Appeal of THREE STUDENTS, by their parent, from action of the Board of Education of the Syosset Central School District regarding residency.

Decision No. 15,787

(July 19, 2008)

Law Offices of Joseph M. Fein, attorneys for petitioner, Joseph M. Fein, Esq., of counsel

Law Offices of Vanessa M. Sheehan, attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Syosset Central School District (“respondent”) that his three children are not district residents.  The appeal must be sustained in part.

Petitioner enrolled his three children in respondent’s schools in 1998.  At that time, petitioner owned a home located on Glendale Drive (“Glendale home”), in respondent’s district.  On April 20, 2007, petitioner acquired title to property located on Sandy Hill Road (“Sandy Hill property”) in the Oyster Bay-East Norwich Central School District (“Oyster Bay”).  On August 17, 2007, petitioner and his wife sold the Glendale home and moved to the Sandy Hill property.  Thereafter, petitioner and his wife entered into a one-year lease agreement for property located on Anita Avenue (“Anita Avenue rental”), in respondent’s district, which expires on September 30, 2008.

Early in the 2007-2008 school year, the district became aware that mail sent to petitioner at the Glendale home was forwarded to the Sandy Hill property.  It subsequently learned that petitioner’s forwarding address became effective on or around July 2007.

A residency hearing was held on December 5, 2007.  By decision dated December 6, 2007, the hearing officer found that the children were not district residents.  By letter dated December 7, 2007, the superintendent advised petitioner and his wife that the children were not district residents and that they would be excluded from attending respondent’s schools effective December 21, 2007.  This appeal ensued, and petitioner’s request for interim relief was granted on December 20, 2007.  On December 21, 2007, petitioner enrolled his two youngest children in Oyster Bay and kept his oldest daughter, a twelfth-grader, in respondent’s schools. 

Petitioner maintains that he and his family reside in respondent’s district. He contends that although his current lease was procured while renovations were being completed on the Sandy Hill property, he now has no intention of residing at the Sandy Hill property and has put it on the market for sale.  Petitioner contends that his oldest daughter is a senior and should be allowed to graduate with her class.  He further alleges that his two younger children have been classified as having a disability and that an appropriate individualized education program would have to be developed prior to any change in their educational setting.  Petitioner also contends that the hearing officer’s determination should be vacated because the hearing officer failed to disclose that he was a former partner in the law firm representing respondent in this appeal.

Respondent maintains that petitioner has not adduced sufficient evidence of his intent to remain permanently in the district.  Specifically, respondent alleges that petitioner has not abandoned the Sandy Hill property.  Respondent argues that while petitioner has placed the Sandy Hill property on the market, the asking price far exceeds the fair market value of the house.  Respondent further contends that petitioner’s intent to remain in the district is belied by his decision to register two of his children in Oyster Bay.  Respondent also alleges that petitioner has failed to join necessary parties.   

First, to the extent that petitioner requests that his oldest daughter be deemed a resident of respondent’s district, the appeal must be dismissed as moot.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Petitioner’s oldest daughter graduated from respondent’s schools at the end of the 2007-2008 school year.  Therefore, the appeal is moot with respect to her.

Respondent argues that petitioner failed to join Oyster Bay as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  The record reflects that petitioner’s two youngest children are currently enrolled in Oyster Bay and the children’s residency has not been disputed by that district.  Thus, Oyster Bay would not be adversely affected by a determination of an appeal in favor of the petitioner and is not a necessary party in this appeal.

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). 

In the instant case, there is no dispute that petitioner and his children physically reside at the Anita Avenue rental, within respondent’s district.  The issue is whether or not petitioner has demonstrated an intent to permanently reside within respondent’s district.  On the record before me, I find that petitioner has demonstrated such intent.

While it is clear from the record that petitioner originally leased the Anita Avenue rental with the intent to reside at the Sandy Hill property upon completion of extensive renovations, petitioner has demonstrated that he has placed the Sandy Hill property on the market and contends that he has no intention of making that property the family’s permanent residence.

Respondent relies on the telephone listing, mail forwarding address and petitioner’s ownership of the Sandy Hill Road address for its determination that petitioner’s children are not district residents.  I find this evidence alone to be unpersuasive proof of petitioner’s residency.  The telephone listing is in petitioner’s name only and petitioner’s wife testified at the residency hearing that she listed the Sandy Hill property as her permanent residence solely for receipt of mail.

Moreover, petitioner provides a plausible explanation for enrolling, and maintaining, his two children in Oyster Bay (petitioner enrolled his children in Oyster Bay upon notification that they would be excluded from respondent’s schools and kept them there during the pendency of this appeal to avoid disruption).

In sum, I find respondent’s evidence insufficient to support its determination.  Respondent’s determination is largely based upon petitioner’s original intent to permanently reside at the Sandy Hill property.  In support of his residency claim, petitioner submits a copy of his lease for the Anita Avenue rental, a real estate report listing the Sandy Hill property for sale and petitioner’s verified statements that he intends to reside in respondent’s district.  Also, it is undisputed that petitioner and his family physically reside at the Anita Hill rental. 

In view of this disposition, I need not address petitioner’s remaining contentions. 

THE APPEAL IS SUSTAINED.

IT IS SO ORDERED that respondent allow petitioner’s two children to attend school in the Syosset Central School District without the payment of tuition.

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