Appeal of S.L., on behalf of his son L.L., from action of the Board of Education of the North Salem Central School District regarding residency.

Decision No. 17,187

(September 18, 2017)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Salem Central School District (“respondent”) that his son is not a district resident and, therefore, not entitled to attend respondent’s schools tuition-free.  The appeal must be dismissed.

The student attended respondent’s schools since preschool.  In the 2013-2014 school year, the student’s fifth-grade year, the student was registered with a home address in North Salem, New York (the “in-district address”).

On September 11 of that school year, a bus driver accidentally dropped the student off a block away from the in-district address.  The student did not know where he was or how to get home.  The student eventually encountered a woman sitting on a porch, who assisted him in contacting petitioner and returning home.

Thereafter, the district discovered that petitioner had applied for and received a School Tax Assessment Relief (“STAR”) exemption for an address in Brewster, New York (the “out-of-district address”), which the record indicates is owned by petitioner and the student’s mother.  After confirming that the STAR exemption remained in effect, the district contacted petitioner about the exemption.

In a letter to the superintendent dated September 20, petitioner indicated that he and his wife had separated and were living apart.  Petitioner confirmed that he had obtained a STAR exemption for the out-of-district address, but contended that his wife lived at the out-of-district address and that he and the student lived at the in-district address.

The district proceeded to conduct surveillance of the out-of-district address on seven separate mornings in October of that school year.  On each of the seven mornings, the district observed petitioner and the student leave the out-of-district address in a vehicle registered to petitioner.

On November 12th, the superintendent wrote to petitioner and informed him of his determination that the student did not reside within the district.  The superintendent indicated that he based his determination on the STAR exemption for the out-of-district address; the fact that the student’s grandmother, who was not the student’s legal guardian, resided at the in-district address; and the October surveillance evidence.  The superintendent stated that the student would be excluded from school at the end of the day on November 27th.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 3rd of that school year.

Petitioner contends that the student resides with him at the in-district address.  Petitioner states that he is separated from his wife, and avers that the student visits his mother three times per week during the week.  Petitioner further argues that he “submitted all required paper work” demonstrating that he and his son live at the in-district address.  Petitioner further contends that he only applied for a STAR exemption on the out-of-district address because it would result in a greater tax reduction.  Petitioner seeks a determination that the student is a resident of respondent’s district entitled to attend its school tuition-free.

Respondent argues that its residency determination is supported by the evidence in the record and that petitioner’s claims must be dismissed.

First, I must address a procedural matter.  Although not captioned as a reply, petitioner submitted a document which responds to certain contentions in respondent’s answer (“petitioner’s reply”).  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

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).

On this record, petitioner has not met his burden of proving that respondent’s determination was arbitrary or capricious.  In reaching its determination, respondent relied upon surveillance evidence and petitioner’s application for, and receipt of, a STAR exemption for the out-of-district address.  I do not find petitioner’s explanation of this evidence persuasive.  First, a STAR exemption may only be granted on a person’s primary residence (Real Property Tax Law §425[3]).  Second, respondent’s surveillance captured petitioner driving the student from the out-of-district address to school on seven different mornings in October.  While petitioner attempts to offer a belated explanation for this surveillance in his reply, I have not accepted these portions of the reply as they include factual allegations which should have been included in the petition (8 NYCRR §§275.3 and 275.14).  The superintendent specifically notified petitioner of the surveillance evidence in his November 12^th exclusion letter, stating that “[m]ultiple observations conducted throughout the month of October 2013 confirm that both you and [the student] reside at [the out-of-district address] ... and that you drive him to school from that location.”  Therefore, it was incumbent upon petitioner to refute such surveillance evidence in his petition.

However, even if I accepted petitioner’s belated explanation, it does not rebut respondent’s surveillance evidence.  In an affidavit submitted with petitioner’s reply, petitioner’s mother avers that, due to an illness, she temporarily moved to the out-of-district address with petitioner and the student “from the end of September 2013 and for most of the month of October.”  Petitioner’s mother further explains that, due to her illness, “we all thought it would be best to stay at [the out-of-district address] during this time that I could not care for my grandson after school while my son was at work.”  This statement, however, does not explain how or why it was advantageous for petitioner’s mother to relocate from the in-district address to the out-of-district address during this time.  In addition, the petition is silent about petitioner’s mother’s illness and indicates that petitioner’s wife, the student’s mother, resides at the out-of-district address.  Thus, I cannot conclude that the contentions or evidence submitted by petitioner’s mother rebut respondent’s evidence.

Petitioner submits the following information on appeal which identifies the in-district address: (1) an electric bill for the in-district address covering the period between October 2nd and October 30, 2013; (2) fencing membership cards for the student and petitioner dated October 11, 2012 and April 9, 2013, respectively; (3) a notice of exemption removal form dated October 28, 2013 removing the STAR exemption from the out-of-district address; (4) three state and local forms, each dated November 18, 2013, concerning transfer of the STAR exemption from the out-of-district address to the in-district address; (5) a November 1, 2013 invoice from a property management service; (6) an undated DD214 card recognizing petitioner’s registration as an honorably discharged veteran; (7) a school tax bill for respondent’s district for the 2013-2014 school year (i.e., July 1, 2013 through June 30, 2014); (8) an affidavit from the student’s mother; (9) a letter from the Town of North Salem assessor dated November 18, 2013; and (10) two signed statements from neighbors, dated November 21, 2013 and November 22, 2013, which contend that petitioner and the student have resided at the in-district address for several years.

I note that much of this evidence - in particular, the evidence reflecting petitioner’s change of the STAR exemption from the out-of-district address to the in-district address – postdates the period when petitioner’s residency was questioned in September 2013.  Therefore, I do not find this persuasive evidence of the student’s physical presence within the district (Appeal of Alvarez, 54 Ed Dept Rep, Decision No. 16,661; Appeal of Friedman, 50 id., Decision No. 16,173).

Furthermore, while the fencing membership cards, electric bill and school tax bill are entitled to some probative weight, they are of limited value in assessing the student’s physical presence within the district, especially when weighed against respondent’s surveillance evidence.[1]  Additionally, the unsworn and general statements of two neighbors indicating that petitioner and the student have lived at the in-district address for several years do not contradict or refute respondent’s evidence.  Therefore, based on the record before me, petitioner has failed to carry his burden of proving that he and the student reside within respondent’s district.

Finally, while not raised by the parties, it appears from the record that respondent failed to comply with the procedures required by 8 NYCRR §100.2(y).  Section 100.2(y)(6) of the Regulations of the Commissioner of Education provides, in pertinent part, that:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district....

In this instance, the record contains no evidence that the district afforded petitioner or the student’s mother the opportunity to submit information concerning the student’s right to attend the district's schools prior to the superintendent's November 12, 2013 determination.  I remind the district to comply with the procedures established in 8 NYCRR §100.2(y).

Although the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for his son’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.

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