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Decision No. 14,950

Appeal of PENNY A. NORMANDIN, on behalf of ASHLEY M. MULLER, MIKE J. MULLER, JR. and DAVID S. NORMANDIN, from action of the Board of Education of the Malone Central School District regarding residency.



(August 29, 2003)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, David Larrison, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Malone Central School District ("respondent") that she is not a district resident.  The appeal must be dismissed.

Petitioner owns four contiguous parcels of property intersected by the boundary line between respondent"s school district and the Brushton-Moira Central School District ("Brushton-Moira"). Petitioner"s residence is situated on a parcel of property located in Brushton-Moira.

On April 4, 2001, petitioner enrolled her children and step-son in respondent"s district, where they attended school through the 2002-2003 school year. By letter dated May 1, 2003, respondent"s assistant superintendent notified petitioner that he was unable to verify her residence in respondent"s district.  Petitioner was given the opportunity to request a residency hearing but did not do so.  Thereafter, the assistant superintendent reviewed property maps that confirmed the location of petitioner"s residence on a parcel of property in Brushton-Moira, outside respondent"s district.  On or about May 16, 2003, the assistant superintendent notified petitioner that she was not a district resident and that the children would not be permitted to attend school there after June 26, 2003.  Petitioner appealed that decision to respondent and, by letter dated May 28, 2003, respondent upheld the residency determination.  This appeal ensued.

Petitioner claims that, at the time of enrollment, she was informed by district staff that she resided in respondent"s district.  She further argues that because the children were permitted to attend school in respondent"s district for more than two years, respondent should continue to permit them to do so.  Respondent claims it is not bound by the error of its employees, and that its residency determination is supported by the record.

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 Sobel, 43 Ed Dept Rep ___, Decision No. 14,931; Appeal of Burnett, 42 id. ___, Decision No. 14,825; Appeal of J.M., 42 id. __, Decision No. 14,783).  Residency for purposes of Education Law "3202 is established based upon two factors: physical presence and an intent to reside in the district (Appeal of Sobel, supra; Appeal of Burnett, supra).  A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Sobel, supra; Appeal of Washington, 42 Ed Dept Rep "___, Decision No. 14,820; Appeal of Giminez, 42 id. ___, Decision No. 14,812).

Petitioner admits that her residence is located in  Brushton-Moira.  It is well-settled that, in residency cases, a mistake by a school district in allowing non-resident students to attend its schools does not vest any legal right in such students to continued attendance on a tuition-free basis (Appeal of Aimino, 40 Ed Dept Rep 501, Decision No. 14,537; Appeal of Lascala, 38 id. 16, Decision No. 13,974; Appeal of Marsten, 34 id. 105, Decision No. 13,247).  Therefore, I will not disturb respondent"s residency determination.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of the children at any time should the circumstances presented in the record of this appeal change (Appeal of a Student with a Disability, 43 Ed Dept Rep ___, Decision No. 14,926; Appeal of Santoianni, 40 id. 237, Decision No. 14,470).  In addition, although not raised by the parties to this appeal, I note for their consideration Education Law "3203 which permits, under certain circumstances, the owner of property intersected by the boundary line between two school districts to designate the school district that the children residing in the dwelling on the property shall attend by filing said designation with both school districts by August 1.