Appeal of IRENE and RICARDO VELAZQUEZ from action of the Board of Education of the Floral Park-Bellerose Union Free School District regarding a school district boundary.

Decision No. 16,474

(April 26, 2013)

The Law Offices of Fausto E. Zapata, Jr., P.C., attorneys for petitioner, Fausto E. Zapata, Jr., Esq., of counsel Kevin A. Seaman, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioners appeal the decision of the Board of Education of the Floral Park-Bellerose Union Free School District (“respondent”) to deny their request to admit their grandson to its schools pursuant to Education Law §3203. The appeal must be dismissed.

Petitioners own and reside on property intersected by the boundary line between the Floral Park-Bellerose Union Free School District and the New York City School District. The house on the property consists of three separate units in which various relatives of petitioners also reside. The boundary between the school districts intersects petitioners’ property through a garage.

Petitioners’ daughter also lives in the house and attempted to register her son in respondent’s schools in April 2011, but the student was denied admission. On June 8, 2011, petitioners filed a formal designation of school district with respondent’s district clerk, pursuant to Education Law §3203, selecting Floral Park-Bellerose as the district of attendance for students residing on their property. By letter dated July 20, 2011, respondent’s attorney notified petitioner of respondent’s decision rejecting petitioners’ designation of Floral Park-Bellerose as the selected district. This appeal ensued. Petitioners’ request for interim relief was denied on September 2, 2011.

Petitioners contend that, because the school district boundary intersects their property -specifically, the garage -they are entitled to designate respondent’s district as the school district of attendance for any student residing on the property, pursuant to Education Law§3203. As such, petitioners seek a determination that their grandson may attend respondent’s schools without the payment of tuition. Respondent maintains that petitioners are not entitled to designate a school district of attendance pursuant to Education Law §3203. Respondent asserts that petitioners reside in a multi-family dwelling and, thus, Education Law§3203 requires that the boundary line intersect the actual dwelling. Respondent claims that the boundary goes through a detached garage which is not part of petitioners’ dwelling. I must first address a procedural matter. A memorandum of law should consist of arguments of law (8NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings(Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84,Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Petitioners’ memorandum of law includes new factual assertions that are not part of the verified petition they submitted. Therefore, while I have reviewed petitioners’ memorandum, I have not considered those portions containing new allegations that are not set forth in their verified pleading.

Turning to the merits, in an appeal to the Commissioner, a petitioner has the burden of demonstrating clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Education Law §3203(1) provides:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation on or before August first in any year and thereafter ... and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

In their petition, petitioners claim that they live in an “owner-occupied single family dwelling unit” and, therefore, the boundary line need only intersect the property on which the dwelling is located. Petitioners’ assertion is not supported by the record. Their July 14, 2011 letter to respondent’s counsel states that “Mr. and Mrs. Velazquez live in a multi-family dwelling...” Although they contend that the nature of the relationship between the families living in the structure makes it “more like” an owner-occupied single family dwelling, familial relationship is not the determinative factor. Respondent’s answer indicates that the structure “is comprised of three separate and distinct living units possessing kitchen units, etc....” Petitioners do not submit any reply or otherwise refute respondent’s allegations. On this record, I find that petitioners’ dwelling is a multi-family dwelling and not an owner-occupied single family dwelling unit within the meaning of Education Law §3203. Therefore, to be entitled to designate respondent’s district as the district of attendance pursuant to Education Law §3203, the boundary line must intersect the dwelling itself.

In the alternative, petitioners contend that the boundary line does, in fact, intersect their dwelling, arguing that the garage through which the boundary runs should be considered part of the dwelling unit, as it serves as an “integral part of the house and home.” Respondent asserts that the garage is a separate detached structure that cannot be considered part of petitioners’ dwelling in this instance. As such, respondent claims petitioners are not entitled to make a designation under Education Law §3203.

Both parties rely on Matter of Muller, 75 St Ed Dept Rep 29, Decision No. 5,901, in which the boundary intersected a garage that was connected to the dwelling by a breezeway. In that case, the garage was considered to bean “integral part” of the dwelling and the boundary, thus, was deemed to intersect the dwelling. Muller noted, however, that if the garage was a separate structure from the house, the result would be different. In this instance, I find that the garage is a detached, separate structure. In their petition, petitioners state that the garage “is located only a few feet from the house. The plans that petitioners submit as an exhibit show the garage as a separate structure, unattached to the dwelling by any connecting structure, such as the breezeway existing in Muller. Petitioners’ circumstance is, thus, distinguishable from Muller.

Petitioners argue that, nevertheless, the family utilizes the garage as an extension of their kitchen, as it includes two freezers and a pantry area. I find petitioners’ argument to be unpersuasive. The determination whether a garage is an integral part of a dwelling does not turn solely on the use of the garage. Instead, the analysis must be primarily based upon the degree of physical integration of the garage as part of the structure of the dwelling (see Matter of Muller, 75 St Ed Dept Rep29, Decision No. 5,901; Appeal of Olgeaty, 18 id. 256,Decision No. 9,830). Indeed, the use of a garage could change from time to time and, thus, is not dispositive. In this instance, the required structural integration between the garage and the living quarters/dwelling owned is not present. On this record, I cannot conclude that the garage in this instance is an integral part of petitioners’ dwelling. Therefore, petitioners are not entitled to make a designation of school district pursuant to Education Law§3203.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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