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Decision No. 15,070

Appeal of NEAL BROWNELL, on behalf of his son DAVID, from action of the Board of Education of the Onteora Central School District regarding residency.



(June 28, 2004)


Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, James P. Drohan, Esq., of counsel


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

     David has been enrolled in respondent"s schools since September 1998.  Prior to May 2002, questions arose as to whether David was residing within respondent"s district.  Petitioner met with respondent"s superintendent and residency officer to discuss his residence and indicated that, due to extenuating circumstances, he and David were forced to move out of the district and were temporarily residing in a mobile home in Kingston, New York, outside respondent"s district.  Petitioner informed respondent"s superintendent and residency officer that he had purchased property within respondent"s district and assured them that he was taking steps to relocate his mobile home there.  Relying on petitioner"s assurances, respondent"s residency officer determined that petitioner established residency within the district for the 2002-2003 school year. 

At the beginning of the 2003-2004 school year, petitioner and David had not moved back into respondent"s district, and respondent determined that David was not a district resident.  Petitioner commenced this appeal.  Petitioner"s request for interim relief was granted on November 25, 2003.

     Petitioner contends that his family temporarily moved out of respondent"s district because of extenuating circumstances and that he intends to reside in respondent"s district.  Petitioner provides a number of reasons for the delay in moving his mobile home, such as the death of one of his contractors, inclement weather, misrepresentations by the contractors, and financial hardship.  Petitioner claimed that the work would be completed by the spring of 2004 and, at that time, he would move his mobile home to respondent"s district. As of March 23, 2004, however, petitioner and David continued to reside in petitioner"s mobile home outside of respondent"s district, and there is no indication that they have since moved. 

     Respondent contends that David is not a district resident.  Respondent argues that district officials have provided petitioner with ample time to return to the district and that after more than two years, petitioner has failed to do so. 

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. 208, Decision No. 14,825; Appeal of J.M., 42 id. 80, 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).  A child"s residence is presumed to be that of his or her parent or legal guardians (Appeal of Washington, 42 Ed Dept Rep 197, Decision No. 14,820; Appeal of Gimenez, 42 id. 176, Decision No. 14,812). 

Where a family loses its permanent home due to circumstances beyond its control, and is forced to make temporary arrangements outside the district of residence, a student does not lose the right to attend school in that district as long as the family"s actions reflect an intent to return (SeeAppeal of Williams, 38 Ed Dept Rep 189, Decision No. 14,011; Appeal of Mountain, 35 id. 382, Decision No. 13,578).  To determine intent, evidence regarding the family"s continuing ties to the community and efforts to return are relevant (Appeal of Williams, supra; Appeal of Mountain, supra).  

Based on the record before me, I find that petitioner has failed to present sufficient evidence that the family"s move was temporary, or that he or David have maintained sufficient ties to the Onteora community.  Petitioner has had over two years to return to the district and has admittedly failed to do so.  It is not unreasonable for a district to deny residency under these circumstances.  If, at some future date, petitioner and David do relocate to an address within respondent"s district, petitioner may then reapply for David"s admission.