Decision No. 18,250
Appeal of W.A., on behalf of his children, from action of the Board of Education of the Orchard Park Central School District regarding residency and homelessness.
Decision No. 18,250
(March 13, 2023)
Webster Szanyi, LLP, attorneys for respondent, Marnie E. Smith, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals a determination by the Board of Education of the Orchard Park Central School District (“respondent”) that his three children (the “students”) are not homeless within the meaning of the McKinney-Vento Homeless Education Assistance Act (42 USC 11431 et seq., “McKinney-Vento”) and, therefore, are not entitled to attend the district’s schools. The appeal must be sustained.
Petitioner, his partner, and the students have been living in a motel room since they were forced to leave their home in respondent’s district in December 2020. It appears that respondent permitted the students to attend its schools as homeless students at that time. By letter dated July 28, 2022, respondent advised petitioner of its determination that the students were no longer homeless because the motel was a fixed, regular, and adequate residence. This appeal ensued.
Petitioner argues that the students are homeless because they were forced out of the in-district address and now reside in a motel, which is inadequate. For relief, petitioner requests a finding that the students are entitled to attend respondent’s schools without payment of tuition.
In a memorandum of law, respondent argues that petitioner’s residence is fixed, regular, and adequate. Respondent further maintains that petitioner is not homeless because he is voluntarily electing to reside at the motel.
Pursuant to Education Law § 3209 (1) (a), a “homeless child” is: (1) a child “who lacks a fixed, regular, and adequate nighttime residence,” such as a child who is “sharing the housing of other persons due to a loss of housing, economic hardship or a similar reason”; a child who is “living in motels, motels, trailer parks or camping grounds due to the lack of alternative adequate accommodations”; a child who has been abandoned in a hospital; or an unaccompanied youth; or (2) a child who has a “primary nighttime location” that is either “a supervised publicly or privately operated shelter designed to provide temporary living accommodations” or “a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.” Both Education Law § 3209 and section 100.2 (x) of the Commissioner's regulations conform to the definition of “homeless children and youths” in McKinney-Vento (42 USC § 11434a ).
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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
On the record before me, petitioner has established that his family’s accommodations are inadequate. As indicated above, both McKinney-Vento and State law specifically contemplate physical presence within a “hotel” or “motel” as circumstances that may give rise to homelessness (42 USC § 11434a  [b] [i]; Education Law § 3209  [a]  [i]). The students and two adults live in a motel room that contains two beds and two air mattresses. The room lacks a kitchen and is equipped with only a countertop oven, refrigerator, freezer, and an air fryer (see Appeal of C.V., 59 Ed Dept Rep, Decision No. 17,700). Under these circumstances, I find that petitioner has demonstrated that the students’ living situation is inadequate (see Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794 [student homeless where he slept on the couch and mother and other child shared a twin-sized bed in the same living room in grandparent’s co-op]; Appeal of R.W., 49 id. 73, Decision No. 15,962 [student homeless where petitioner and student shared a one-bedroom apartment with another person, student slept on a couch, and petitioner slept on an air mattress on the floor]; Appeal of G.R., 49 id. 50, Decision No. 15,955 [student homeless where petitioner, student, and student’s child shared a three-bedroom house with six other people and student slept on a couch in the living room with minimal privacy]).
In response, respondent argues that the students are not homeless because petitioner has voluntarily chosen to live at the motel. As proof, respondent provides internet search results reflecting multiple apartments available within the district that charge as much as, or less than, the amount that petitioner currently pays in rent at the motel. As I have previously held, “the mere fact that [a] petitioner is able to pay for hotel or motel rooms each month does not demonstrate that she [or he] can afford a residence within respondent’s district” (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,920). Other than this general assertion, respondent has provided no other evidence to show that petitioner continues to live at the motel by choice. Rather, the record shows, which respondent does not contest, that petitioner involuntarily left the in-district address and began residing at the motel thereafter. While petitioner and his family have lived there for approximately two years, the mere passage of time cannot transform this inadequate housing into a fixed, regular, and adequate residence (see Appeal of T.R., 59 Ed Dept Rep, Decision No. 17,794; Appeal of R.M., 54 id., Decision No. 16,643).
Thus, based on the record before me, I find that petitioner has met his burden of proving that the students lack a fixed, regular, and adequate nighttime residence, and the students are entitled to attend respondent’s schools for the duration of their homelessness.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent permit the students to attend school in the Orchard Park Central School District without payment of tuition and provide transportation services to the students for the duration of homelessness pursuant to Education Law § 3209, including those provisions regarding a child’s terminal year in a school building, if applicable.
END OF FILE
 Petitioner has sole custody of the students.
 Respondent did not submit an answer, stating that the “underlying facts of this matter are not in dispute.”
 Education Law § 3209 excludes from the definition of “homeless child” a child who is in a foster care placement or receiving educational services under certain provisions of Education Law § 3202 or articles 81, 85, 87, or 88 of the Education Law.
 Respondent is correct, however, that residence in a hotel or motel does not demonstrate homelessness in and of itself (see Appeal of Murphy, 61 Ed Dept Rep, Decision No. 18,018).
 While this statement applies with equal force, I acknowledge that some of the factual findings in that appeal—for example, the fact that the petitioner “frequent[ly] stay[ed] at various other locations”—are not identical to the instant dispute.