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Decision No. 14,558

Appeal of DANIELLE LAQUERRE, on behalf of ASHLEY PIERRE, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 14,558

(April 12, 2001)

Angelyn D. Johnson, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her niece, Ashley Pierre, is not a district resident. The appeal must be dismissed.

Petitioner is the legal guardian of her niece, Ashley Pierre. She rents commercial property at 1884 Grand Avenue, Baldwin, New York, within respondent’s district; and she owns a house at 38 Connecticut Avenue, Freeport, New York, outside respondent’s district. Petitioner asserts that she and Ashley reside both in a small studio apartment in the rear of the commercial property at 1884 Grand Avenue and in the house at 38 Connecticut Avenue.

Respondent asserts that on three separate mornings in December 2000 at approximately 8:30 a.m., an investigator employed by the district witnessed petitioner and Ashley exiting the house at 38 Connecticut Avenue and driving to respondent’s Plaza Elementary School. Respondent further asserts that, on eight mornings during this same time period, its investigator also conducted surveillance at the 1884 Grand Avenue address. An affidavit by the investigator indicates that neither petitioner nor Ashley were seen leaving the 1884 Grand Avenue address over the course of this investigation, and that no one responded when he knocked on the door.

By letter dated December 19, 2000, respondent’s Director of Pupil Services notified petitioner of his determination that Ashley was not a district resident. This appeal ensued. Petitioner’s request for interim relief was denied on January 11, 2001.

Petitioner requests a determination that Ashley is entitled to attend respondent’s schools because one of her two residences is located within respondent’s district. Respondent contends that petitioner has not established a bona fide residence in respondent’s district by renting commercial space, and that petitioner continues to reside outside respondent’s district.

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 Rosati, 38 id. 216, Decision No. 14,018).

For purposes of Education Law "3202, 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; Appeal of Britton, 33 id. 198, Decision No. 13,022). Petitioner admits that she owns a house outside respondent’s district. Although petitioner"s documentation establishes that she rents commercial property in respondent"s district where she receives credit card statements and tax returns, it does not establish that she intends this property to be her residence. To the contrary, the record supports the conclusion that petitioner maintains her residence at the 38 Connecticut Avenue address.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioner has not met this burden. Accordingly, I cannot find that respondent acted arbitrarily or capriciously in determining that petitioner is not a district resident.