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Decision No. 14,365

Appeal of DANIEL WEISBERG, on behalf of MARISSA WEISBERG, from action of the Board of Education of the Clarkstown Central School District regarding residency.

Decision No. 14,365

(May 18, 2000)

Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Clarkstown Central School District ("respondent") that his children are not district residents. The appeal must be dismissed.

Petitioner, his wife and two children, resided at 15 Tulip Court, Nanuet in respondent's district ("district") until July 1998. In July 1998 petitioner sold the Tulip Court residence and he and his family moved into petitioner's parents' house, also located within the district. However, petitioner's parents had contracted to sell their house. Therefore, on August 15, 1998, petitioner and his family moved to his mother-in-law's house at 7 Daisy Court, Nanuet, located in a neighboring district.

On August 18, 1998, respondent's administrative assistant to the assistant superintendent for business, sent petitioner a letter stating that she had been informed that petitioner no longer resided at 15 Tulip Court, Nanuet and instructed petitioner to contact the district by September 2 or it would be assumed that petitioner had moved out of the district. On August 21, 1998, petitioner met with the assistant superintendent for business and subsequently petitioner and his wife spoke to the superintendent. Petitioner stated that his family was only temporarily residing outside the district and that he was seeking to purchase another house within the district. An agreement was ultimately reached whereby petitioner's daughter would be permitted to continue to attend respondent's schools provided that petitioner initially paid approximately one-quarter ($1,250) of respondent's annual tuition for nonresident students and if petitioner relocated within the district by November 13, 1998, that tuition payment would be refunded to him. In the event petitioner continued to reside outside of the district after that date, he would be required to pay another tuition installment. On December 2, 1998, petitioner contracted to build a new home within the district. However, because of title problems, the contract was canceled in January 1999. Petitioner did not pay any further installments to the district. On June 15, 1999, respondent sent petitioner a bill for the remaining three-quarters of the tuition for the 1998-99 school year. On June 17, 1999 petitioner and his wife entered into a contract to purchase a home at 79 Burda Lane, New City, within the district. This appeal ensued and petitioner's request for interim relief was denied on July 21, 1999.

Petitioner contends that his permanent residence continues to be in respondent's district and that his absence was merely temporary. Petitioner also contends that he actively searched for new houses in respondent's district and that the real estate market made it difficult to purchase a new home more quickly. Petitioner further alleges that he never received final notice of respondent's residency determination. Petitioner requests a determination that his children are residents of the district and that respondent refund his $1,250 tuition payment.

Respondent contends that the petition is untimely and asserts that the tuition agreement obviated the need to issue a final residency determination. Respondent further contends that petitioner voluntarily sold his home, was absent from the district for approximately one year, and as such cannot claim that such absence was merely temporary.

Initially, I must address two procedural issues. First, I note that petitioner's reply reiterates many of the points made in the petition and belatedly adds assertions regarding continuing ties to the community. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (8 NYCRR "" 275.3 and 275.14; Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). Therefore, I have not considered that information in making this decision.

As for the timeliness issue, an appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Section 100.2(y) of the Commissioner's regulations requires that within two business days of making a residency determination, the board or its designee must give written notice of its decision to the petitioner, which notice must include the basis for the decision, the date the child will be excluded from the district's school, and notice of the right to appeal to the Commissioner within 30 days of the determination.

There is no evidence in the record that any such written notice was ever provided to petitioner, although it is clear that respondent only allowed petitioner's daughter to continue attending its schools because petitioner paid partial tuition. Respondent argues that its final determination was made on August 27, 1998 when petitioner made the quarterly payment and picked up the letter from the superintendent outlining the tuition agreement. Respondent further argues that it did not need to follow "100.2(y) because of the agreement. I do not find that argument persuasive, especially in light of the open-ended nature of the agreement and the fact that respondent allowed petitioner's daughter to continue to attend its schools without any further tuition payments until the conclusion of the 1998-99 school year. Additionally, there is no indication that respondent ever informed petitioner of his right to appeal the initial residency determination. Respondent's failure to comply with the procedure set forth in the regulation in this case constitutes "good cause" to excuse any late filing. Furthermore, petitioner served his petition on June 30, 1999, within 30 days of the date of his receipt of respondent's tuition bill. Accordingly, I will not dismiss the appeal as untimely (Appeal of Berliner, 38 Ed Dept Rep 181, Decision No. 14,010; Appeal of Khatib, 36 id. 100, Decision No. 13,670).

I will now address the merits of this appeal. Education Law "3202(1) provides:

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 Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001; Appeal of Rivkin, 37 id. 370, Decision No. 13,882; Appeal of Simond, 36 id. 117, Decision No. 13,675). 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, Decision No. 13,823; Appeal of Digilio, 37 id. 25, Decision No. 13,795; Appeal of Elliott, 36 id. 70, Decision No. 13,660). A person can have only one legal residence (Appeal of Gannon, supra; Appeal of Britton, 33 Ed Dept Rep 198, Decision No. 13,022). 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, Decision No. 13,825; 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, Decision No. 12,471; Appeal of Richards, 25 id. 38, Decision No. 11,490). 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).

In the instant appeal, it is undisputed that petitioner voluntarily sold his residence in respondent's district and lived in his mother-in-law's house in a neighboring district for the entire 1998-99 school year. During that time, he sought to purchase or build a new, larger home for his family. In an attempt to establish his intention to remain in the district, petitioner submits an affidavit from a realtor who states that petitioner's search for a new residence was "primarily concentrated" on houses located in respondent's district. This statement, however, does not conclusively establish that petitioner sought to return exclusively to the district. Rather, it suggests that petitioner also considered purchasing a home outside the district. Furthermore, while petitioner may have entered into a contract to build in respondent's district, in December 1998, such contract was not entered into until some five months after petitioner sold his home. This contract was canceled in January 1999 due to a title problem. Thus, during the 1998-99 school year, petitioner did not have a continuing connection to, or ownership interest in property within respondent's district. A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district. Indeed, a family’s intentions in September may change as time passes and circumstances change.

In this case, petitioner was absent from the district for a significant period of time. He acknowledges that he had trouble locating suitable housing within the district. Under those circumstances, as the school year progressed and petitioner still had made no substantial progress toward a return to the district, it was not unreasonable for respondent to conclude that petitioner’s absence was more than temporary. His eventual purchase of a house within the district did not retroactively make him a district resident. Further, the petition is devoid of any other evidence of continuing ties to the community. Although petitioner belatedly claims in his reply to have continuing ties, his claims are unpersuasive and he offers no evidence to support them. In short, based on the record before me, I cannot conclude that respondent's determination was arbitrary and capricious.