Appeal of NA’IL KARZOUN, on behalf of his children ENIS and JENNA, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,230

(June 3, 2011)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Andrew J. Freedman, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner challenges the determination of the Board of Education of the Williamsville Central School District (“respondent”) that his children, Enis and Jenna, are not district residents.  The appeal must be dismissed.

Petitioner owns a house within respondent’s district (“Williamsville address”) from which Enis and Jenna were enrolled and attended school.  In or about June 2010, petitioner and his children left the United States, planning to travel abroad for approximately one year.  During this time, petitioner rented the in-district house pursuant to a lease that expires on or about May 31, 2011.  However, in approximately September 2010, petitioner returned from his trip and enrolled his children in respondent’s schools, stating that he again was residing at the Williamsville address.

The district’s residency concerns arose from a telephone call received from one of petitioner’s neighbors.  The caller indicated that petitioner did not reside at the Williamsville address but his children were dropped off each morning and picked up every afternoon there for transportation to and from respondent’s schools.

Based on this information, a residency investigation was initiated.  By letter dated November 2, 2010, respondent’s coordinator of student services (“coordinator”) provided petitioner with the opportunity to submit proof of residency within the district.  Simultaneously, in November 2010, a district investigator conducted surveillance and observed petitioner and his children at an address outside the district.  By letter dated November 8, 2010, petitioner admitted that he and his children were living with his brother and mother in his brother’s house outside the district.  However, petitioner claimed it was only temporary and he would be returning to the Williamsville address.

By letter dated November 17, 2010, the coordinator informed petitioner that she had determined that he and his children were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 8, 2010.

Petitioner alleges that he is temporarily residing with his brother outside the district and that the Williamsville address is his permanent residence.  Petitioner contends that the tenants at the Williamsville address have been notified that they will be evicted and that, in any event, the lease expires on May 31, 2011.  Petitioner contends that respondent’s residency determination is arbitrary and capricious.

Respondent contends that its residency determination is in all respects proper.

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 residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  To determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

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).

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).

Petitioner has failed to establish that he is a district resident.  He admits that he resides outside the district and, thus, is not physically present there.  Although he claims his absence is temporary, the record does not demonstrate the requisite intent to reside in the district.  As noted above, to determine one’s intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family’s continuing ties to the community and their efforts to return (Appeal of Hussain, 46 Ed Dept Rep 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450; Appeal of Castro, 45 id. 88, Decision No. 15,266).  Petitioner left the district and rented out his house.  Petitioner’s November 8, 2010 letter stated that his decision to proceed with eviction was due to problems with the tenants, rather than an existing intent to return to the district.  Petitioner states that his tenants have been put on notice by his property management company that they will be evicted for nonpayment of rent.  However, the notices to the tenants are conditional and, if rent is paid, petitioner would not have any right to occupy the premises prior to the expiration of the lease.  Moreover, petitioner has failed to provide any proof that formal eviction proceedings have been initiated.  Since the lease term ended on May 31, 2011, petitioner presumably is now free to return to his Williamsville address, though there is no evidence in the record that he has done so.

In sum, on this record, I find that petitioner has failed to demonstrate that respondent’s residency determination is arbitrary or capricious.

Although the petition must be dismissed, I note that petitioner has the right to reapply to the district for his children’s admission if circumstances change and to present any new information for the district’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE.