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Decision No. 15,974

Appeal of WILLIAM W. WATSON, JR., on behalf of his children EMILY, MARIANNA and WILLIAM, III, from action of the Board of Education of the Starpoint Central School District regarding residency.

Decision No. 15,974

(August 20, 2009)

Sargent & Collins, LLP, attorneys for respondent, Richard G. Collins, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Starpoint Central School District (“respondent”) that his children, Emily, Marianna and William, III, are not district residents.  The appeal must be sustained.

Petitioner’s children were enrolled in respondent’s district for the 2008-2009 school year.  Petitioner allegedly resides at Campbell Boulevard, North Tonawanda, within the district, and the children’s mother resides outside the district in Niagara Falls.  According to a temporary order of custody and visitation dated August 18, 2008, petitioner is designated as the children’s temporary residential custodian “for school registration purposes only” and is responsible for providing transportation for the children to and from school.  The temporary order further provides that petitioner has custody of the children from Friday morning through Monday at 6:00 p.m. 

By letter dated October 23, 2008, respondent’s attendance officer notified petitioner of his determination that the children were not district residents and advised petitioner that as of October 31, 2008 the children would be excluded from the district’s schools.  This appeal ensued.  Petitioner’s request for interim relief was granted on November 4, 2008.

Petitioner alleges that pursuant to the temporary order, he has been designated as the custodial parent of his three children for school purposes, that he resides in the district, and as such, the children should be permitted to attend respondent’s schools.

Respondent maintains that petitioner has failed to demonstrate residency within the district.  Respondent cites surveillance conducted over a three-week period and staff conversations with petitioner’s children in support of its position. 

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).

It is undisputed that petitioner has residential custody of the children pursuant to a court order.  However, respondent argues that petitioner has not demonstrated that his legal residence is within the district.  Respondent maintains that petitioner lives on Sweet Home Road, outside the district. 

Respondent’s attendance officer based his October 23, 2008 residency determination on conversations between district staff and petitioner, petitioner’s mother, petitioner’s children and the children’s mother. Those conversations allegedly indicated that the children reside with petitioner’s parents on Fletcher Street, in Tonawanda, and that petitioner resides in the Sweet Home district.  Respondent also relies on a statement from Emily’s bus driver indicating that Emily was never at the Campbell Boulevard address in the morning, and that she entered a vehicle when she was dropped off in the afternoon.  Finally, respondent notes that a computer search indicates that petitioner’s primary address is his parent’s address on Fletcher Street, outside the district.

Following the attendance officer’s determination, respondent’s investigator conducted surveillance on seven occasions between October 30 and November 12, 2008.   On three occasions (two afternoons at Campbell Boulevard and one morning in Niagara Falls), neither petitioner nor his children were observed.  On two mornings, petitioner was observed picking up his children from their mother’s residence in Niagara Falls.  On two afternoons, the children got off the school bus at Campbell Boulevard, entered the residence and were later driven to Niagara Falls.  On one of those occasions, petitioner and his children stopped at the Sweet Home Road address before continuing to Niagara Falls and on another, petitioner drove to the Sweet Home Road address at 7:20 p.m.

In support of his residency claim, petitioner submits his utility history from November 2006 through October 2008, school and county/town tax bills from the 2008 fiscal year for the Campbell Boulevard property, income tax returns for 2006 and 2007, vehicle registration, financial statements, driver’s license, and 20 affidavits from petitioner’s tenants indicating his address to be on Campbell Boulevard.  In addition, petitioner submits an affidavit from petitioner’s father attesting that petitioner does not reside with him on Fletcher Street, an affidavit from someone who cleans petitioner’s home at that address, and several bills addressed to petitioner at the Campbell Boulevard residence.  Petitioner also explains that the surveillance observations were consistent with the requirements of the temporary order of custody, which gives the children’s mother custody of the children from Monday evening through Thursday evening and requires petitioner to transport them to school.

On the record before me, I cannot find respondent’s limited surveillance of petitioner at the Sweet Home address on two occasions, to be persuasive evidence that petitioner does not reside at the Campbell Boulevard address.  

Respondent’s evidence is contradicted by the documentation submitted by petitioner, including multiple affidavits attesting to his residence at the Campbell Boulevard address.  The driver’s license and bills submitted by petitioner all reflect the Campbell Boulevard address.  The 2008-2009 school tax bill indicates that petitioner owns the property jointly with his mother and that the property qualifies for a STAR exemption.  Since there is no indication that petitioner’s mother resides at the Campbell Boulevard address, the STAR exemption supports petitioner’s contention that the address is his primary residence.  Moreover, petitioner explains that the Sweet Home Road address is a property he is working on, which he does not own.

Accordingly, I find that respondent’s residency determination is not supported by the record and must be set aside as arbitrary and capricious.

THE APPEAL IS SUSTAINED.

It IS ORDERED that respondent allow Emily, Marianna and William Watson, III to attend school in the Starpoint Central School District without the payment of tuition.

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