Decision No. 17,023
Appeal of LYDIA and TERRANCE STRICKLAND, on behalf of their children, from action of the Board of Education of the Clarkstown Central School District regarding residency.
Decision No. 17,023
(January 10, 2017)
The Law Offices of Jerrold W. Miles, attorneys for petitioners, Jerrold W. Miles, Esq., of counsel
Jaspan Schlesinger LLP, attorneys for respondent, Warren E. Berbit, Esq., of counsel
ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Clarkstown Central School District (“respondent”) that their children are not district residents. The appeal must be dismissed.
Two of petitioners’ children were previously registered within the district several years prior to the events relevant to this appeal. The students were registered using an address in Nanuet, New York (the “in-district address”).
On June 12, 2013, petitioners attempted to register their third child in respondent’s district using the in-district address. However, respondent had previously received a registration request on May 16, 2013 from another family which identified the same in-district address. The district subsequently initiated an investigation into petitioners’ children’s residency.
In a letter dated January 21, 2014, the district’s manager of business services informed petitioners that a preliminary determination had been made that the students were not district residents. In support of this determination, the manager of business services stated that: (1) petitioners owned, and claimed a school tax relief (“STAR”) exemption for, a residence in Spring Valley, New York (the “out-of-district address”); (2) the home telephone number for the out-of-district address was registered to Mrs. Strickland; (3) petitioners’ vehicles were registered to the out-of-district address; and (4) petitioners were registered to vote at the out-of-district address, and Mrs. Strickland voted under this registration in 2012. The manager of business services invited petitioners to submit evidence regarding their residency by January 31, 2014.
On January 30, 2014, Mr. Strickland met with the district’s assistant superintendent and manager of business services to discuss the students’ residency. At this meeting, Mr. Strickland claimed that he did not know what a STAR exemption was and that he had no knowledge of claiming such an exemption. Mr. Strickland further indicated that he occasionally stayed at the out-of-district residence, and that members of his family have used it at different times over the years. When asked why his youngest child’s birth certificate indicated that Mrs. Strickland lived at the out-of-district address, Mr. Strickland did not provide an explanation. The manager of business services avers that Mr. Strickland’s responses were “unconvincing,” “difficult ... to believe,” and at times contradictory. Mr. Strickland provided the district with a water bill addressed to his wife at the in-district address and stated that he had no other evidence to refute the district’s contentions.
In a letter dated February 11, 2014, the manager of business services informed petitioners of the district’s determination that the students were not district residents and that their last day of school would be February 21, 2014. This appeal ensued. Petitioners’ request for interim relief was denied on February 27, 2014.
Petitioners contend that they and the students reside at the in-district address and submit documentary evidence which, they argue, constitutes sufficient proof of residency. Petitioners additionally submit affidavits which assert that they and the students reside at the in-district address. Petitioners request a determination that their children are district residents entitled to attend respondent’s schools tuition-free.
Respondent contends that its determination is supported by the evidence in the record and that petitioners have failed to demonstrate a clear legal right to the relief requested. Respondent argues that petitioners have not explained or refuted the evidence upon which it relied, and that the evidence submitted by petitioners on appeal was only recently generated in order to create the appearance of residency at the in-district address.
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).
As a preliminary matter, I note that the district’s manager of business services made several adverse credibility determinations against Mr. Strickland at the January 30, 2014 meeting. Petitioners do not address these credibility determinations in their petition. Even assuming that they had, I would not substitute my judgment for that of local school officials on an issue of credibility (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,533).
On this record, petitioners have not met their burden of proving that respondent’s determination was arbitrary or capricious. In reaching its determination, respondent relied upon the fact that petitioners claim a STAR exemption on the out-of-district address; that petitioners are registered to vote at the out-of-district address; that Mrs. Strickland, in fact, voted using the out-of-district address in 2012; that the home telephone at the out-of-district residence is listed under Mrs. Strickland’s name; that one of the family’s vehicles is registered at the out-of-district residence; and that petitioners’ youngest child’s birth certificate indicates that Mrs. Strickland lives at the out-of-district address. Petitioners do not refute or respond to these contentions on appeal.
Moreover, the evidence submitted by petitioners on appeal is not sufficient to rebut respondent’s evidence. Copies of voter registration cards (issued in 1997 and 1988) and a pistol license (issued in 2002) are too far removed from the underlying events of this appeal to be probative of petitioners’ residency. Moreover, the voter registration cards pre-date petitioners’ purchase of the out-of-district address in 1998. Petitioners also submit undated affidavits which offer conclusory assertions that petitioners and the students reside at the in-district address. I find these undated assertions of limited probative value in determining petitioners’ residence.
Some evidence submitted by petitioners, while entitled to some weight, does not compel a contrary conclusion. For instance, it appears that Mrs. Strickland entered into a lease agreement with her mother in January 2013 whereby Mrs. Strickland agreed to pay $1,900 per month to rent the in-district address. Petitioners also submit a water bill covering a period from August 2013 through November 2013 addressed to Mrs. Strickland which identifies the in-district address. However, these documents do not demonstrate petitioners’ residency within the district (cf. Appeal of Mays, 55 Ed Dept Rep, Decision No. 16,822; Appeal of Correa, 50 id., Decision No. 16,154). 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). Petitioners do not allege that they moved into the in-district residence following execution of the lease in January 2013, nor do they explain respondent’s evidence of their continued connection to the out-of-district residence.
Additionally, while the record contains information that certain information pertaining to vehicles owned by petitioners is connected to the in-district address (i.e., petitioners’ driver’s licenses, vehicle registrations, and a car insurance policy), respondent correctly observes that most of these documents were generated shortly after petitioners’ residency was questioned. For example, Mr. Strickland’s driver’s license and two vehicle registrations were obtained on January 31, 2014, and petitioners’ car insurance policy took effect on February 1, 2014. Under these circumstances, I do not find this evidence persuasive with respect to petitioners’ residency (see e.g., Appeal of Alvarez, 54 Ed Dept Rep, Decision No. 16,661; Appeal of Friedman, 50 id., Decision No. 16,173). Accordingly, I find that petitioners have failed to meet their burden and that respondent’s determination is supported by the evidence in the record.
Therefore, on this record, respondent’s determination that the students are not district residents must be upheld. I note that petitioners retain the right to reapply to the district for their children’s admission at any time and to present any new information for respondent’s consideration pursuant to 8 NYCRR §100.2(y).
THE APPEAL IS DISMISSED.
END OF FILE
 The record does not contain a copy of the youngest child’s birth certificate. However, I note that the record contains birth certificates for two of petitioners’ children, issued in 1999 and 2001, which indicated that Mrs. Strickland lived at the out-of-district address.
 The record indicates that, at the January 30, 2014 meeting, Mr. Strickland represented that he possessed no other documents which demonstrated his residency. Although petitioners now submit additional evidence which was not presented at the January 30, 2014 meeting, respondent has not objected to admission of this evidence and does not seek remand on this basis. Therefore, since the matter is now before me and respondent has had ample opportunity to respond to petitioner’s evidence in its answer, I will address the merits.
 An affidavit submitted by a personal friend of petitioners contains what appears to be a handwritten date on which it was sworn, but this date is illegible.
 A bank check identifying the in-district address is similarly of limited probative value as it is undated.
 I note that Mr. Strickland had previously submitted a copy of his driver’s license to the district in connection with registering one of his children, and that this license was due to expire on May 20, 2013.