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Decision No. 14,461

Appeal of JAMES and MARYBETH O’HERRON, on behalf of MICHAEL, JESSICA and TIMOTHY O’HERRON, from action of the Board of Education of the Marlboro Central School District regarding a residency determination.

Decision No. 14,461

(September 12, 2000)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

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

Petitioners own two houses, one two-family residence located within respondent’s district at 16 Blossom Lane, Newburgh ("Blossom Lane"). The other is a single-family house located at 77 Frozen Ridge Road, Newburgh ("Frozen Ridge"), which is within the City School District of the City of Newburgh. Petitioners’ children have apparently been attending respondent’s schools for several years using the Blossom Lane address. Based upon information from an unidentified third party, respondent’s superintendent informed petitioners that their residency was in question and scheduled a residency hearing for April 7, 2000. Petitioners did not appear at the hearing, and the superintendent rendered a decision in their absence. Petitioners then requested a second hearing, which was held on April 18, 2000. Petitioners appeared at that hearing with information to support their claim of residency in the district. The superintendent decided that petitioners were not, in fact, district residents. Petitioners commenced this appeal and their request for interim relief was granted on May 16, 2000.

Petitioners claim that one unit of Blossom Lane is Mr. O’Herron’s legal residence, while Mrs. O’Herron’s legal residence is Frozen Ridge. Petitioners contend that Mr. O’Herron and the children sleep and eat at Blossom Lane "from time to time" and that Mr. O’Herron has been registered to vote at that address since 1994. Respondent contends that petitioners reside at Frozen Ridge.

Initially, I must address several procedural issues. Petitioners submitted additional exhibits and assertions in their reply. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Adriatico, 39 Ed Dept Rep 248, Decision No. 14,228; Appeal of Breud, et al., 38 id. 748, Decision No. 14,133; Appeal of John W., 37 id. 713, Decision No. 13,965). Therefore, while I have reviewed petitioners’ reply, I have not considered those portions that contain new assertions that are not responsive to new material or affirmative defenses set forth in the answer, nor have I considered exhibits that should have been submitted with the petition. Likewise, I note that respondent -- despite extensions granted by my Office of Counsel -- belatedly submitted its memorandum of law. While I have reviewed that document, I have not considered it in making my determination.

The appeal must be dismissed 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 students whose parents or legal guardians reside within the district (Appeal of Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Byrd, 38 id. 561, Decision No. 14,093).

A child’s residence is presumed to be that of his 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). For purposes of Education Law "3202, "residence" means "domicile" (Appeal of Ifill, 38 Ed Dept Rep 97, Decision No. 13,992; Appeal of Doyle-Speicher-Maldonado, 35 id. 110, Decision No. 13,481), and is established by a demonstration of one’s physical presence as an inhabitant within the district as well as his intention to remain there permanently (Appeal of Ifill, supra; Appeal of Doyle-Speicher-Maldonado, supra). Further, for purposes of the statute, a person can have only one legal residence (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Ownership of property in a school district does not confer residency status (see, e.g., Appeal of Felenczak, 39 Ed Dept Rep 125, Decision No. 14,191; Appeal of Duhaney, 38 id. 94, Decision No. 13,991).

Respondent submits an affidavit from the superintendent who states that at the April 18th residency hearing, petitioners stated that they used the Frozen Ridge address on their tax returns and both presented driver’s licenses with the Frozen Ridge address. Petitioners also stated that they had received a School Tax Relief ("STAR") exemption for that address, for which only a primary residence is eligible. Respondent also submits the results of surveillance conducted by its investigator on four days in May and June of 2000, which states that the investigator did not observe any of the children at Blossom Lane. However, he apparently did not observe them at Frozen Ridge either, although he states that he may have seen one traveling in a van near that address.

Petitioners submit photocopies of a utility bill, Mr. O’Herron’s voter registration, the Blossom Lane deed, and petitioners’ temporary driver’s licenses to establish district residence. However, the driver’s licenses were issued after the residency hearing and appear to be an attempt by petitioners to bolster their position. They also submit an affidavit from the person who lives in the other apartment at Blossom Lane, which states that Mr. O’Herron and the children stayed at that address on April 13, 14, 30 and May 1, 2000. Petitioners further state that they simply took the STAR exemption on the more valuable property.

Petitioners do not claim that they are full-time district residents, and are apparently under the mistaken impression that they can establish residency by staying at Blossom Lane for a certain number of nights and/or meals. Nor do petitioners explain why Mrs. O’Herron’s legal residence was different from Mr. O’Herron’s until their residency status was called into question. They attempt to use prior decisions of the Commissioner of Education to support their argument that children may split their time between the parents’ residences and the parents have the option of choosing which is the residence for school enrollment purposes. However, those decisions refer to families where the parents are divorced or otherwise separated and petitioners do not claim that this is their situation. Therefore, those decisions are not applicable to the circumstances of the instant appeal. Furthermore, petitioners admit that they changed Mrs. O’Herron’s voter registration and driver’s license in an effort to convince the superintendent of their residency within respondent's district.

Based on the record before me, I find that petitioners have failed to establish that they reside at Blossom Lane. Therefore, it was not arbitrary or capricious for respondent to conclude that they are not district residents. I also note that, if respondent allows nonresident students to attend its schools upon the payment of tuition, to the extent petitioners pay taxes on the Blossom Lane property, they would be entitled to a reduction in that tuition pursuant to Education Law "3202(3).