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Decision No. 14,209

Appeal of KATHERINE and JOHN MONAHAN, on behalf of MICHAEL J. and SEAN P. O’BRIEN, from action of the Board of Education of the West Seneca Central School District regarding residency.

Decision No. 14,209

(September 1, 1999)

Hodgson, Russ, Andrews, Woods & Goodyear, attorneys for respondent, Jeff Swiatek, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the West Seneca Central School District ("respondent") that Michael J. and Sean P. O’Brien are not district residents. The appeal must be dismissed.

Since September 1993, petitioners’ children and stepchildren, Michael J. and Sean P. O’Brien, have attended respondent's school. In October 1997, the district’s transportation department requested proof of residency from petitioners because Michael and Sean were being bused from what appeared to be commercial property at 1510 Orchard Park Road. In May 1998, Michael’s third grade teacher received a check from petitioner John Monahan for a school book order with an address of 165 East Milnor in Lackawanna, outside the boundaries of respondent's district. In response to questioning, Michael informed the teacher that he was not allowed to tell where he lived.

On May 21, 1998, a district social worker visited 1510 Orchard Park Road. He discovered that the address was actually a large commercial building, housing an automobile business named "General Auto Sales & Service, Inc." He also found an insurance office on the first floor and an electronics firm on the second floor. The salespersons at 1510 Orchard Park Road informed the social worker that the property was a business.

On June 1, 1998, the social worker visited the property again and was told by petitioner, Mr. Monahan, that it was his place of business. He further explained that he had residential property at 165 East Milnor in Lackawanna, outside the boundaries of the district. The social worker observed that the property at 1510 Orchard Park Road contained a kitchen area, a bathroom and an office waiting room with a convertible couch, with no evidence of items of a personal residence. On September 9, 1998 (the first day of the 1998-99 school year), Michael told the social worker that he eats, sleeps and lives at the East Milnor address.

On October 8, 1998, respondent informed petitioners that they were not legal residents of the district and were therefore not entitled to have their children attend school tuition free. This appeal was commenced and respondent has permitted the students to remain in attendance pending a final determination.

The petition 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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Boehm, 37 id. 208, Decision No. 13,844; Appeal of Keenan, 36 id. 6, Decision No. 13,635). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). For the purposes of Education Law "3202(1), residence is established by one’s physical presence and the intention to remain there permanently (Appeal of Digilio, 37 Ed Dept Rep 25, Decision No. 13,795; Appeal of Doyle-Speicher-Maldonado, 35 id. 110, Decision No. 13,481; Appeal of Cupid, 34 id. 609, Decision No. 13,426). Moreover, for the purposes of Education Law "3202, a person can have only one legal residence (Appeal of Gannon, 37 Ed Dept Rep 135, Decision No. 13,823; Appeal of Elliot, 36 id. 70, Decision No. 13,660; Appeal of Britton, 33 id. 198, Decision No. 13,022).

Petitioners admit that they have a residence outside the district where petitioners’ son Michael indicates that he "eats and sleeps". Furthermore, petitioners admit that they added a kitchen to the commercial property in the district for the sole purpose of complying with residence requirements, not with the intention of actually making it their sole residence. Petitioners’ argument is premised on the fact that they own property in the district, pay taxes on it, and would therefore like to make use of it for purposes of their children’s education.

The record reflects that while petitioners own commercial property in the district, they do not reside there. Accordingly, I find that respondent's determination was not arbitrary, capricious or unreasonable and should not be set aside.

In light of my determination, there is no need to address the parties’ remaining contentions.