Appeal of DONALD CROSS, on behalf of his daughter NATALIE, from action of the Board of Education of the Burnt Hills-Ballston Lake Central School District and Superintendent William E. Hostetter regarding residency.

 

 

(August 13, 2004)

 

The Nicholas D. Morsillo Law Firm, attorney for petitioner, Nicholas D. Morsillo, Esq., of counsel

 

Robert E. Van Vranken, Esq., attorney for respondents

 

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Burnt Hills-Ballston Lake Central School District and Superintendent William E. Hostetter ("respondents") that his daughter, Natalie, is not a district resident.  The appeal must be dismissed.

On September 3, 2003, petitioner"s wife registered Natalie for school, listing Rustic Bridge Road, within the district, as Natalie"s address.  Shortly thereafter, two district employees who resided on the same road informed the superintendent that neither the student nor her parents resided there.  The employees reported that they observed petitioner or his wife transport Natalie on a regular basis to the bus stop at that address.

By letter dated September 30, 2003, the superintendent notified petitioner and his wife that he had information that Natalie was not a district resident.  Specifically, he suggested that Natalie was residing on Kruger Road in Pattersonville, outside the district, and was being transported each day to board the bus at Rustic Bridge Road. The superintendent therefore requested information regarding Natalie"s residency.  Petitioner claims he never received this letter.  The superintendent did not receive a response.

By letter dated October 22, 2003, the superintendent again requested residency information, stating that Natalie would be removed from school if the parents failed to respond by October 31, 2003.  Petitioner telephoned the superintendent on October 29 and informed him that he was repairing and renovating the Rustic Bridge Road property and intended to move there by January 1, 2004.  The superintendent requested, but never received, written confirmation of this intention.

By letter dated January 9, 2004, the superintendent informed petitioner and his wife that he had no evidence that they had relocated to the Rustic Bridge Road address, and that Natalie would be removed from school by January 23, 2004 if they did not confirm their residency within the district.  By letter dated January 30, 2004, the superintendent informed petitioner and his wife that they were not district residents and Natalie"s last day of enrollment would be February 6, 2004.

By letter dated February 2, 2004, petitioner"s counsel requested a residency hearing and asserted that, as of August 1, 2003, petitioner had transferred guardianship of Natalie to her grandfather (petitioner"s father), who resided at the Rustic Bridge Road address.  A meeting was held before the assistant superintendent, acting as the board of education"s designee, on February 12, 2004.  It was agreed that subsequent to the meeting, petitioner and his father could submit modified guardianship affidavits with additional information regarding the purported transfer of Natalie"s custody to her grandfather.  Two documents were submitted to the superintendent on February 18, 2004.  By letter dated February 18, 2004, the superintendent informed petitioner of his determination that Natalie was not a district resident and would be excluded from the district"s schools effective March 5, 2004.  This appeal ensued.  Petitioner"s request for interim relief was denied on March 16, 2004.

Petitioner asserts that he owns the property on Rustic Bridge Road and pays school taxes to the district.  He also asserts that as of August 1, 2003, he transferred guardianship of Natalie to her grandfather, who also resides at the Rustic Bridge Road address, and that Natalie permanently resides there with her grandfather.

Respondents argue that petitioner never moved into the Rustic Bridge Road home and admittedly resided outside the district.  Respondents also argue that petitioner has failed to rebut the presumption that Natalie resides with her parents, because there has been no transfer of custody or control to Natalie"s grandfather.

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 by one"s physical presence combined with an intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Thomas, supra; Appeal of General, supra).

A child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of D.H.C., 43 Ed Dept Rep ___, Decision No. 15,053; Appeal of Donohue, 41 id. 26, Decision No. 14,601).  This presumption may be rebutted upon a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of D.H.C., supra; Appeal of Donohue, supra; Appeal of Burdi, 39 Ed Dept Rep 176, Decision No. 14,206).  Moreover, where the sole reason the child is residing with someone other than the parent is to attend the schools of the district, the child has not established residence (Appeal of Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Pierre, 40 id. 538, Decision No. 14,551; Appeal of Cron, 38 id. 149, Decision No. 14,005).

A person can only have one legal residence (Catlin v. Sobol, 155 AD2d 24, rev"d on other grnds, 77 NY2d 552 (1991) ; Appeal of O'Herron , 41 Ed Dept Rep 1, Decision No. 14,591; Appeal of LaQuerre, 40 id. 565, Decision No. 14,558 ).  If a person owns or rents property both within and outside the school district, only one property can be considered one's legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604 ; Appeal of Scaffa, 40 id. 177, Decision No. 14,453 ).  The mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of O'Herron , supra; Appeal of Smith, 40 Ed Dept Rep 126, Decision No. 14,438 ).

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 he seeks relief (8 NYCRR "275.10; Appeal of General, supra; Appeal of T.K., 43 Ed Dept Rep __, Decision No. 14,935).

     In this case, the petition states that petitioner resides on Kruger Road in Pattersonville, outside the district.  The fact that petitioner owns and pays school taxes on the Rustic Bridge Road property, without more, does not make him a district resident nor does it entitle his daughter to attend district schools.

     Petitioner alternatively argued for the first time in February 2004 that on August 1, 2003 he transferred guardianship of Natalie to his father, who resides at the Rustic Bridge Road address.  Although this guardianship agreement is dated August 1, 2003, the date cannot be verified because it is not notarized.  The agreement also bears petitioner"s wife"s signature, dated February 12, 2004.

Other than the statement in the guardianship agreement, there is no evidence that petitioner transferred total and permanent custody and control of Natalie to his father.  In fact, the evidence belies that conclusion.  Petitioner"s wife, rather than Natalie"s grandfather, registered Natalie for school on September 3, 2003 (seeAppeal of G.B., 41 Ed Dept Rep 137, Decision No. 14,639).  In addition, two private investigators witnessed petitioner and his wife regularly departing Kruger Road in Pattersonville and transporting Natalie to the bus stop at Rustic Bridge Road.

     The petition states that petitioner established Natalie"s residence in anticipation of the family moving to Rustic Bridge Road, thus avoiding a mid-year change in schools.  In fact, the agreement specifies that guardianship is being transferred because the parties desire that Natalie attend the district schools.  The Commissioner has repeatedly held that residency is not established where custody is transferred so that the student may attend the local schools (Appeal of A.F., 41 Ed Dept Rep 115, Decision No. 14,633;  Appeal of Vinci, 40 id. 505, Decision No. 14,539; Appeal of Samuel , 39 id. 94, Decision No. 14,183).

     I therefore find respondents" determination to be neither arbitrary nor capricious.  In light of this determination, I need not address the parties" remaining arguments.  If, at some future date, petitioner and his family do, indeed, relocate to the Rustic Bridge Road address within respondents" district, petitioner may at that time reapply for Natalie"s admission (seeAppeal of Sobel, 43 Ed Dept Rep __, Decision No. 14,931 ).

 

THE APPEAL IS DISMISSED.

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