Appeal of M.F., on behalf of her children, from action of the Board of Education of the Pocantico Hills Central School District regarding a school district boundary.

Decision No. 17,613

(April 4, 2019)

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 Pocantico Hills Central School District (“respondent”) denying her request to enroll her children (the “students”) in the district pursuant to Education Law §3203.  The appeal must be dismissed.

The students have attended schools in the district since approximately 2004.  During August 2016, district staff reviewed the transportation routes and discovered that the property on which petitioner’s rental home is located is outside of the boundary line of the district.  The district’s business official contacted the town tax assessor’s office and was provided a map showing that the property on which petitioner’s rental home sits is intersected by the district’s boundary line.  The property at issue consists of a one-family residence in which the owner, who is not petitioner, resides and another residential building that petitioner rents from the owner.  The school district boundary line intersects the property through an unimproved section only and does not intersect either residential building.  The owner of the property designated respondent’s district (“Pocantico Hills”) as the district of attendance for his children approximately 30 years ago.  The owner’s children are grown and no longer attend school.

By letter dated June 14, 2017, the district’s Director of Student Services (“director”) informed petitioner that, pursuant to Education Law §3203, the students were not entitled to attend the district’s schools because they were not residents of the district.  The letter informed petitioner that the students would be excluded from the district’s schools at the end of the 2016-2017 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 27, 2017.

Petitioner claims that the students have resided in the district for approximately thirteen years and intend to reside within the district “for an indefinite amount of time.”[1]  Petitioner alleges that the district’s decision was motivated by discrimination against her younger daughter as a student with a disability, as well as discrimination based on petitioner’s level of income.  Petitioner also argues that respondent’s interpretation of Education Law §3203 is incorrect and that the students are entitled to choose which district to attend when a property encompasses two districts.  Petitioner asks that respondent’s residency determination be overturned.

Respondent contends that petitioner has failed to meet her burden of proof, that respondent’s reading of Education Law §3203 is correct, and that its residency determination was not arbitrary and capricious.

I must first address two procedural issues.  With respect to the reply submitted by petitioner, 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

To the extent petitioner is claiming a right to make a designation of her children’s school district of attendance pursuant to Education Law §3203, such claim must be dismissed for lack of standing (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Petitioner does not allege that she is the owner of the property on which she resides.  Instead, she asserts that she and her family are tenants.  However, Education Law §3203(1) confers the right to designate the school district of attendance only upon the “owner of taxable property” in which the boundary line of two school districts intersects the dwelling, or in the case of an owner-occupied single-family dwelling unit, the property on which the dwelling is located.  As a non-owner, petitioner cannot claim a right to make such a designation (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191; Appeal of Madison, 45 id. 415; Decision No. 15,370).  In asserting the right to make a designation, petitioner is attempting to assert the rights of a property owner, and she lacks standing to do so (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191).

To the extent petitioner is claiming that her children are entitled to attend respondent’s schools as district residents, the appeal must be dismissed on the merits.  The primary issue on appeal is the parties' respective interpretations of Education Law §3203 and application of that statute to the facts herein.  In relevant part, Education Law §3203, entitled "Selection of school for attendance of children when district line intersects a dwelling," provides:

1. 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 or, in the case of a single family unit, when such dwelling unit is built or when its owner-occupant's first child commences attending school from such residence and thereafter whenever the ownership of such taxable property changes hands in an arm’s length transaction or, likewise, the first child of its new owner-occupant first commences attending school from such residence 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 an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

     Here, petitioner and the students are tenants in a dwelling on the property at issue and respondent contends that, although the school district boundary intersects an unimproved portion of the property, the boundary line does not intersect petitioner’s rented dwelling.  Respondent has submitted a map of the property, which it claims shows that a substantial portion of the more than 9 acres of property at issue is within the Union Free School District of the Tarrytowns, while a small piece of unimproved property is in the Pocantico Hills Central School District.  Other than questioning in her reply whether the property line claimed by respondent is correct, petitioner has provided no evidence to contradict respondent’s allegations, which are consistent with the map submitted by respondent, or to establish that the boundary line intersects the dwelling in which she resides.

In any event, as noted above, petitioner is not the owner of the property on which the dwelling in which she resides is located and, therefore, has no right to make a designation pursuant to Education Law §3203 (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191; Appeal of Madison, 45 id. 415; Decision No. 15,370).  Where, as here, the record indicates that the boundary line only intersects the property on which petitioner’s rented dwelling is located, under the plain language of Education Law §3203(1)(b) only an owner-occupant can claim a right to designate (Palm v. Tuckahoe Union Free School District, 141 AD3d 635).

Therefore, unless the owner of the property has made a designation that extends to petitioner and her children, petitioner’s children cannot claim a right to be deemed district residents pursuant to Education Law §3203(1).  I find that the designation made by the owner of the property herein does not so extend to petitioner as a tenant.  The record indicates that the owner of the property did designate respondent’s school district approximately 30 years ago.  Such designation remains in effect until a new designation is made or there is a boundary alteration (Education Law §3203[3]; Appeal of the Board of Education of the Edgemont Union Free School District, 56 Ed Dept Rep, Decision No. 17,088; Appeal of the Board of Education of the Harborfields Central School District, 41 id. 113, Decision No. 14,631; Appeal of the Sole Trustee of the Hickory-South Mountain Common School District No. 1, 38 id. 577, Decision No. 14,097).  However, that is of no avail to petitioner.  The record indicates that petitioner resides in a rented dwelling on the property separate from that of the property owner.  Under the plain language of Education Law §3203(1), the property owner’s designation only extends to “the children lawfully residing in said dwelling on said property.”  In other words, the property owner’s prior designation only applies to children residing in the dwelling on which the right to designate was based, in this case the owner’s dwelling.

Therefore, I find that petitioner has failed to meet her burden of proving that her children are district residents or have a right to attend respondent’s schools pursuant to a designation made under the provisions of Education Law §3203.

Petitioner’s further claim that her children should be allowed to continue to attend respondent’s schools because respondent’s determination was allegedly based on discriminatory intent must also be dismissed.  Petitioner makes only conclusory and speculative allegations that respondent’s determination was discriminatory and has provided no proof to corroborate such allegations.  While she alleges that “[o]ther families down the road” have been allowed to stay in respondent’s school district without receiving a letter stating that “the district lines were being reevaluated,” she has provided no proof that any of those families are similarly situated.  To the contrary, the record indicates that respondent has correctly interpreted and applied Education Law §3203 and properly concluded that petitioner’s children are not entitled to attend its schools.

Finally, to the extent petitioner complains that her children were allowed to attend respondent’s schools since 2004, such an error does not preclude respondent from subsequently determining that petitioner’s children are not entitled to attend its schools.  While I am sympathetic to petitioner’s situation, it has long been settled that, in the context of making residency determinations pursuant to Education Law §3202, a school district’s mistake as to the actual school district in which a residence is located does not bar the district from later refusing to admit a child as a non­resident student (see e.g. Appeal of Tunison, 58 Ed Dept Rep, Decision No. 17,472; Appeal of Perez, 42 id. 71, Decision No. 14,779).  Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  A mistake by a school district representing that a certain property is located within the district does not vest any legal right in such students to attend on a tuition-free basis (Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Prospero, 37 id. 62, Decision No. 13,804).  Therefore, respondent was not estopped from correcting its prior mistake and determining that petitioner’s children are not district residents or deemed to be district residents pursuant to Education Law §3203(1).

THE APPEAL IS DISMISSED.

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