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Decision No. 16,173

Appeal of MICHELLE FRIEDMAN, on behalf of her son NOAH, from action of Dr. Valerie Kelsey, Superintendent of the Schalmont Central School District, regarding residency.

Decision No. 16,173

(December 7, 2010)

The Law Office of Bruce J. Donadio, Esq., attorneys for petitioner, Bruce J. Donadio, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of Dr. Valerie Kelsey, Superintendent of the Schalmont Central School District (“respondent”) that her son, Noah, is not a district resident.  The appeal must be dismissed.

Petitioner and her husband own a home in the Rotterdam-Mohonasen Central School District (“Mohonasen residence”), where Noah attended high school during the 2009-2010 school year.  According to petitioner, on or about March 10, 2010, she requested information from the Schalmont Central School District (“Schalmont” or “district”) regarding enrolling Noah in 12th grade for the 2010-2011 school year and was informed by district staff that two forms of residency proof would be required:  (1) a mortgage or rent receipt, and (2) a bill, showing the name and address of the student’s parent.

On or about June 29, 2010, petitioner met with a district guidance counselor to register Noah as a 12th grade student for the 2010-2011 school year.  Petitioner contends that she “provided all of the information required on the District’s official website”[1] and that Noah was registered and enrolled in specific classes.

Respondent explains in an affidavit that she began to question petitioner’s residency after she was informed by the varsity football coach that Noah was “likely to attempt to become a resident of Schalmont so that he could join our football team.”  According to respondent, a “successful challenge to the eligibility of a player under the rules of the New York State Public High School Athletic Association might result in the forfeiture of all the team’s victories.”  Based on such concerns, respondent asked petitioner to submit an “Affidavit of Parent” form in July 2010.  According to petitioner, respondent informed her that this was “normal procedure” for registering a new student.

On the form, petitioner stated that, on July 1, 2010, she and Noah began residing in an apartment in Schalmont (“Schalmont residence”), for which she had secured a one-year lease.  Petitioner explained that her husband would continue to live at the Mohonasen residence “because of lack of room” in the Schalmont residence, that Noah would “visit (not live) the [Mohonasen] address to do laundry and check/use internet for school work” and that petitioner would “visit” the Mohonasen residence for “internet purposes and for [a] small business I run out of” that residence.  According to petitioner, the purpose of this living arrangement was so that Noah could “attend Schalmont High School for his senior year” and graduate with his friends and for academic and “other social reasons.”

On July 26, 2010, petitioner and her husband met with respondent to discuss petitioner’s residency.  Respondent submitted a transcript of this meeting, during which petitioner stated that she planned to live in Schalmont until July 2011.[2] Petitioner also stated that the purpose of the move was because Schalmont’s schools would be “most beneficial” for Noah’s senior year both socially and academically.  Petitioner also explained that if she was “doing this for football reasons, there would be many other schools that would be much better choices.”

By letter dated July 26, 2010, respondent informed petitioner that Noah was not a district resident and was therefore not entitled to attend respondent’s schools tuition-free.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 18, 2010.

Petitioner argues that she is a district resident and that Noah is entitled to attend the district’s schools tuition-free.  Petitioner also maintains that she provided sufficient proof of residency in accordance with information provided by Schalmont’s staff and website.

Respondent contends that the appeal must be dismissed for failure to state a claim upon which relief can be granted.  Respondent admits that petitioner rents an apartment within the district but contends that she does not intend to reside there permanently and that her stay in the district is merely for the purpose of allowing Noah to play football.  Respondent asserts that petitioner retains her primary residence in Mohonasen with her husband and that her determination was not arbitrary and capricious.

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

To support her residency claim, petitioner has produced a copy of a one-year lease agreement (July 1, 2010 until June 30, 2011) for the Schalmont residence reflecting a monthly rent of $615.00.  Petitioner has also produced the following documentation:  (1) a rent receipt and a security deposit receipt for the Schalmont residence, both dated May 26, 2010; (2) a letter from a utility company indicating that, as of June 24, 2010,[3] electrical service was provided to petitioner at the Schalmont residence; (3) a cable/internet service receipt dated August 5, 2010 listing the Schalmont residence as petitioner’s address; and (4) copies of petitioner’s and Noah’s August 5, 2010 applications to change their address on their driver’s licenses to the Schalmont residence.

However, 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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).  The central issue in this appeal, therefore, is whether petitioner intends to permanently reside in the district.

Respondent maintains that the reason petitioner is trying to establish residency is to take advantage of the district’s schools and that petitioner therefore does not intend to permanently reside in the district.  Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).  However, families may, and often do, establish residency based on their preference of school districts (Appeal of W.D. and P.Z-D., 44 Ed Dept Rep 77, Decision No. 15,104).  This is not to be confused with situations in which parents rent or purchase property in a district for the sole purpose of having their children attend district schools without intending to become district residents (seeAppeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).

In the instant appeal, petitioner admits that the purpose of this living arrangement was so that Noah could “attend Schalmont High School for his senior year” and graduate with his friends and for academic and “other social reasons.”  Respondent notes that, at the July 26, 2010 meeting, petitioner stated that she intends to live at the Schalmont residence until July 2011, after Noah’s graduation, at which time she plans to return to the Mohonasen residence.  Respondent also explains that, taken together, the circumstances surrounding petitioner’s move to Schalmont raised questions as to petitioner’s intent to permanently reside in the district:

I had such questions due to the fact that participation in our football program seemed to be a motivating factor in the purported change of residence; the fact that Noah was a senior in high school and there was no indication that [petitioner] would remain at such address after his graduation ...; the fact that there was no issue between [petitioner and her husband] (such as divorce or legal separation) that was causing the change of location; the fact that laundry and internet use would take place at the residence [petitioner] jointly owns with her husband in Mohonasen ...; the fact that [petitioner] would be continuing to run her small business out of [the Mohonasen] location ...; and the fact that [petitioner] and her husband were keeping the Mohonasen home because there was a lack of space in the Schalmont apartment....

To the contrary, in her verified petition, petitioner claims that her lease runs through July 31, 2011[4] and that she therefore has the “intent to reside and is legally obligated to pay rent, for periods of time beyond the school year.”  Petitioner also asserts that, because Noah will be completing his senior year in June 2011 and has “not made a decision regarding his college career,” she is “unable to state whether [she] will renew” her lease or “seek an alternate residence following the conclusion” of the lease.  She further states that she “does not own a ‘business’ per se,” and explains that she had previously attempted to supplement her income by selling spices at home parties, but has “essentially discontinued” such business.  Aside from her conclusory assertions, however, petitioner has submitted no evidence to support her claims that she intends to permanently reside at the Schalmont residence.

The record also indicates that, except for the lease and rent/security deposit receipts, the documents produced by petitioner are dated after her residency was questioned.  Indeed, the documentation of cable/internet service at the Schalmont address and driver’s license change-of-address applications actually post-date respondent’s July 26, 2010 residency determination.  Respondent also points out that, although petitioner has submitted a bank document listing the Schalmont residence as her address, this document states that an “Alternate Address Exists.”

While the record indicates that petitioner has leased an apartment in the district for which she has established certain utilities, she has not met her burden of establishing that she intends to remain there permanently.  Therefore, under the circumstances presented in this appeal, I cannot conclude that respondent’s determination was arbitrary or capricious.

Finally, petitioner appears to argue that, because she relied upon information provided by the district’s website and staff in obtaining documentation to support her residency claim, respondent should be estopped from denying Noah admission to the district’s schools as a resident student.  The record in this case indicates that respondent, as the board’s designee, is ultimately responsible for making residency determinations (see 8 NYCRR §100.2[y]).  As respondent notes, she “is not precluded from seeking additional information in [making such determinations] when valid questions arise.”  As a result, even though district staff may have provided guidance regarding the types of documentation that might be provided to establish residency, that does not mean that respondent was bound to determine that petitioner is a district resident if petitioner submitted the types of documentation called for in the guidance.  Respondent’s obligation under §100.2(y) of the Commissioner’s regulations is to determine residency based on the totality of the evidence.  In any event, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Associates v. City of New York, et al., 71 NY2d 274; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Respondent’s website provides a list of “Information you will need” to register a new student, including “Two (2) Proofs of district residency (utility or telephone bill, rental agreement, tax bill, document from closing with the name & address together).”

[2] According to the transcript, petitioner’s husband stated at the meeting that he and petitioner do not claim a school tax relief (“STAR”) exemption on their Mohonasen residence.  However, respondent has produced a property tax receipt indicating that petitioner and her husband received a 2009-2010 STAR exemption on this property.

[3] Petitioner explains that this letter was sent to her at the Mohonasen address because “at the time [she] had service turned on [she] did not have access to the apartment yet.”

[4] Contrary to petitioner’s assertion, the record contains a copy of the lease agreement, which indicates that the lease expires on June 30, 2011.