Appeal of VERNON JONES and MICHELLE BELASSE, on behalf of their children ANICA COUSLEY and BRIYANI JONES, from action of the Board of Education of the Malverne Union Free School District regarding residency.

 

Decision No. 15,430

 

(August 1, 2006)

 

Frederick K. Brewington, Esq., attorney for petitioners

 

Ehrlich, Frazer & Feldman, attorneys for respondent, Philip Kouyoumdjian, Esq., of counsel

 

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Malverne Union Free School District (“respondent”) that their daughters, Briyani and Anica, are not district residents.  The appeal must be dismissed.

 

Petitioners and their children appear to have resided in West Hempstead, within respondent’s district, until April 2005 when they moved outside the district to live with a relative in Queens Village on a “temporary” basis.

 

Following reports that petitioners’ children were not being transported to school by bus, respondent conducted an investigation of their residency.  Surveillance was conducted on April 11, 12 and 14, and September 6, 7, 8, 9 and 12, 2005.  Petitioners were observed transporting the children to school from the Queens Village residence in the morning and picking them up at the school bus stop in West Hempstead in the afternoon and driving them back to Queens Village.

 

By letter dated September 14, 2005 to the Queens Village address, respondent’s director of pupil personnel services, as the designee for residency determinations, notified the children’s mother that neither she nor her children were district residents.  The letter invited her to call to arrange a meeting where she would have the opportunity to present evidence regarding her residency.  The letter also provided notice that the children would be excluded from school effective September 28, 2005 if no contact were made.

 

A meeting was held on September 16, 2005 with petitioners, the director of pupil personnel services and respondent’s acting registrar clerk.  Petitioners were informed of respondent’s surveillance and responded with correspondence dated September 21 and 23 using their West Hempstead address and claiming to continue to reside there, but admitting that the children were being cared for in Queens Village.   Petitioners’ attorney submitted a letter to respondent on October 3, 2005, arguing that the family was living in Queens Village temporarily while repairs were being made to the West Hempstead apartment they continued to rent; providing copies of two receipts for $800 each for the months of August and September 2005.  The letter also enclosed an October 1, 2005 affidavit by petitioners explaining that the West Hempstead apartment was in disrepair but that petitioners were making improvements and planned to return with their children.  In addition, the letter enclosed copies of petitioners’ drivers’ licenses listing the West Hempstead address, as well as correspondence from an insurance company and bank.

 

By letter dated October 14, 2005, the president of the Board of Education affirmed the district’s residency determination and informed petitioners of their right to appeal to the Commissioner.  This appeal ensued.  On November 15, 2005, petitioners’ request for interim relief was denied.

 

Petitioners claim to reside in West Hempstead, even while living with their children at a relative’s residence in Queens Village until their apartment is repaired.  Petitioners submitted an affidavit from Michelle Belasse’s sister, owner of the property in Queens Village, asserting that she is offering space in her home to petitioners and their children temporarily until they are able to improve their financial situation to restore their apartment.  Petitioners also claim they should have received notice of an evidentiary hearing, rather than a meeting to discuss the residency determination.

 

Respondent contends that petitioners and their children reside in Queens Village and have failed to present any evidence of physical presence within the district.  Respondent asserts that petitioners’ living arrangements are likely to continue indefinitely and that petitioners have failed to establish when, if ever, they intend to move into the district.  Respondent argues that petitioners have not produced a lease or other proof of residence in the district, aside from two handwritten rental receipts that are insufficient evidence of residency.

 

Initially, I will address petitioners’ procedureal claim.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR �100.2[y]; Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613).  The regulation does not require a formal hearing or representation by counsel (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of Marbury, 41 id. 119, Decision No. 14,634).  In this case, I find that petitioners were provided adequate notice and an opportunity to present evidence of their residency at a meeting on September 6, 2005 and in subsequent correspondence.

 

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 Innocent, 44 Ed Dept Rep 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).

 

While petitioners claim to reside in the district, they have not provided a lease, landlord affidavit, or definitive proof of residency.  Petitioners submitted only two handwritten receipts, one that is noted to be for “rent.”  Indeed, even if they are renting property in West Hempstead, petitioners are not physically present there.  In addition, petitioners have failed to rebut the district’s surveillance evidence but rather admit living outside the district at the address identified in respondent’s investigation.

 

Based on the record before me, I do not find respondent’s determination to be arbitrary or capricious.

 

THE APPEAL IS DISMISSED.    

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