Decision No. 17,915
Appeal of ROBERT KERLEY, on behalf of his son LANDON, from action of the Board of Education of the Half Hollow Hills Central School District regarding residency.
Decision No. 17,915
(September 4, 2020)
Frazer & Feldman, LLP, attorneys for respondent, Rory G. Schnurr and Christie R. Jacobson, Esqs., of counsel
Rosa., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Half Hollow Hills Central School District (“respondent”) that his son, Landon (“the student”), is not a district resident and, thus, not entitled to attend the district’s schools. The appeal must be dismissed.
Petitioner and the student previously lived at an address within respondent’s district, and the student attended respondent’s schools as a district resident. In May 2017, petitioner purchased an unimproved parcel of land within the district (“the in-district property”) with the intention of constructing a residence there. On or about October 2018, petitioner and the student began living at a residence outside of respondent’s district (“the out-of-district residence”).
In January 2019, the district commenced a residency investigation based on anonymous reports that the student was no longer using district transportation to get to school. Respondent’s district registrar then spoke with petitioner, who indicated that he and the student had moved to the out-of-district address due to “space concerns.” The district registrar provided petitioner “an opportunity to come into compliance with the [d]istrict’s residency requirement” and requested that petitioner “provide [him] with updates.”
In March 2019, petitioner informed the district registrar that construction at the in-district property had not progressed and that he and the student continued to live at the out-of-district residence.
By letter dated May 28, 2019, respondent’s assistant superintendent for finance and facilities (“assistant superintendent”) determined that petitioner and the student were not residents of respondent’s district. The letter indicated that the student would be excluded from respondent’s schools at the end of the day on June 26, 2019, unless petitioner provided evidence of the student’s residency by June 5, 2019. If petitioner did not provide such evidence, the assistant superintendent indicated that her letter would “act as a final determination.”
Thereafter, petitioner spoke with the assistant superintendent and again reported that “he had made no progress” concerning construction at the in-district property. According to the assistant superintendent, petitioner additionally admitted that he had not made “any effort to move to any other address within the district.” This appeal ensued. Petitioner’s request for interim relief was denied on July 9, 2019.
Petitioner concedes that he resides at the out-of-district residence but contends that he and the student “inten[d]” to reside “immediately” at the in-district property in a “semi-permanent trailer” until construction is completed.
Petitioner requests a determination that the student is a resident of the district entitled to attend district schools without paying tuition.
Respondent contends that petitioner has failed to comply with section 275.10 of the Commissioner’s regulations and to establish the facts upon which he seeks relief, insofar as he does not argue that he currently resides within the district, only that he intends to do so. Respondent further maintains that its determination that the student is not a district resident was based on credible evidence and was neither arbitrary nor capricious.
I must first address a procedural issue. Respondent contends that the petition must be dismissed because it does not contain a clear and concise statement of petitioner’s claims as required by section 275.10 of the Commissioner’s regulations. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself/herself entitled” (8 NYCRR §275.10). Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).
Upon review of the petition, I find that petitioner has adequately complied with section 275.10 by appealing from respondent’s residency determination and seeking a determination that the student is entitled to attend respondent’s schools without payment of tuition. Although respondent’s objects to the degree of proof petitioner has presented, respondent fails to identify any prejudice that would result from my consideration of petitioner’s claims. Indeed, respondent has meaningfully responded to the petition via its answer and memorandum of law. Accordingly, I decline to dismiss the petition on this basis (see Appeal of H.H., 56 Ed Dept Rep, Decision No. 17,033; Appeal of a Student with a Disability, 50 id., Decision No. 16,106).
Turning to the merits, Education Law §3202(1) provides, in pertinent part:
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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927). “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 Powell, 57 Ed Dept Rep, Decision No. 17,320). 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 ; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).
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 S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863). Likewise, pending home construction does not, in and of itself, establish residency (Appeal of Brown, 56 Ed Dept Rep, Decision No. 17,019; Appeal of Jankovic, 46 id. 441, Decision No. 15,558).
A residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). 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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). 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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863). 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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
Petitioner has failed to establish that the student is a resident of respondent’s district. Indeed, petitioner acknowledges that he and the student do not currently reside within the district, and the sole evidence that petitioner submits in support of the petition is a statement of taxes from December 1, 2018 through November 30, 2019 reflecting his ownership of the in-district property. Such ownership, in and of itself, does not confer resident status (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of White, 48 id. 295, Decision No. 15,863). Because the student is not physically present in respondent’s district, and petitioner admits that he and the student are presently living at the out-of-district residence, I cannot find respondent’s determination that the student is not a district resident to be arbitrary or capricious (see Appeal of L.T., 56 Ed Dept Rep, Decision No. 17,047; Appeal of Sigsby, 44 id. 97, Decision No. 15,109).
Nor is petitioner’s expressed intent to return to respondent’s district sufficient to establish residency on this record. The record reflects that petitioner and the student have resided at the out-of-district address since October 2018. Nevertheless, petitioner maintains that he and the student intend to move into a trailer at the in-district property “immediately.” In support of this claim, petitioner states that his “attorney met with the Town [of Huntington’s] Building Department to discuss having a trailer put in”; that he “had the Suffolk County Water Authority turn the water on ... in anticipation of connecting it to [a] trailer”; and that he is “in contact with the electric company to establish the hookup there as well.” Petitioner further describes a number of setbacks that he has faced in constructing a home since purchasing the in-district property in May 2017, including difficulties obtaining a land survey and construction permits, discovery of a previously unknown covenant affecting the property, and a jurisdictional dispute between the Town of Huntington’s Planning Board and Zoning Board of Appeals.
Petitioner has produced no proof of any of these assertions, such as evidence that he has secured and installed a trailer at the in-district property, or copies of any communications with his attorney, the Building Department, the Town Planning Board or the Zoning Board of Appeals. It is well-established that a claimed intent to return to a district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or, at the very least, a concrete and realistic plan for doing so (Appeal of Cabrera, 54 Ed Dept Rep, Decision No. 16,645; Appeal of Schmitt, 49 id. 271, Decision No. 16,022; Appeal of J.V., 44 id. 421, Decision No. 15,218). Although petitioner may intend to return to the district, respondent cannot be expected to allow the student to continue attending its schools indefinitely based on such intent (Appeal of L.T., 56 Ed Dept Rep, Decision No. 17,047; Appeal of Weisberg, 39 id. 737, Decision No. 14,365, petition to review dismissed, Weisberg v. Mills, et al., Sup. Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.). Therefore, on this record, given the length of time that petitioner and the student have resided at the out-of-district residence and petitioner’s failure to submit proof of a concrete plan to return to the in-district property, I cannot conclude that petitioner is temporarily absent from respondent’s district (Appeal of Tunison, 58 Ed Dept Rep, Decision No. 17,472; Appeal of Cabrera, 54 id., Decision No. 16,645; compare Appeal of Berliner, 38 id. 181, Decision No. 14,010 [finding temporary absence where the petitioner had been living outside of the respondent’s district “for approximately 14 months,” after initially “attempt(ing) to live” at his in-district property during construction, leasing a trailer and having it “installed with appropriate utility services,” and then discovering that “the trailer violated the town’s building code”]).
Although the appeal must be dismissed for the reasons described above, I note that petitioner retains the right to reapply for admission to respondent’s schools on the student’s behalf at any time, should circumstances change, and to present any information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner also seeks a determination “in the alternative” that the student be permitted to attend respondent’s district “with the payment of tuition ... and not requiring that [he] live in a trailer” at the in-district address. Moreover, petitioner requests identical relief on behalf of his daughter, whom he indicates “will be turning five years old [on] September 2, 2019.” Petitioner requests such relief for the first time on appeal, as there is no indication in the record that petitioner previously sought either to enroll the student as a non-resident pursuant to respondent’s policy 5152 or to enroll his daughter in respondents district. Likewise, there is no evidence that respondent has rendered any determination with respect to the student’s entitlement to enroll as a non-resident or the enrollment of petitioner’s daughter. An appeal pursuant to Education Law §310 is appellate in nature, and the Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of V.N., 59 Ed Dept Rep, Decision No. 17,742; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861). Thus, any claims concerning the student’s enrollment as a non-resident or the enrollment of petitioner’s daughter are premature and cannot be addressed in this proceeding (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,025).