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Decision No. 14,191

Appeal of MARY FELENCZAK, on behalf of her daughter, KRISTINA, from action of the Board of Education of the Hastings-on-Hudson Union Free School District regarding residency.

Decision No. 14,191

(August 17, 1999)

Keane & Beane, PC, attorneys for respondent, Frances M. Pantaleo, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Hastings-on-Hudson Union Free School District ("respondent"), dated February 10, 1999, which denied an application for her daughter to attend school in the district beginning in September 1999. The appeal must be dismissed.

Petitioner and her daughter reside at 30 Burhans Avenue, within the Yonkers City School District. On or about February 1, 1999, petitioner made a written application for her daughter, Kristina, to enter respondent's kindergarten program in September 1999. The documents submitted to respondent state clearly that petitioner and her daughter live in the Yonkers School District, but claim a right to attend respondent's school based upon property ownership within the district. On February 10, 1999, petitioner's application was denied by respondent's deputy superintendent, who found that both petitioner and her daughter were non-residents of the district. The deputy superintendent further pointed out that ownership of real property within the district by a limited liability partnership, of which petitioner may be a principal, does not entitle Kristina to attend the district's schools as a resident. She further pointed out that the district was not currently accepting non-resident students on a tuition basis at the elementary school level.

Petitioner claims that ownership of real property within respondent's district through an interest in a limited liability partnership entitles her daughter to attend district schools tuition-free. She further claims that respondent allows a number of non-resident students to attend its schools, despite the policy cited in the denial letter.

Respondent generally denies any wrongdoing, states that petitioner and her daughter are non-residents, and points out that, of the students identified by petitioner, all but three are the children of district employees who attend its schools pursuant to district policy, and the other three are in fact residents. In addition, respondent argues that this appeal, which was commenced on April 9, 1999, is untimely because it was commenced more than 30 days after the denial of petitioner's application for admission, in violation of 8 NYCRR "275.16.

I find the appeal untimely. Petitioner earlier attempted to commence this appeal on March 10, 1999, but my Office of Counsel returned her petition on March 30 because it had been improperly served. Petitioner sets forth no reason why this appeal could not have been properly and timely served within 30 days after the determination being challenged.

Even if I were not dismissing for untimeliness, I would dismiss this matter on the merits. 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 children whose parents or legal guardians reside within the district (Appeal of Duhaney, 38 Ed Dept Rep 94, Decision No. 13,991; Appeal of Allen, 35 id. 112, Decision No. 13,482; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). In the instant appeal there is no question that both petitioner and her daughter reside outside the district.

Petitioner's claim that ownership of real property in the district should entitle her daughter to attend the district's schools is of no avail. This argument has been advanced and rejected in numerous Commissioners' decisions (see, e.g., Appeal of Duhaney, supra; Appeal of Cippitelli, 34 Ed Dept Rep 348, Decision No. 13,336; Appeal of Gaffney, 33 id. 246, Decision No. 13,040, judgment granted dismissing petition to review, Supreme Court, Albany County, April 22, 1994, n.o.r., aff'd 210 AD2d 810; Appeal of Steiner, 33 id. 420, Decision No. 13,099; Appeal of Rosen, 33 id. 443, Decision No. 13,106).

Because the district has indicated that it will not admit non-resident students at the elementary level on a tuition-paying basis, it is unnecessary to consider whether or not petitioner's claimed ownership of real property of a part-residential and part-business nature through a limited liability partnership would qualify for a reduction in tuition pursuant to Education Law "3202(3) (cf., Appeal of Colletti, 32 Ed Dept Rep 510, Decision No. 12,902).

I have considered the parties' other arguments and find them without merit.