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Decision No. 13,344

Appeal of SUE LOCKE from action of the Board of Education of the Fort Ann Central School District regarding rejection of a nominating petition.

Decision No. 13,344

(January 24, 1995)

Valerie Hughes Zahn, Esq., attorney for petitioner

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Martin D. Auffredou, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that she is ineligible to run for the Board of Education of the Fort Ann Central School District because she is not a resident of that district. The appeal must be dismissed.

Neither party to this appeal has presented a clear picture of the facts. It appears, however, that petitioner and her husband own a number of parcels of real estate in both the Fort Ann Central School District and the Granville Central School District. Prior to January 1994, petitioner's actual residence was situated on a parcel of land located entirely within the boundaries of the Granville district, with the boundary line of said school district running along a portion of petitioner's property. By deed dated January 14, 1994, petitioner and her husband acquired a parcel contiguous to the parcel of their residence. The newly acquired contiguous parcel is located within respondent's district. As a result of that transaction, petitioner and her husband now claim to own property that is intersected by the boundary line between the Granville district and respondent's district. At a meeting held on June 9, 1994, respondent determined that petitioner was not a resident of its district and that she was ineligible to be a candidate for the board. Petitioner commenced this appeal on August 31, 1994.

Education Law '2102 requires, among other things, that a member of a board of education be a resident of the district prior to election. It is well settled that "residence" is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Reifler, 31 Ed Dept Rep 235; Matter of Whiteman, 24 id. 337). The record clearly shows that petitioner's actual physical residence is located in the Granville district and not in respondent's district. Petitioner has failed to submit any evidence which demonstrates that her purchase of property in respondent's district contiguous to her residence in the Granville district has had the effect of converting her into a resident of respondent's district. Accordingly, respondent did not act improperly when it determined that petitioner was not a resident and thus was ineligible to run for its board.

While Education Law '3203 permits petitioner to choose to send her children to respondent's schools tuition free because she owns property that is intersected by that district's boundary line (See Crowe v. MacFarland, 138 AD2d 788), the fact that the boundary line intersects her property does not make her a resident of respondent district or eligible for election to its board. For the reasons noted above, I reject petitioner's assertion that she is a resident of the Fort Ann Central School District.

I have reviewed petitioner's remaining contentions and find them without merit. Based on the foregoing, I will not address the several procedural issues raised by respondent.