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Decision No. 15,943

Appeal of ELIZABETH VANGILDER, on behalf of her children JOSHUA, SARAH and TYLER, from action of the Board of Education of the Pocantico Hills Central School District regarding residency.

Decision No. 15,943

(July 14, 2009)

Allyn, Hausner & Montanile, LLP., attorneys for petitioner, Glenn B. Allyn, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Pocantico Hills Central School District (“respondent”) that her children, Joshua, Sarah and Tyler, are not district residents.  The appeal must be sustained.

Petitioner enrolled her children in respondent’s schools for the 2006-2007 school year, listing a home located on Heather Lane within respondent’s district as her residence.  In December 2006, after conducting surveillance and meeting with petitioner, respondent determined that petitioner and her children resided on Mayfair Road outside the district.  Petitioner commenced an appeal asserting that she was forced to temporarily relocate outside the district because the Heather Lane residence had become uninhabitable due to mold in the basement. The parties entered into a stipulation of settlement (“agreement”) which permitted petitioner’s children to attend respondent’s schools on a tuition-free basis to allow for the construction of a new dwelling on Heather Lane. 

Due to alleged fiscal constraints from the failure to sell the dwelling at Mayfair Road, petitioner was unable to construct a new dwelling at Heather Lane. However, respondent permitted petitioner’s children to enroll in its schools at the beginning of the 2007-2008 school year upon receiving proof of residency indicating that petitioner and her children were moving back into the Heather Lane dwelling.  Respondent subsequently conducted additional surveillance.  By letter dated May 5, 2008, respondent notified petitioner of its determination that petitioner and her family do not reside within respondent’s district.  This appeal ensued.

Petitioner maintains that she and her children reside within the district on Heather Lane and seeks an order determining that her children are entitled to attend respondent’s schools tuition-free.

Respondent maintains that petitioner and her family reside outside the district on Mayfair Road and that the petition should be dismissed.

I must first address several procedural issues.  Petitioner requested permission to submit a late memorandum of law pursuant to §276.4 of the Commissioner’s regulations.  Respondent did not object.  Accordingly, I have considered petitioner’s memorandum of law.   

Respondent, in its memorandum of law, requests an order directing petitioner to reimburse the district for her children’s attendance for the 2007-2008 school year.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Respondent failed to request such relief in its answer and therefore, I have not considered the portion of its memorandum of law which pertains to the same.  Moreover, the Commissioner has historically declined to award tuition in residency appeals (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025).  Such relief should be sought in a court of competent jurisdiction (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025). 

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

In support of her petition, petitioner provided documentary evidence listing Heather Lane as her address.  Petitioner also submitted a sworn affidavit from her mother, who owns both the Heather Lane and Mayfair Road dwellings, stating that petitioner and her children moved back in with her on Heather Lane at the beginning of the 2007-2008 school year. 

Respondent emphasizes its agreement with petitioner regarding petitioner’s previous residency appeal involving the 2006-2007 school year.   Specifically, respondent notes that a new Heather Lane dwelling was not built and that petitioner failed to provide any evidence that the alleged mold problem at Heather Lane has been resolved.  However, the mere fact that petitioner’s original plans may have changed does not necessarily mean that petitioner and her children did not eventually move back to the Heather Lane residence.

Respondent based its residency determination on two surveillance reports that indicate that surveillance was conducted during a period of eighteen days in January 2008 and during a period of six days in February and March, 2008.  However, the reports are devoid of any specificity as to the dates, times and frequency of the surveillance.  Petitioner acknowledges that her children stay up to three nights per week at the Mayfair home where her ex-husband and three year old son live.  Petitioner also indicates that she and the children spent weekends at Hunter Mountain during the 2007-2008 ski season, which was when respondent conducted surveillance.  Finally, petitioner states that her job required her to work nights and that she often would not return home until after her children went to school.  Given the lack of specificity of the surveillance and petitioner’s explanations, I find respondent’s surveillance reports inconclusive and unpersuasive. Because respondent’s determination was based on these reports, I further find that its residency determination was arbitrary and capricious, and must be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Joshua, Sarah and Tyler to attend school in the Pocantico Hills Central School District without the payment of tuition.

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