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Decision No. 15,109

Appeal of WILLIAM SIGSBY, on behalf of his son JOSHUA, from action of the Board of Education of the East Greenbush Central School District regarding residency.


(August 31, 2004)


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


MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the East Greenbush Central School District (�respondent�) that his son, Joshua, is not a district resident.  The appeal must be dismissed.

Petitioner and his wife purchased a home in respondent�s district in August 2003.  On August 28, 2003 petitioner enrolled his son in respondent�s district and informed respondent�s registrar that they intended to move into the house that fall after renovations were completed.  Petitioner provided the registrar with an address outside the district where he and his family would be living while the house was being renovated.  The registrar informed petitioner that Joshua would be permitted to attend the district�s schools tuition-free provided that residency was established by December 31, 2003. 

In February 2004, respondent�s administrators became aware that Joshua still did not reside in the district.  By letter dated March 26, 2004 respondent�s registrar requested additional information from petitioner.  After reviewing petitioner�s submissions, including a district residency questionnaire, a utility bill for the house in the district, and an automobile insurance card, respondent�s superintendent informed petitioner by letter dated April 29, 2004 that Joshua was not entitled to attend respondent�s schools without payment of tuition.  That letter also informed petitioner that he could apply school taxes paid on the house in the district to the tuition bill.  This appeal ensued.

Petitioner contends that the renovations are taking longer than anticipated because the discovery of black mold necessitated more extensive renovation than had been planned.  Petitioner asserts that Joshua is allergic to this type of mold and that they cannot move into the house until it is removed.  Petitioner maintains that they intend to move into the house soon.  Petitioner also contends that he was unaware that he could become liable for tuition costs.  Petitioner requests a determination that Joshua is a resident of the district and entitled to attend its schools without payment of tuition. 

Respondent argues that petitioner fails to establish that he and his family are district residents.  Respondent asserts that under its policy, if pending legal residence is not established by January 1 of the current school year tuition will be charged.  Respondent asserts that when petitioner registered Joshua on August 28, 2003, the registrar informed petitioner that he would be liable for tuition retroactively if residency was not established by December 31, 2003.  Respondent also argues that the petition should be dismissed because petitioner did not submit an affidavit of service with the petition. 

Section 275.9 of Commissioner�s regulations requires that an affidavit of personal service be transmitted to my Office of Counsel within five days after the service of any pleadings or paper.  The record indicates that the petition was properly served on respondent on May 28, 2004, but the affidavit of service was not received by my Office of Counsel until June 22, 2004.  Respondent, however, expresses no prejudice from petitioner�s filing delay.  Accordingly, I find such delay to be harmless error (SeeAppeal of McSween, 42 Ed Dept Rep 59, Decision No. 14,775).

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 (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of B.C., 43 Ed Dept Rep __, Decision No. 14,946; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769).  Residence for purposes of Education Law �3202 is established based upon two factors: physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., supra; Appeal of B.C., supra; Appeal of B.O. and D.O., supra; Appeal of Metze, supra).  Moreover, for purposes of Education Law �3202(1), a person can have only one legal residence (Appeal of B.C., supra).  Mere ownership of property in a school district does not confer residency status (Appeal of Johnson, 43 Ed Dept Rep __, Decision No. 14,943; Appeal of Crosier, 42 id. 232, Decision No. 14,835; Appeal of O�Herron, 40 id. 204, Decision No. 14,461).

     Based on the record before me, I find respondent�s determination that petitioner and his family are not district residents to be reasonable.  Petitioner admits that he and his family are not living in the house.  Petitioner and his family are not physically present in the district and, therefore, are not district residents (Appeal of Duhaney, 38 Ed Dept Rep 94, Decision No. 13,991).

     In the event that petitioner and his family relocate to respondent�s district at some future date, petitioner can reapply for Joshua�s admission to respondent�s schools at that time.