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Decision No. 15,047

Appeal of DIRK K. GEITHNER, on behalf of his children THOMAS, IAN and BENEDICTA, from action of the Board of Education of the Haldane Central School District regarding residency.

Decision No. 15,047


(May 6, 2004) 

William R. Biersack, Esq., attorney for petitioner 

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel


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

In September 2001, petitioner registered his sons, Thomas and Ian, in Haldane Elementary School, listing an address on Mountainview Drive in the district and presenting a tax bill for the property and a telephone bill with a post office box address.  At that time, petitioner"s daughter, Benedicta, was not yet of school-age.  At the end of the 2001-2002 school year, the elementary school principal became aware that petitioner was building a house on the Mountainview Drive property, but the house was not complete and petitioner did not yet live there.  By letter dated August 21, 2002, respondent"s superintendent asked petitioner to verify his residence in the district and to submit documentation by August 28, 2002 in order for his children to continue attending the district"s schools.

Petitioner did not submit the requested documentation.  However, petitioner"s wife contacted the superintendent and indicated that petitioner would establish residency in the district by September 27, 2002.  On that date petitioner supplied a copy of a lease agreement for property on Foundry Pond Road, within the school district.  Based on that information, respondent permitted petitioner"s three children to attend district schools.

By letter dated April 12, 2003, petitioner"s landlord notified the superintendent that she had evicted petitioner from the Foundry Pond Road property.  By letter dated May 13, 2003, the superintendent notified petitioner that he was aware that petitioner no longer resided on Foundry Pond Road and again asked petitioner to verify his residence in the district.  The letter gave petitioner until May 21, 2003 to present documentation regarding his residency.  By letter dated May 22, 2003, petitioner"s attorney provided the superintendent with a tax bill and telephone bill listing petitioner"s address on Mountainview Road.

In a letter dated July 23, 2003, the superintendent notified petitioner"s attorney of his determination that petitioner was not a district resident, stating:

To date, we have not received proof that the Geithners actually reside in the Haldane Central School District.  Their . . . Mountainview Road residence is unoccupied. . .

Since we have not received official documentation that the Geithners actually reside in the Haldane Central School District, it is determined that the Geithners are not legal residents of this district.

Based on the superintendent"s residency determination, petitioner"s children were not permitted to enroll in the district"s schools for the 2003-2004 school year.  Petitioner initiated two appeals challenging the residency determination, but subsequently withdrew one.  Petitioner"s request for interim relief in this appeal was denied on September 12, 2003.

Petitioner contends that respondent"s determination is not supported by the evidence in the record and that he was not provided a reasonable opportunity to be heard on the issue of his residency.  Respondent maintains that it has complied with the procedural requirements of "100.2(y) of the Commissioner"s regulations relating to residency determinations and that its determination that petitioner and his children are not district residents 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 Thomas, 43 Ed Dept Rep __, Decision No. 14,963; Appeal of Normandin, 43 id. __, Decision No. 14,950; Appeal of General, 43 id. __, Decision No. 14,948).  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 Thomas, supra; Appeal of General, supra; Appeal of Sobel, 43 Ed Dept Rep __, Decision No. 14,931).  A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of General, supra; Appeal of Sobel, supra).  Further, pending home construction does not, in and of itself establish residency (Appeal of Sobel, supra).

A residency determination will not be overturned unless it is arbitrary and capricious (Appeal of General, supra; Appeal of Newby, 42 Ed Dept Rep 107, Decision No. 14,790).  In an appeal to the Commissioner, 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 General, supra; Appeal of T.K., 43 Ed Dept Rep __, Decision No. 14,935).

Based on the record before me, I find that respondent"s determination that petitioner is not a district resident is neither arbitrary nor capricious.  Petitioner has not presented sufficient evidence to establish that he and his children actually reside at the Mountainview Road address in respondent"s district.  The tax bill and telephone bill provided to the superintendent on May 22, 2003 are not dispositive.  I note that the tax bill was mailed to petitioner to a post office box address.  Moreover, petitioner attaches to his petition a copy of a Notice of Change of Assessment, dated April 28, 2003, describing the Mountainview Road property as "Land and Res 50%Complete" (emphasis supplied).

In addition, respondent submits an affirmation by its attorney to which a copy of petitioner"s withdrawn verified petition is attached.  In that petition, dated August 21, 2003, petitioner asserts that the house on Mountainview Road "will be completed and we will be able to move in by the close of this year."  Respondent also submits an affidavit by its superintendent averring that he visually inspected the house on Mountainview Road in August 2003 and found it uninhabitable. Petitioner did not reply to respondent"s answer and, in particular, to the assertions in the attorney"s affirmation and superintendent"s affidavit.  Accordingly, I find respondent"s determination to be supported by the record.

Petitioner"s assertion that he was not provided with an adequate opportunity to be heard is also without merit.  Section 100.2(y) of the Commissioner"s regulations requires that, prior to making a determination of residency "the board or its designee shall afford the child"s parent . . .  the opportunity to submit information concerning the child"s right to attend school in the district."  The evidence in this appeal unequivocally establishes that respondent complied with the procedural requirements of "100.2(y).  On each occasion that petitioner"s residency was questioned, petitioner received written notice of the opportunity to provide information and documentation to the  superintendent, thus satisfying the requirements of "100.2(y).

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his children at any time should circumstances change (Appeal of Normandin, supra; Appeal of a Student with a Disability, 43 Ed Dept Rep __, Decision No. 14,926).