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Decision No. 17,019

Appeal of DURWARD BROWN, on behalf of his daughter ANGELINA, from action of the Board of Education of the City School District of the City of New Rochelle regarding residency.

Decision No. 17,019

(December 20, 2016)

Bond, Schoeneck & King, attorneys for respondent, Ayanna Y. Thomas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New Rochelle (“respondent”) that his daughter, Angelina, is not a district resident.  The appeal must be dismissed.

During the 2014-2015 school year, petitioner registered Angelina in respondent’s schools based on his alleged residence on Glenwood Avenue (the “Glenwood address”), within the district.  By letter dated April 17, 2015, respondent’s director of pupil services (“Director”) notified petitioner that, following an investigation, it was determined that Angelina was not a district resident and she would therefore be excluded from the district’s schools.

Despite the April 2015 residency determination, petitioner reenrolled Angelina in respondent’s schools for the 2015-2016 school year, based on his claim that Angelina still resided at the Glenwood address.  When respondent was unable to verify his residence by home visit, petitioner explained that he was purchasing a home at Gaby Lane, within the district, but was living, in the meantime, at the Glenwood address.  Upon receiving this new information, respondent’s attendance teacher visited the Glenwood address a second time and no one answered the door.

In November 2015, petitioner indicated to respondent that he and Angelina resided on Pinebrook Boulevard, within the district (the “Pinebrook address”).  While he was able to provide limited paperwork including an interim driver’s license to establish residency, he was unable to produce a lease.  On December 3, 2015, at 7:15 p.m. and on December 4, 2015, at 7:19 p.m. (which were within the times petitioner stated that he would be available for a home visit), respondent again attempted two home visits.  According to respondent, at those times, the Pinebrook address was “pitch dark” and appeared to be abandoned.  Respondent was also able to determine that the owners of the property had relocated to another state and that the water had been turned off in the Pinebrook address since April 2014.

By letter dated December 9, 2015, the Director notified petitioner of his right, prior to a final residency determination, to submit information concerning Angelina’s right to attend district schools.  In response, petitioner submitted several documents reflecting his residence at the Pinebrook address: a paystub, an Optimum cable bill and a temporary driver’s license issued on January 7, 2016.  Petitioner also submitted a portion of a Family Court order stating that petitioner should be permitted to enroll Angelina in “his school district” and that Angelina shall be permitted to attend school in New Rochelle.

Because the district remained concerned about petitioner’s residency, a “Comprehensive Person Report” was ordered based on a search of public records.  This report indicated that petitioner’s address is in the Bronx rather than New Rochelle (the “Bronx address”).  As a result of this report, respondent’s attendance teachers made multiple visits in the mornings, evenings and weekends to the Bronx address and observed what they determined to be petitioner’s vehicle parked there on all of their visits. 

By letter dated January 26, 2016, the Director notified petitioner of her determination that Angelina was not a district resident and would be excluded from respondent’s schools effective February 10, 2016.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 23, 2016.

At the time of the appeal, petitioner asserted that he resides in the district at the Pinebrook address but that he was in negotiations to purchase a home on Weaver Street, also within respondent’s district.  Petitioner maintains that he has a dispute with his landlord and therefore is unable to acquire a lease document for the Pinebrook address.  Petitioner contends that school officials refused to inform him in advance of the time of their home visits and that this was not fair.  Petitioner maintains that he owns the Bronx property where his elderly father resides and that he frequently visits him there.  Finally, petitioner contends that in early January 2016, Angelina was excluded from school for three days without prior notification.

Respondent maintains that petitioner and his daughter are not district residents.

Education Law §3202(1) provides, in pertinent part, as follows:

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).

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).

Pending home construction does not, in and of itself, establish residency (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

The pivotal issue in this appeal is whether or not petitioner has met his burden of proving that he and his daughter are physically present and intend to reside in the district.  The record reflects that petitioner has, at different times, indicated that he and Angelina reside or intend to reside at four different locations within the district:  the Glenwood address, Gaby Lane, the Pinebrook address, and Weaver Street.  The only proof of residency submitted by petitioner, other than his own conclusory statements, are a pay stub, an Optimum cable bill and a temporary driver’s license issued on January 7, 2016, referencing the Pinebrook address as his residence.  He submits no documentary evidence at all with respect to the other locations, and the documents submitted are not dispositive of his residence at the Pinebrook address.  Likewise, the partial copy of the court order submitted by petitioner is not dispositive of residency.  The court order provides:  “that on consent that [petitioner] shall be permitted to enroll [Angelina] in his school district and [Angelina] to attend school in New Rochelle ....”  By its terms, the court order presupposes that petitioner is a district resident who will enroll Angelina in “his school district.”  On this record, I do not find that these documents adequately establish petitioner and his daughter’s physical presence in the district or continuing ties to the community demonstrating that petitioner and his daughter are district residents.

Respondent’s evidence indicates that respondent was not able to verify petitioner and his daughter’s presence at the Pinebrook address.  Respondent submits evidence of home visits made to petitioner’s alleged in-district address, at which petitioner and his daughter were not present, and the property appeared vacant.  Respondent also submits information that the owner of the Pinebrook address had relocated to another state and that the water had been turned off in April 2014, making the premises uninhabitable.  Petitioner has not submitted a reply and has offered no evidence or explanation to refute respondent’s allegations that the Pinebrook address is a vacant, abandoned property at which the water supply has been turned off.  Respondent also provides surveillance evidence of an out-of-district residence in the Bronx, which petitioner owns.  On multiple occasions respondent’s attendance teachers observed petitioner’s vehicle at this residence in the mornings, evenings, and weekends.  Given the scope of the surveillance evidence, petitioner’s explanation that he frequently visits his father, who resides there, is not compelling.

In sum, the evidence in the record is insufficient for me to conclude that respondent acted arbitrarily or capriciously in determining that petitioner and his daughter do not reside in respondent’s district.  Petitioner has failed to carry his burden of proof.

Finally, I am compelled to comment on respondent’s compliance with the procedures set forth in §100.2(y) of the Commissioner’s regulations for making residency determinations, generally.  Prior to making a final residency decision, a parent or guardian must be afforded an opportunity to present information regarding the residency issue.  When a board or its designee determines that a child is not entitled to attend its schools due to non-residency, §100.2(y) provides that the board or its designee shall, within two business days, provide written notice to the child’s parent.  Here, the Director’s December 9, 2015 letter informed petitioner of his right to provide information in support of Angelina’s residency by December 23, 2015.  The record indicates that petitioner provided limited information in response to this letter.  However, according to petitioner, on January 4, 2016, he was verbally told by the school’s attendance secretary to pick up Angelina and that she would no longer be permitted to attend respondent’s schools.

Although Angelina was permitted to reenroll in respondent’s schools three days later, it was not until January 26, 2016, that the Director provided petitioner with written notice of her determination that Angelina would be excluded from school effective February 10, 2016.  Accordingly, it appears from the sequence of events that respondent initially failed to comply with the procedures required by §100.2(y).  However, petitioner has not requested any relief with respect to this error, the error was corrected and petitioner’s daughter was permitted to remain in attendance until February 10, 2016, the date provided in the Director’s January 26, 2016 letter.

THE APPEAL IS DISMISSED.

END OF FILE