaire that she resides at Ferris Lane and provides a corresponding home telephone number.  He further states that the district’s surveillance report identified five separate instances over a period beginning January 30, 2004, and concluding on February 26, 2004, where petitioner’s children were observed leaving Ferris Lane in the early morning and being dropped off at respondent’s elementary school.  On eight occasions during the same time period no activity was observed at Spackenkill Road.

In response, petitioner maintains that she and her family have resided at Spackenkill Road since June 2002, although her family occasionally stays at Ferris Lane where they previously resided.  She explains that she uses the Ferris Lane residence for parties because the backyard is larger and confined by a fence.  She admits that during the period of the district’s surveillance her family stayed at Ferris Lane to care for her ill mother.  Petitioner maintains that she intends to change the STAR exemption to apply to Spackenkill Road and that the district residency determination should not be based on a zoning ordinance or the New York State Real Property Tax Law.  Petitioner explains that the jury questionnaire reflected the Ferris Lane address so that she could avoid being called for jury duty two years in a row.  Petitioner also explains that she is unable to rent the Ferris Lane residence because her husband’s dental practice is located in the building.  Petitioner further admits that they relocated to Spackenkill Road because of the quality of respondent’s district.

Petitioner submits extensive documentation in support of her claim of residency.  These include official tax documents such as joint federal income tax returns for the years 2002 and 2003, joint State tax returns for the year 2003, and her W-2 for the years 2002 and 2003.  Petitioner also submits other legal documents such as deeds for Spackenkill Road and Ferris Lane and drivers’ licenses and voter registration cards for her and her husband.  In addition, she submits numerous residential related bills and invoices, bank statement from April 2004 to May 2004, letters from her bank, blank checks, homeowners insurance policy binder, numerous letters, envelopes and forms, and sworn statement from family friend attesting to petitioner’s residency.  Finally, she submits renovation and repair proposals for the Spackenkill Road residence and photographs of the Spackenkill Road residence, including pictures of the children’s furnished bedrooms.

I do not find the evidence presented by respondent to be inconsistent with petitioner’s contention that she resides permanently at Spackenkill Road, and uses Ferris Lane intermittently as a convenience.  The evidence presented with respect to the STAR exemption, zoning ordinance and jury questionnaire is not dispositive on the question of residency, nor is the fact that petitioner was observed on five mornings in February 2004 at Ferris Lane or the fact that respondent’s surveillance of the Spackenkill Road residence failed to show any activity.  Petitioner’s explanation for the results of the surveillance is convincing and the fact that petitioner stayed at Ferris Lane during the period of surveillance caring for her ill mother is consistent with petitioner’s contention that she resides permanently at Spackenkill Road.

In sum, I do not find respondent’s surveillance evidence persuasive proof that petitioner has failed to abandon the Ferris Lane residence.  I further find that respondent’s other evidence is inconclusive in light of petitioner’s extensive proof.  Accordingly, I am constrained to find, on the record before me, that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Andrew and Lana Hashim to attend school in the Spackenkill Union Free School District without the payment of tuition.

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