Appeal of S.T.V., on behalf of his children E.S. and E.S., from action of the Board of Education of the Ardsley Union Free School District regarding residency.

Decision No. 17,371

(April 6, 2018)

Eugene R. Dougherty, Esq., attorney for petitioner

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ardsley Union Free School District (“respondent”) that his children (“the students”) are not district residents.  The appeal must be dismissed.

According to the record, petitioner first enrolled the students in respondent’s district in August 2015, identifying an address in Hartsdale, New York, which is located within respondent’s district (the “in-district address”).

On or about April 11, 2016, respondent’s assistant superintendent for business, facilities and operations (“assistant superintendent”) received an email from the principal of the elementary school one of the students attended.  The principal indicated that the student told her that she lived at an address in Yonkers, New York (the “out-of-district address”).  The record reflects that the out-of-district address is located within the geographical boundaries of the City School District of the City of Yonkers.

By letter dated April 12, 2016, the assistant superintendent informed petitioner that the district had reason to believe that the students did not reside within respondent’s district.

The assistant superintendent avers that, on April 14, 2016, petitioner called the assistant superintendent and admitted that he and the students did not live at the in-district address.  Petitioner further asserted that he purchased the in-district address in August 2015, and that it needed renovations.  Petitioner indicated that permits to renovate the home were pending.  Petitioner further stated that he and the students were living at the out-of-district address “because they were unable to sell the property.”  Subsequently, petitioner submitted several documents to respondent in support of his claim of residency within the district.

By letter dated April 21, 2016, the assistant superintendent concluded that the students did not live within respondent’s district, and that they maintained a “primary residence outside the boundaries” of respondent’s district.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 26, 2016.

Petitioner admits that he and the students live at the out-of-district address but asserts that they will “move in” to the in-district address “on a permanent basis . . . by the end of August [2016].”  Petitioner further contends that one of the students has asthma and, thus, cannot safely be present at the in-district address during any renovations.  Petitioner further ascribes his delay in moving into the in-district address to permit delays.  Petitioner seeks a determination that the students are entitled to attend respondent’s schools without the payment of tuition and a “refund” of tuition paid to respondent.

Respondent contends that the students live in Yonkers and, thus, are not legally entitled to attend school in its district.

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).

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).

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).

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).

Petitioner admits that he and the students do not reside within respondent’s district.  Petitioner bases his request for relief solely upon his stated intention of eventually moving to respondent’s district.  In light of petitioner’s admission that he lives outside of respondent’s school district and that the students live with him, I cannot find respondent’s determination that petitioner and the students are not district residents to be arbitrary or capricious.

Petitioner nevertheless argues that because he owns a home within respondent’s district, the students are entitled to attend respondent’s schools without the payment of tuition.  Although the record contains evidence that in or about September 2015, petitioner removed his School Tax Assessment Relief (“STAR”) exemption from the Yonkers residence, as well as several documents bearing the in-district address – including copies of the deed and mortgage statements, utility bills, 2015 income tax returns, and petitioner and his wife’s driver’s licenses – such documents are insufficient to establish residency.  As stated above, it is well-settled that the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not, in and of itself, 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). 

With respect to petitioner and his wife’s driver’s licenses, which bear the in-district address, I note that those documents were issued on April 19 and April 18, 2016, respectively.  Thus, the driver’s licenses post-date both the assistant superintendent’s April 12, 2016 letter informing petitioner that the district had reason to believe that the students did not reside within respondent’s district and petitioner’s April 14, 2016 phone call with the assistant superintendent to discuss his residency.  Moreover, while utility bills may constitute evidence of actual physical presence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827), the amounts listed on the utility bills submitted by petitioner herein - $23.14 for the August 25 – September 11, 2015 billing period and $28.39 for the February 12 – March 15, 2016 billing period – suggest extremely low utility usage at the in-district address, which undermines any claim of physical presence during those periods.

Petitioner also appears to argue that he is a district resident who is temporarily absent from the district and should be permitted to maintain his residency status during such absence (see e.g. Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010).  However, this doctrine does not apply under the facts of this case as there is no indication on the record before me that petitioner has established residency in respondent’s district or that he has abandoned his residence in Yonkers (see e.g. Appeal of Zhang and Xue, 54 Ed Dept Rep, Decision No. 16,733; Appeal of Lin, 48 id. 166, Decision No. 15,827).

Petitioner’s reliance on Appeal of Berliner (38 Ed Dept Rep 181, Decision No. 14,010) is misplaced.  In that appeal, petitioner lived within the Huntington Union Free School District for a year, subdivided his lot, sold his home located on one part of the subdivided lot, and began constructing a new home on the vacant part of the newly-subdivided lot.  Petitioner attempted to remain within the Huntington School District by leasing a trailer on the vacant portion of the subdivided lot but was forced to vacate the trailer because it violated a town building code.  Only then did petitioner relocate to a location outside of respondent’s district.  After relocating, the home construction was completed later than expected, and a Certificate of Occupancy was delayed due to the presence of wetlands on or near the property.  The Commissioner held that petitioner’s absence from Huntington was temporary under the circumstances, and that his children remained residents during the time in which they lived outside of the district.

Appeal of Berliner thus hinged upon the petitioner’s temporary absence from a district where he had established residency.  Here, by contrast, the record indicates that petitioner did not live at the in-district address at any time prior to the date of the district’s residency determination.  Thus, Appeal of Berliner is not applicable to the instant scenario and does not support petitioner’s claim of residency within respondent’s district.

Finally, I note that the record contains conflicting evidence as to whether petitioner represented to respondent that he, in fact, resided within the district in April 2016.  On the one hand, the assistant superintendent avers that, on April 27, 2016, he spoke with petitioner who asserted “that he and his family now live in the Hartsdale home and that he is now a resident.”  Petitioner offers a similar statement in his reply, stating that he and the students “moved ... back into the [in-district] house on April 23, 2016” and informed the assistant superintendent of such move on April 27, 2016.  Both petitioner and the assistant superintendent agree that, in response to petitioner’s statement, the assistant superintendent referred petitioner to the district’s April 21, 2016 exclusion determination.

On the other hand, the assistant superintendent also states that, later in the April 27, 2016 phone call, petitioner claimed that respondent’s residency determination was “unfair” because “everybody knew that they [petitioner and the students] were not living there” in Hartsdale.  Petitioner also avers in his petition, which was served on respondent less than a month after April 27, 2016, that he is “temporarily living at [the out-of-district address] with my wife and two children” and the petition contains no assertion that petitioner and his family ever moved into the in-district residence.

Based on this evidence, it is unclear whether petitioner actually moved to the in-district address on or about April 27, 2016, or whether he informed the assistant superintendent that he had new evidence to support his claim of residency within the district.  Accordingly, on this record, petitioner has failed to carry his burden of proof and I am therefore unable to conclude that respondent’s determination that petitioner did not abandon the Yonkers residence and establish residency in its district was arbitrary, capricious or unreasonable.

With respect to petitioner’s request for a refund of non-resident tuition paid to respondent, I note that the Commissioner has historically declined to award tuition in residency appeals (Appeal of M.S. and M.R.F., 57 Ed Dept Rep, Decision No. 17,347; Appeal of Clark, 48 id. 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  Such relief should be sought in a court of competent jurisdiction (Appeal of Clark, 48 Ed Dept Rep 337, Decision No. 15,876; Appeal of C.S., 47 id. 407, Decision No. 15,737).  However, to the extent petitioner pays taxes on the in-district property, he is entitled to a reduction of tuition pursuant to Education Law §3202(3) (see e.g. Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827).

Although the appeal must be dismissed, I note that petitioner has the right to reapply for admission to respondent’s schools on his children’s behalf at any time, particularly if his living situation has changed or does in fact change, and to submit any documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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