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Decision No. 14,603

Appeal of DONALDOA OLIVER, on behalf of NEYAMACHAY and TAVOYA COBB-OLIVER, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 14,603

(July 20, 2001)

Ingerman Smith LLP, 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 his children are not residents of the district. The appeal must be dismissed.

Petitioner and his family currently live with his mother-in-law at 67 Grand Avenue in the Freeport Union Free School District. During the 1999-2000 and 2000-2001 school years, petitioner indicated to respondent that he lived at 1068 Ardmore Road, within respondent's school district, and petitioner's children attended school in the district. On February 16, 2001, respondent's residency investigator telephoned petitioner and indicated that petitioner's residency in the district was under investigation. Petitioner admitted that he did not live in the district, but stated that he had moved out of the district 2 1/2 months ago due to health problems and intended to return to the district upon receipt of disability income.

By letter dated March 16, 2001, respondent's director of pupil services notified petitioner that it did not appear that he was a district resident and, unless he provided proof of residency by March 21, 2001, his children would be excluded from the district as non-residents. The residency hearing was postponed to March 29, 2001 at which time petitioner provided no additional documentation. At that time, petitioner indicated that he had moved out of the district six months prior and was actively working with realtors to locate a residence within respondent's school district. During the district's investigation, respondent's investigator questioned the current resident at 1068 Ardmore Road - petitioner's alleged previous address in the Baldwin school district. Respondent obtained a copy of the deed indicating that the current resident purchased the property in July 1999. Respondent also obtained an affidavit from the current owner indicating that she had been the sole occupant of that residence since 1999. Finally, respondent obtained statements from petitioner's three realtors which indicated that petitioner did not contact any of them until March 16, 2001.

By letter dated April 4, 2001, respondent's director of pupil services informed petitioner that, based upon the foregoing information, petitioner did not reside in respondent's district and his children were not entitled to attend the district's schools. Petitioner initiated this appeal on May 4, 2001. On May 15, 2001, I issued an interim order directing respondent to admit petitioner's children to its schools pending a determination on the merits of the appeal.

Upon review of the entire record, the appeal must be dismissed. Education Law "3202(1) provides in pertinent part:

A person over five years 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 Davis, 39 Ed Dept Rep 181, Decision No. 14,207; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). For purposes of Education Law "3202(1), residence is based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 39 id. 207, Decision No. 14,016).

It appears from the record that petitioner and his children have resided at the Freeport address since at least September 2000, and that petitioner left the 1068 Ardmore Road address in respondent's district by July 1999. While petitioner contends that he intends to return to reside in respondent's district when he is financially able, such statement alone is insufficient to establish petitioner's residency in the district (Appeal of Gentile, supra; Appeal of Kenneth R., 30 Ed Dept Rep 297, Decision No. 12,471). Although petitioner indicates he is in the process of looking for a residence in respondent's district, he has submitted no evidence that he has contracted to build, purchase or lease such residence (see, Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001). It is notable that petitioner did not contact any realtor for more than six months after the date he alleges that he left the district and then did so only after notification of respondent's investigation of his residency.

The record before me provides no basis to find respondent acted arbitrarily in determining that petitioner and his children are not district residents.