Appeal of JODY A. PETERSON on behalf of his children JAYCEE and JONAH, from action of the Board of Education of the Southwestern Central School District regarding residency.

Decision No. 15,595

(June 14, 2007)

Goodell & Goodell, attorneys for petitioner, Andrew W. Goodell, Esq., of counsel

Lundberg & Gustafson LLP, attorneys for respondent, Myra V. Blasius, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Southwestern Central School District (“respondent”) that his children, Jaycee and Jonah, are not district residents.  The appeal must be dismissed.

Petitioner owns a house on East Terrace Avenue, Lakewood, within respondent’s district, and another house on Trask Road, Jamestown, outside respondent’s district.

During the 2005-2006 school year, petitioner resided in Jamestown and Jaycee attended respondent’s schools as a nonresident student.

On or about December 14, 2005, petitioner sought to have respondent and the City School District of the City of Jamestown adjust their respective boundaries so that petitioner’s Jamestown residence would be located in respondent’s district.  When it became apparent that the petitioner’s request would take time, he allegedly decided to change his primary residence to Lakewood.

On or about September 1, 2006, respondent’s superintendent received a letter from petitioner indicating that, as of May 1, 2006, his family’s primary residence was in Lakewood.  On October 6, 2006, petitioner met with the superintendent and presented information to support his residency claim.

By letter dated November 16, 2006, the superintendent notified petitioner that his children were not, in fact, district residents.  This appeal ensued.

Petitioner alleges that his children are district residents and will reside in Lakewood for a majority of the year.  Respondent alleges that petitioner can have only one legal residence and that petitioner’s legal residence is in Jamestown.  Respondent contends that, by his own admission, petitioner’s children reside in Jamestown for the majority of the school year.  Finally, respondent alleges that petitioner changed his residence to Lakewood only after he failed to have his Jamestown property designated within respondent’s district.

On January 19, 2007, respondent submitted page 2 of the minutes from the work session of respondent’s August 22, 2006 meeting and page 4 of the minutes from respondent’s January 9, 2007 regular board meeting and requested that they be included in the answer previously filed and served on or about January 12, 2007.  Respondent states that the page from the work session was inadvertently omitted from an exhibit to the answer and that the page from its board meeting was not available at the time the answer was submitted.  I have accepted these materials for consideration (8 NYCRR §276.5).

Respondent contends that petitioner’s reply is untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]).  Respondent’s affidavit of service indicates that the answer was served by mail on January 12, 2007.  Thus, petitioner’s reply was due on January 26, 2007.  On February 2, 2007, petitioner’s attorney served a reply affidavit.  Petitioner’s attorney argues that the reply time should be measured from January 19, 2007, the date respondent submitted the additional documents.  I disagree.  The substance of the additional documents was included in respondent’s answer and petitioner could have timely addressed them.  Accordingly, I have not considered petitioner’s reply affidavit.

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).

In support of his position, petitioner submits driver licenses for his wife and himself, the front of which reflect the Jamestown address and the back containing handwritten notations indicating Lakewood as their address.  Petitioner also submits copies of voter registration cards and a 2005 federal income tax return reflecting the Lakewood address.  However, in the petition, petitioner contends that, on or about April 16, 2006, his family began to live full-time at the Lakewood address, but that as of September 1, 2006, his family began to divide their time between Lakewood and Jamestown, typically spending weekdays in Jamestown and weekends in Lakewood.  He argues that they spent the majority of 2006 --more than 183 days-- at the Lakewood address.

Respondent argues that petitioner’s children resided in Jamestown for the majority of the school year.  Respondent also submitted a report from a bus driver who passed the Lakewood address from October 18 to October 31, 2006 and observed no activity.

Residence is not determined by the number of days that one stays at a location in a given year.  Rather, it is the individual’s presence and intent to remain at the time of the residency determination that is dispositive.  Given petitioner’s admission that his family stays in Lakewood only on weekends and the lack of evidence to establish petitioner’s physical presence as an inhabitant of the district and his intent to reside there, I find that petitioner has failed to meet his burden to establish that he has abandoned his home in Jamestown and established residence in respondent’s district for the purpose of Education Law §3202.  Thus, based on this record, I cannot find respondent’s decision to be arbitrary or capricious.  Accordingly, I find no reason to disturb respondent’s decision that Jaycee and Jonah are not district residents.

Nevertheless, I note that petitioner retains the right to apply to the district for admission of his children at any time should circumstances change (Appeal of P.E., 45 Ed Dept Rep 148, Decision No. 15,286; Appeal of C.F., 44 id. 109, Decision No. 15,113).  In the event petitioner and his children establish an actual legal residence in Lakewood, petitioner may apply to the district for readmission of his children at that time.

THE APPEAL IS DISMISSED.

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