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Decision No. 13,991

Appeal of HARDIE DUHANEY, on behalf of NICOLE, MONICA, and HARDIE DUHANEY II, from action of the Board of Education of the Massapequa Union Free School District, regarding residency.

Decision No. 13,991

(August 18, 1998)

Anthony D. Denaro, P.C., attorneys for petitioner, Steven E. Shumer, Esq., of counsel

Van Nostrand & Martin, attorneys for respondent, William C. Morrell, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District ("respondent") that his children, Nicole, Monica and Hardie, are not residents of the district. The appeal must be dismissed.

Petitioner and his children reside at 20 Norwich Avenue, Lynbrook, within the Lynbrook Union Free School District ("Lynbrook"). Petitioner also owns property at 65 Forest Avenue, Massapequa, within respondent's district ("district"). At the time of this appeal, petitioner was seeking approval from the local zoning board to build a residence on this property.

In August 1997, petitioner enrolled his children in respondent's schools and entered the Massapequa address on the district's enrollment form. Prior to August 1997, petitioner's children attended Lynbrook schools. In October 1997, respondent's principal met with petitioner and his wife and informed them that only residents of the district could attend its schools and since petitioner and his family were still actually residing at the Lynbrook address, the children would have to leave the district schools. Petitioner and his wife informed the principal that they had encountered delays obtaining the necessary building permits, but assured the principal that construction and occupation of the residence in Massapequa was imminent. Respondent's superintendent met with petitioner and his wife on November 26 and December 16, 1997 and informed them that unless progress was made on the construction of the house by mid-January 1998, petitioner's children would not be allowed to continue in respondent's schools. Respondent's administrators inspected the construction site on October 23, November 20, December 20, 1997 and January 27, 1998 and found that no construction had yet begun. By letter dated January 26, 1998, the superintendent notified petitioner that, beginning February 2, 1998, his children would have to attend Lynbrook schools. This appeal ensued. On February 20, 1998, the Commissioner denied petitioner's request for interim relief.

Petitioner contends that respondent was aware of the status of his family's residence at the time the students were enrolled in its schools. Petitioner alleges that, based upon the proposed construction of a house at the Massapequa address, which has been delayed by the town government's delay in issuing necessary building permits, he and his family are "constructive" residents of the district. Petitioner argues that because he pays taxes on the Massapequa property, his children are entitled to attend respondent's schools tuition-free. Petitioner contends that his children will be irreparably harmed by being returned to Lynbrook schools where, he alleges, his children were discriminated against because of their race. Petitioner asks for a determination that his children are residents of the district.

Respondent alleges that petitioner used the deed for the Massapequa address when the students were enrolled and petitioner did not inform the district that there was no residence on the property. Respondent contends that it only discovered the status of the property after the school year started when a teacher overheard a conversation among students that indicated that petitioner and his children actually resided in Lynbrook. Respondent argues that petitioner only revealed his construction plans and difficulties after being advised by the principal that only district residents could attend district schools. Respondent requests a determination that petitioner is not a resident of its district and his children are, therefore, not entitled to attend its schools on a tuition-free basis.

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 Allen, 35 Ed Dept Rep 112; Appeal of Brutcher, 33 id. 56; Appeal of Curtin, 27 id. 446). For the purposes of Education Law "3202, a person can only have one legal residence (Appeal of Elliott, 36 Ed Dept Rep 70; Appeal of Britton, 33 id. 198). Residence is acquired by one's physical presence as an inhabitant within the district combined with an intent to remain (Appeal of Elliott, supra; Appeal of Reifler, 31 Ed Dept Rep 235).

Based on the record before, I find respondent's determination that petitioner and his family are not district residents to be reasonable. Petitioner admits that his property in Massapequa is vacant and submits copies of unapproved building permits in support of his petition. Petitioner and his family are not physically present in the district, and therefore, cannot be residents of the district.

As for petitioner's argument regarding his payment of taxes on the Massapequa property, Education Law "3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. If respondent were to accept petitioner's children on a tuition-paying basis, to the extent petitioner pays school taxes on his property in respondent's district, he would be entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law "3202(3).

Finally, petitioner has failed to submit any evidence supporting his contention that his children were discriminated against in Lynbrook. In any event, while it is regrettable that petitioner's children may experience discomfort in returning to the schools of their district of residence, this circumstance does not provide a sufficient basis to overturn respondent's determination or oblige respondent to accept petitioner's children into its schools.