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Decision No. 15,104

Appeal of W.D. and P.Z-D., on behalf of their son L.D., from action of the Board of Education of the Quogue Union Free School District regarding residency.


Decision No. 15,104


(August 26, 2004)


Kevin A. Seaman, Esq., attorney for petitioners


Guercio & Guercio, attorneys for respondent, Matthew R. Fleming, Esq., of counsel


Petitioners appeal the determination of the Board of Education of the Quogue Union Free School District (�respondent�) that their son, L.D., is not a district resident.  The appeal must be sustained in part. 

In August 2003, petitioners registered L.D. as a student in the district�s pre-K program based on an address on Quogue Street within the district.  In early September 2003, respondent�s superintendent received information that petitioners were actually residing at Oneck Lane in Westhampton Beach, outside the district.  After he observed petitioners and their vehicles at Oneck Lane, the superintendent hired a private investigator.  By letter dated November 4, 2003, the superintendent notified petitioners of his intention to hold a residency hearing. 

At the hearing on November 21, 2003, petitioners testified that at the time they registered L.D., W.D. was employed at the Inn at Quogue, within the district, and had been offered a cottage there to reside in with his family after Labor Day.  After they moved in, W.D. lost his job and the family had to move.  Petitioners then leased a dwelling on Quaquanantuck Lane in the district, from October 1, 2003 through June 15, 2004, and on September 23, 2003, paid in advance the full lease amount of $7,000.  Petitioners moved into an unheated cottage on the property until December 1, when they moved into the main house.  

P.Z-D. testified that she also owns a residence on Oneck Lane in Westhampton Beach, outside the district, where she had resided for 29 years and where her elderly mother continues to reside.  P.Z-D. further testified that prior to December 1, the family occasionally stayed overnight at the Oneck Lane house for several reasons including that P.Z-D. was undergoing chemotherapy treatment and needed her mother�s assistance with childcare.  P.Z-D. explained that her mother is elderly and needs assistance, that the cottage was not available during weekends in October, and that the cottage was not winterized.

By letter dated December 15, 2003, a hearing officer designated by respondent informed petitioners of his determination that L.D. was not a district resident and would be excluded from the pre-K program as of January 5, 2004.  This appeal ensued.  Petitioners� request for interim relief was granted on January 15, 2004.

Petitioners assert that they are district residents.  They contend that the surveillance report is deficient and that the hearing officer arbitrarily rejected legitimate explanations for their presence at Oneck Lane.  They also complain that neither the superintendent nor respondent reviewed the hearing officer�s findings.  They request annulment of the hearing officer�s decision.

Respondent asserts that the hearing officer was properly appointed and had authority to make the residency determination.  Respondent contends that the evidence supports the hearing officer�s rational determination that petitioners are not district residents.

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 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 General, supra; Appeal of Sobel, 43 Ed Dept Rep ___ Decision No. 14,931).

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).  The hearing officer�s December 15, 2003 cover letter to petitioners, containing his determination, states that �[a] determination was made on December 11, 2003 that your son is not a resident of the Quogue Union Free School District� and that he is not entitled to attend district schools effective January 5, 2004.  This in fact is contrary to the actual determination wherein the hearing officer states: �I conclude that prior to August of 2003, the parents were domiciled at . . . Oneck Lane in the Westhampton Beach Union Free School District� and that �their domicile up to the date of the hearing remained . . . Oneck Lane . . . .�  However, the hearing officer also states that �[t]hereafter, the parents attempted and did establish a residence within the Quogue Union Free School District solely for the purpose of having their son, [L.D.], enroll in that District�s Pre-K program . . . .� (Emphasis added)

The hearing officer�s language suggests that although petitioners established residency within the district, L.D. is not entitled to attend district schools because the reason they relocated was for school purposes.  Families may, and often do, relocate and establish residency based on their preference of school districts, particularly as their children reach school age.  This is not to be confused with situations in which parents rent or purchase property in a district for the sole purpose of having their children attend district schools without intending to become district residents (see, Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  Nor should it be confused with situations in which parents transfer custody and control of their child to a third party merely for the purpose of establishing the child�s residency, apart from the parents, in order for the child to take advantage of district schools (see, Appeal of Cuesta, 42 Ed Dept Rep 6, Decision No. 14,755).

In this case, since the hearing officer found petitioners to be district residents and since there is no indication that L.D. lives apart from his parents, the determination that L.D. is not a district resident and not entitled to attend district schools is arbitrary, capricious and unreasonable and must be set aside.

As to whether petitioners were residents prior to the December 11, 2003 determination, the hearing officer�s determination that petitioners thereafter established a residence within the Quogue Union Free School District renders the issue moot.  The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Steinbrecher, 43 Ed Dept Rep ___, Decision No. 15,008; Appeal of T.B. and N.B., 42 id. 142, Decision No. 14,803; Appeal of Tobias, 41 id. 51, Decision No. 14,612).