Appeal of CHRISTINE and PETER FIETTA, on behalf of their son CHRISTOPHER, from action of the Board of Education of the Fayetteville-Manlius Central School District regarding residency.

Decision No. 16,444

(January 7, 2013)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Miles G. Lawlor, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Fayetteville-Manlius Central School District (“respondent”) that their son, Christopher, is not a district resident entitled to attend its schools tuition-free.  The appeal must be sustained.

Petitioners own two houses: one located within respondent’s school district (“in-district address”), and one outside the district (“out-of-district address”).  Petitioners aver that, in addition to these two houses, they also own properties in other areas of the state and operate a real estate business at the out-of-district address.  The record indicates that respondent previously challenged petitioners’ residency, but no action was taken to deny residency until 2011.

In April 2011, respondent conducted surveillance of the out-of-district address on 12 weekday mornings between approximately 7:00 a.m. and 8:15 a.m.  On 11 of these mornings, petitioners were observed exiting the out-of-district address and transporting Christopher to school.  In May 2011, respondent conducted surveillance of the in-district address on 14 weekday mornings between approximately 7:15 a.m. to 8:15 a.m.  During this time, the family and their vehicles were never observed at such address; however, on two mornings, trash cans were observed at the end of the driveway.  On one morning, the investigator observed tire tracks in the driveway and noted that they came from or were headed west, away from respondent’s district.  The record indicates that the in-district address cannot be fully observed from the end of the driveway, which is where the surveillance was conducted.

By letter dated July 13, 2011, respondent notified petitioners that Christopher was not a district resident entitled to attend its schools tuition-free.  A residency meeting was scheduled for August 1, 2011.  Petitioners did not attend.  Rather, petitioners’ attorney submitted documentation in support of their in-district residency.  This documentation included Peter’s pilot’s license, both petitioners’ drivers licenses, certification of their voter registrations in the district, and their joint 2010 federal tax return, all listing the in-district address as their residence. 

By letter dated August 8, 2011, respondent advised petitioners that it had reviewed their documentation, but had determined that, although it did not dispute that they owned the in-district address, they did not actually live at such address.  This appeal ensued.  Petitioners’ request for interim relief was granted on September 9, 2011. 

Petitioners claim that they are self-employed and own, operate, lease and maintain various commercial properties in the central New York area.  The out-of-district address serves as the office out of which they operate their business.  They aver in their petition that, between the fall of 2010 and “approximately the end of calendar year 2010,” Christine was caring for her elderly mother at the out-of-district address.  Petitioners explain that, during the rest of the 2010-2011 school year, Christine cared for her mother in the New York City area.  In Christine’s absence, Peter and Christopher “predominantly” stayed at the in-district address, but continued to travel back and forth between the in-district (home) and the out-of-district (office) address to handle the affairs of the business. 

Petitioners admit in their petition, however, that due to business and family health needs, they stayed at the out-of-district address frequently during such time.  Petitioners further claim that they stayed at this address temporarily and that they intend to continue to permanently reside at the in-district address. For purposes of this appeal, petitioners have submitted additional documentation in support of their residency including, among other things, a Social Security benefits letter, insurance cards, medical and other bills identifying the in-district address as petitioners’ residence.  They have also submitted a 2010-2011 school tax bill evidencing a STAR exemption for the in-district address, which is available only on a taxpayer’s primary residence. 

Additionally, petitioners submit a Certificate of Appointment of Administrators filed with the Surrogate’s Court on or about January 14, 2011, listing Peter as the fiduciary of his mother’s estate and the in-district address as his mailing address.  They have also submitted documentation indicating participation in a town historical society and a letter from the town supervisor indicating their attendance at town meetings.

Respondent contends that petitioners have permanently relocated to the out-of-district address and do not intend to reside at the in-district address, but are maintaining such address solely for purposes of establishing residency for school attendance purposes.  

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).

For purposes of the statute, a person can only have one legal residence (seeAppeal of O’Herron, 41 Ed Dept Rep 1, Decision No. 14,591) and 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 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).

In this case, there is no dispute that petitioners own two homes – one in the district and another outside the district.  The central issue is which of the two addresses serves as petitioners’ legal residence.  To support its position that petitioners are not district residents, respondent relies on its surveillance evidence, which indicates that Christopher was driven to school from the out-of-district address on several occasions in April 2011 and that petitioners were not observed at the in-district address on several weekday mornings in May 2011.

However, petitioners have provided several explanations for their temporary absences from the in-district address that are consistent with the surveillance evidence.  As described above, petitioners state that they operate their business from the out-of-district address and that, from the Fall until approximately the end of 2010, Christine stayed at the out-of-district address to care for her mother.  Petitioners explain that the out-of-district address was “best suited” for such care because it “provided first floor living, wheel chair accessibility and sufficient living space.”  Petitioners further assert that, as of approximately the end of 2010, Christine’s mother required care in New York City area hospitals and facilities, so Christine began to stay in New York City to assist her mother.

In response to respondent’s April and May 2011 surveillance evidence, petitioners state that during this time Peter and Christopher primarily stayed at the in-district address and left early in the morning – before the surveillance commenced each day – in order to return to the out-of-district address to work on the family business together[1] and/or so that Christine could drive Christopher to school when she was not in New York City with her mother.  Petitioners further explain that the home at the in-district address “is located in the middle of 80 acres, heavily secluded and has approximately a 2,400 foot length driveway ... so no one is able to observe our residence (or any activity on or about our residence) from the roadway.”

Respondent claims that petitioners’ explanations are not credible.  For example, respondent contends that petitioners’ attempt to explain the April 2011 surveillance is undercut by their statement in the verified petition that Christine cared for her mother at the out-of-district address only until the end of 2010.  However, the record indicates that petitioners’ living arrangement continued thereafter as petitioners also assert that, after Christine’s mother was admitted to a medical facility in New York City, Christine returned to central New York in late March 2011 “and stayed there until approximately the end of April, 2011 and thereafter I went back and forth between central New York and New York City.”  Petitioners also acknowledge that, when Christine returned to central New York during this time, she slept at both the in-district and out-of-district addresses.  While petitioners’ living arrangements and patterns may be non-traditional, their explanations are consistent with the surveillance and with their assertions in the petition that they run their own business and do not have “the typical employment arrangements of a 9 am to 5 pm job.”

Petitioners also submit several forms of documentary evidence – including a tax return, their drivers’ licenses and vehicle registrations, and evidence of their 2010-2011 STAR exemption – listing the in-district address.  Respondent correctly notes that, generally, documentary evidence indicating the use of an in-district mailing address is not dispositive where contrary surveillance evidence exists that is not otherwise refuted or explained (seee.g., Appeal of Stewart, 47 Ed Dept Rep 92, Decision No. 15,637).  However, as described above, in addition to their documentary evidence, petitioners have provided explanations that are consistent with respondent’s surveillance evidence and respondent points to no evidence other than the surveillance to indicate that petitioners do not reside at the in-district address.

Therefore, on this record, the surveillance evidence is not sufficient to rebut petitioners’ evidence that they reside at the in-district address.  Thus, I find that respondent’s determination that petitioners are not district residents is based on insufficient evidence and is, therefore, arbitrary and capricious.  On this record, petitioners have established residency in respondent’s district.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Christopher Fietta to attend school in the Fayetteville-Manlius Central School District without the payment of tuition.

END OF FILE.