Appeal of M.L., on behalf of J.L. and J.L., from action of the Board of Education of the Smithtown Central School District regarding residency.

Decision No. 14,001

(August 25, 1998)

Peter G. Albert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the determination by the Board of Education of the Smithtown Central School District ("respondent") that his children, J.L. and J.L., are not residents of the school district. The appeal must be dismissed.

During the 1997-98 school year, Mr. L."s children attended St. James Elementary School in the Smithtown Central School District (the "district"), and their address was listed as 66 Mill Pond Road in St. James, New York. In January 1998, Mrs. L. gave a change of telephone number to the district's Health Clerk. An investigation confirmed that the new telephone number was for an area of Lake Grove, New York that was outside the geographic boundaries of the district. Shortly thereafter, Mrs. L. advised the school principal that she and the children had been living with her parents in Lake Grove since November 1997. Assistant Superintendent Janice Kaval consequently sent the petitioners a letter dated February 11, 1998, questioning the children's eligibility to attend St. James Elementary School and directing the petitioners to submit proof of residency within the district so that the children could continue to attend district schools as resident students.

Respondent received no response to the letter. Ms. Kaval contacted Mrs. L., who told her that the stay in Lake Grove was only temporary and the family was looking for a new home within the district. Respondent granted the petitioners an extension until March 18, 1998, to find new permanent housing and submit proof of residence. When respondent received no response, Ms. Kaval again contacted Mrs. L., who told her that the deal for a new home had fallen through but the family was continuing its search for a new residence within the district. A second extension was granted until April 1, 1998.

Respondent never received any confirmation of residency from the petitioners. Accordingly, Ms. Kaval issued a letter on April 3, 1998, advising that the district would no longer permit the children to attend district schools as residents, and that the children would be removed from the attendance rolls. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on April 20, 1998.

Petitioner admits that as of April 1, 1998, the date of the petition, he was residing in Spring Hill, Florida, and his children were residing with their mother, June L., in Lake Grove, which petitioner admits is outside respondent's district. Petitioner stated in the petition that the children had been living in Lake Grove for approximately 9 weeks but that the stay was only temporary. Petitioner explained that he and his wife had temporarily separated but were trying to resolve their problems and return to St. James as soon as possible. He noted that they were in the process of looking for a home in St. James.

Petitioner seeks a determination that J.L. and J.L. are residents of the Smithtown Central School District. Respondent denies that the children are residents of its district. Respondent also raises two affirmative defenses, that the petition fails to state a claim upon which relief may be granted, and that petitioner failed to exhaust administrative remedies by failing to submit documentation of residency to respondent.

The appeal must be dismissed. 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 Rivkin, 37 Ed Dept Rep 370; Appeal of Simond, 36 id. 117; Appeal of Keenan, 36 id. 6). For purposes of Education Law "3202(1), "residence" is acquired by one's physical presence as an inhabitant within the district, together with the intention to remain there permanently (Appeal of Gannon, 37 Ed Dept Rep 135; Appeal of Digilio, 37 id. 25; Appeal of Elliott, 36 id. 70). A person can have only one legal residence (Appeal of Gannon, supra; Appeal of Britton, 33 Ed Dept Rep 198). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Schwartzburt, 37 Ed Dept Rep 139; Appeal of Britton, supra; Appeal of Elliott, supra).

A person's temporary absence from the school district of residence does not necessarily constitute either the establishment of residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Schwartzburt, supra; Appeal of Kenneth R., 30 id. 297; Appeal of Richards, 25 id. 38). 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 Schwartzburt, supra; Appeal of Gannon, supra).

Respondent's determination concerning residency will not be set aside unless the determination is arbitrary and capricious (Appeal of Digilio, supra). The record before me fully supports respondent's determination that the L. children are no longer residents of respondent's district. The petition admits that Mr. L."s resides in Florida, and that the two children reside with their mother in Lake Grove, which is not within respondent's district. Significantly, petitioner failed to submit a reply to rebut respondent's allegations that the children have been living in Lake Grove since November 1997, and that the parents consistently failed to provide any documentation of residence or even proof of their search for a residence despite the district's repeated requests (Appeal of Saliba, 37 Ed Dept Rep 101).

Although the petition indicates that the petitioners were actively looking for a home in St. James, petitioner has submitted no proof that the family has contracted to build, purchase or lease a residence within respondent's district, nor even proof of the alleged attempts to obtain a residence. The bare assertion of an intention to return to the district, absent any showing that continuing efforts are being made to secure a residence, does not establish legal residence (Appeal of Gannon, 37 Ed Dept Rep at 136). The record is also devoid of any indication that petitioner continues to maintain significant community ties within the district other than his children's continued attendance in the district's schools (Appeal of Gannon, supra), and the fact that many members of his family also attended the St. James schools.

By his own admissions, petitioner has established that his children are not residents of respondent's district (Appeal of Mueller, 37 Ed Dept Rep 145). Although I am sympathetic to petitioner's allegations that the children have been happy in the Smithtown schools and need consistency in their education during this period of family difficulty, this is not a sufficient basis for overturning respondent's residency determination (Appeal of Mueller, supra). In view of petitioner's own admissions concerning residency, and the lack of any proof that residence has been re-established in respondent's district since the children left to live in Lake Grove in November 1997, respondent's determination must be upheld.

In view of the foregoing disposition, I need not address respondent's procedural claims.

THE APPEAL IS DISMISSED.

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