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Decision No. 13,106

Appeal of ANNA and LAURENCE ROSEN, on behalf of their sons, Daniel and Jason, from action of the Board of Education of the Croton Harmon Union Free School District and Sherry P. King, Superintendent, regarding residency.

Decision No. 13,106

(February 22, 1994)

Vernon & Ginsburg, Esqs., attorneys for petitioners, Darryl M. Vernon, Esq., of counsel

Plunkett & Jaffe, P.C., attorneys for respondent, Phyllis S. Jaffe, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondents' determination that their sons, Daniel and Jason, are not residents of the Croton Harmon Union Free School District ("the district") and are not entitled to continue to attend its schools tuition-free. The appeal must be dismissed.

Petitioners' children have been enrolled in the district since the beginning of the 1993-94 school year. The record indicates that petitioners own a restaurant and apartment in New York City and a condominium in respondent school district. Daniel and Jason attended a private school in New York City until June 1993, when petitioners registered them in the district. Based on petitioners representation that they would establish residence in the district, Daniel and Jason were admitted to the district tuition-free.

On September 9 and 13, 1993, respondent King sent letters to petitioners seeking proof of residency. This request was made because one of petitioners' children was eligible for transportation but had not used it. In addition, the elementary school principal observed the children being transported to and from school by a driver. The driver apparently informed the principal that he drives the children from New York City every day.

In support of their contention that they reside in the district, petitioners supplied bills from a veterinarian indicating treatment of the family pet in the vicinity of the district. They also supplied a voter registration verification dated October 2, 1993, a document signed by neighbors stating that petitioners reside at a condominium within the district, and an affidavit from petitioners that they reside at the condominium three to four nights per week.

On October 18, 1993, respondent King advised petitioners that she did not consider their children to be residents of the district. Nevertheless, respondents allowed petitioners' children to remain in the district until November 28, 1993 to give petitioners the opportunity to appeal the district's determination. Respondents then agreed to allow petitioners' children to remain in the district for December 1993, January 1994 and February 1994 upon receipt of $5,067 tuition by January 28, 1994. Thereafter, petitioners would be required to pay tuition on a monthly basis at the beginning of each month. Petitioners were further advised of their right to deduct property taxes from their tuition payments. This appeal ensued.

Petitioners allege respondents' decision was arbitrary, capricious and not in compliance with 8 NYCRR 100.2(y). Respondents contend they acted reasonably and that their procedures conformed to 8 NYCRR 100.2(y).

Residence is determined based upon an individual's physical presence as an inhabitant within the district combined with the intent to remain (Appeal of Stokes, 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38; Appeal of Reifler, 31 id. 235). The term "residence" for purposes of the Education Law refers to one's "domicile" (Appeal of Reifler, supra). A "domicile" in turn means living in a locality with the intention to make it a fixed and permanent home. While a person may have more than one residence, he may have only one domicile (Matter of Newcomb, 192 NY 238).

Respondents' decision was based in part upon a sworn surveillance report that established petitioners' children were dropped off at school by a driver from a location other than the condominium located in the district. This same report established that at the close of the school day, petitioners' children were driven to New York City, not to the condominium in the district. In fact, surveillance revealed no activity at the condominium during morning hours when a student would typically be preparing to leave for school. Additionally, conversations between the elementary school principal and the children's driver confirmed that the students were being driven to and from New York City to attend school in the district. Furthermore, the school registration card for petitioners' son Daniel contained a home phone number in New York City, and all correspondence to petitioners from respondents had been sent to and received at the New York City address.

The evidence submitted by petitioners, on the other hand, is not compelling. The voter registrations submitted by petitioners to respondents were dated after the question regarding their residency arose, raising a question as to petitioners' reason for registering. The document signed by petitioners' neighbors attesting to petitioners residing at the condominium does not establish residence but only provides some evidence that petitioners are present on occasion and that the condominium is not sublet. The bills from the veterinarian likewise do not in any way establish the residence of petitioners, only that petitioners paid for a pet to be taken by someone to a veterinarian on five occasions. Additionally, the petitioners' affidavit is not credible in view of the surveillance report and subsequent information in the record. The record also reflects that during the week of January 17, 1994, when the schools in the district were closed, petitioners could only be reached at the New York City telephone number. Accordingly, I find respondents have not acted arbitrarily or unreasonably in determining that petitioners and their sons are not residents of the district and are not entitled to attend school there tuition-free.

Nor did respondents violate '100.2(y) by not giving petitioners a formal hearing. Section 100.2(y) states "the board or its designee shall afford the child's parent... the opportunity to submit information concerning the child's right to attend school in the district." The regulation clearly does not require a district to hold a formal hearing prior to rendering its decision. The record reflects that petitioners were afforded the opportunity and did present evidence to respondents, to wit, the bill from the veterinarian, their voter registration, the letter from the tenants and their personal affidavit that they reside at the condominium within the district. Because petitioners were allowed to supply respondents with this information, it is clear that respondents complied with the requirements of the Commissioner's regulations.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Because petitioners' sons are not residents of the district, respondents have the authority to require petitioners to pay tuition as a condition of their continued enrollment. To the extent petitioners pay school taxes on their property in the district, they are entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).