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Decision No. 14,793

Appeal of ROSEANNA CUSHMAN, on behalf of her daughter VANESSA, from action of the Board of Education of the North Salem Central School District and Debra Jackson, Superintendent of Schools, regarding residency.

Decision No. 14,793

(August 23, 2002)

McGuire, Kehl & Nealon, LLP, attorneys for respondents, Terri E. Simon, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Salem Central School District ("respondent board") that her daughter, Vanessa, is not a district resident. The appeal must be dismissed.

In April 2000, petitioner"s husband entered into a contract to purchase property and construct a home on Hardscrabble Road within the North Salem Central School District. By letter dated August 5, 2000, petitioner notified respondent Superintendent Jackson of the contract to build a home in respondents" district and requested the enrollment of her daughter in North Salem High School. The letter indicated that, at the time, petitioner"s family was "in the midst of moving from New Rochelle [New York] to Ridgefield" and furnished an address in Ridgefield, Connecticut.

By letter dated August 8, 2000, Superintendent Jackson notified petitioner that her daughter would be permitted to enroll in the North Salem Central School District, effective September 6, 2000, noting:

The Board of Education policy requires residency within sixty calendar days of the first day of school. Should you not be residing at Hardscrabble Road within sixty days, the Board will require tuition calculated from the September 6th entry date. (emphasis added)

By December 2000, construction had not yet begun on the Hardscrabble Road property. Petitioner continued to transport her daughter from Ridgefield, Connecticut. By letter dated December 7, 2000, Superintendent Jackson notified petitioner:

If you have determined that residency will not take place in the very near future, I would ask that you forward a letter of application to me requesting permission to continue the enrollment of your child in the North Salem Central School District, along with a copy of the receipt for taxes paid [on the property] to the school district. Tax payments would be applied toward the satisfaction of non-resident tuition.

Superintendent Jackson received no reply.

In September 2001, Superintendent Jackson obtained information from Donald Rossi, attorney for the seller of the Hardscrabble Road property, that the sale contract had been terminated. Further, Mr. Rossi informed her that petitioner had not paid any property taxes on the land, but rather, the current owner of the property had paid them. On October 19, 2001, respondents billed petitioner for her daughter"s tuition for the 2000-2001 and 2001-2002 school years. Although petitioner"s husband indicated he would make monthly payments, he failed to do so.

By letter dated January 11, 2002, Superintendent Jackson notified petitioner that, based on her determination that petitioner"s daughter was not a district resident, petitioner must register Vanessa in her district of residence within five days of receipt of the letter. Respondent superintendent further informed petitioner of her right to appeal the decision to the Commissioner of Education within 30 days. Superintendent Jackson also noted that petitioner still owed tuition for 2000-2001 and for September 2001 to January 2002.

On or about January 31, 2002, petitioner"s attorney submitted a letter to me purporting to appeal the residency decision. By letter dated February 8, 2002, my Office of Counsel returned petitioner"s letter as failing to comply with the regulatory requirements for initiating an appeal. By letter dated February 13, 2002, Superintendent Jackson notified petitioner that, as she had not appealed to the Commissioner of Education within the 30-day time period, her daughter, Vanessa, would be excluded from school February 15, 2002. Superintendent Jackson included a tuition invoice for 2000-2001 and for September 2001 through February 15, 2002. She also stated, "[w]e will forward Vanessa"s records to her new school as soon as we are notified by that institution, and receive a request for records." On February 15, 2002, petitioner properly initiated this appeal by service of a petition in accordance with regulatory requirements. As part of her appeal, petitioner sought interim relief directing respondents to admit her daughter to its school during the pendency of this appeal. This request was denied on March 5, 2002.

Petitioner admits that she and her daughter do not reside in respondents" district, but asserts that her family is "actively seeking" a residence in the district. She claims it is premature to remove her daughter from respondents" schools when she "will only be returning again in what is hopefully a short time." Petitioner also challenges respondents" request for retroactive tuition based upon respondents" knowledge that her residence in the district was dependent upon completion of her construction contract. Petitioner also claims that her daughter was denied her grades during the pendency of this appeal. As part of the March 5, 2002 decision denying petitioner"s request for interim relief, respondents were directed to comply with the federal Family Education Rights and Privacy Act (20 USC "1232-g) with respect to petitioner"s right to access her daughter"s grades. Finally, petitioner asks that her time to initiate an appeal be extended to permit the late service of her petition on February 15, 2002. Respondents contend that the appeal must be dismissed as untimely. Respondents further assert that the determination that petitioner"s daughter is not a district resident is in all respects proper.

Before turning to the merits, I will first address the timeliness issue. Section 275.16 of the Commissioner"s regulations requires that an appeal be initiated within 30 days of the making of the decision or the performance of the act complained of. The Commissioner, in his sole discretion, may excuse the failure to commence an appeal within the time specified for good cause shown. Although petitioner"s attorney wrote a letter on January 31, 2002, challenging respondents" January 11, 2002 determination, such letter failed to comply with the regulatory requirements for initiating an appeal inasmuch as the letter had not been served upon respondents (8 NYCRR "275.8), did not contain the proper notice (8 NYCRR "275.11), and was not verified (8 NYCR "275.5). A proper petition complying with the regulations was not served until February 15, 2002 " beyond the 30-day time period. Petitioner provides no explanation for her failure to properly initiate this appeal within the required 30-day time period, but merely asks that I extend the period. Except for unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of D.C., 41 Ed Dept Rep ___, Decision No. 14,684; Appeal of Vigliotti, 40 id. 344, Decision No. 14,493). Petitioner offers no evidence of unusual circumstances in this case which would warrant the excuse of petitioner"s delay. Accordingly, the appeal is dismissed as untimely.

The appeal must also 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 Curran, 42 Ed Dept Rep ___, Decision No. 14,772; Appeal of Brown, 42 id. ___, Decision No. 14,760; Appeal of L.W., 41 id. ___, Decision No. 14,717). A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Curran, supra; Appeal of James, 41 Ed Dept Rep ___, Decision No. 14,752). For purposes of Education Law "3202(1), residence is established based upon two factors: physical presence as an inhabitant of the district and the intent to reside in the district (Appeal of Curran, supra; Appeal of Brown, supra; Appeal of Harmon, 40 Ed Dept Rep 4, Decision No. 14,401). Furthermore, for purposes of the statute, a person can have only one legal residence (Appeal of Metze, 42 Ed Dept Rep ___, Decision No. 14,768; Appeal of Silvestro, 40 id. 259, Decision No. 14,476).

Petitioner admits that she and Vanessa reside outside respondents" district. Accordingly, I find that respondents" determination that Vanessa is not a district resident was not arbitrary, capricious or unreasonable and will not be set aside. In the event that petitioner and her family relocate to respondents' district at some future date, petitioner can reapply for Vanessa's admission to respondents' schools at that time.