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Decision No. 15,128

* Subsequent History: Matter of Romeo v New York State Dept. of Educ.; Supreme Court, Albany County (Connor, J.); Judgment granted petition and annulled Commissioner’s decision; entered January 6, 2006; Supreme Court, Albany County (Ferradino, J.); Judgment denied district’s motion to intervene; entered June 13, 2006; June 2006 judgment revd 39 AD3d 916 (3d Dept 2007); January 2006 judgment revd and remitted to Sup Ct for further proceedings 41 AD3d 1102 (3d Dept 2006); Supreme Court, Albany County, Special Term (Connor, J.), dismissed petition; January 8, 2008. *

Appeal of ROBERT A. and PAMELA R. ROMEO, on behalf of their daughters ARIELLA and MARISA, from action of the Board of Education of the Westhill Central School District regarding residency.

Decision No. 15,128

(November 5, 2004)

Romeo and Romeo, P.C., attorneys for petitioner, Robert A. Romeo, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Henry H. Melchor, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Westhill Central School District ("respondent") that their daughters, Ariella and Marisa, are not district residents.  The appeal must be dismissed.

In August 2003, petitioners purchased their present residence located in the Broadview Heights subdivision.  It appears from the record that their southern property line is very close to, if not coincident with, the boundary line dividing the City of Syracuse and the Town of Onondaga, which is also the boundary line between the City School District of the City of Syracuse ("Syracuse") and the Westhill Central School District ("Westhill").  Upon purchase, they were provided with a survey of the property, which did not include a metes-and-bounds description, but merely described petitioners' two-lot parcel by lot and block number. 

Because of uncertainty over the location of their property's southern boundary line, petitioners engaged a professional surveyor to provide a metes-and-bounds description of the exact property line.  The survey indicated that, although the majority of petitioners' property is within Syracuse, their property's southern boundary line extends a small distance into Westhill.  Petitioners also had their southern neighbors' property surveyed. 

On January 23, 2004, petitioners and their southern neighbors executed a boundary line agreement, which they filed with the Onondaga County Clerk's Office.  Pursuant to the agreement, the neighbors conveyed all of their property lying north of the survey's southern boundary line to petitioners and petitioners conveyed all of their property lying south of the boundary line to the neighbors.  The Onondaga County tax mapping authority established a taxable parcel of petitioner’s property within Westhill, and the Town Assessor issued a tentative assessment for the parcel. 

Petitioners sent a letter dated April 19, 2004, to Westhill designating that district, pursuant to Education Law §3203, as the district their children would attend beginning with the 2004-2005 school year.  At its meeting on June 21, 2004, respondent determined that petitioners' daughters were not district residents and were not eligible for enrollment.  The record indicates that respondent based its determination on a May 12, 2004 letter from the Town of Onondaga Codes Enforcement Office to petitioners’ southern neighbors, stating that, because the parties had failed to obtain the approval of the Town Planning Board, the boundary line agreement with petitioners violated the Town of Onondaga’s subdivision regulations.

This appeal ensued.  Petitioners' request for interim relief to allow their children to attend school in respondent's district was denied in August 2004.   

Petitioners allege that their residence is located on property intersected by the boundary line between respondent's district and Syracuse and that their daughters are entitled to attend respondent's schools pursuant to petitioners' designation under Education Law §3203.  They contend that the boundary line agreement did not transfer property, but merely clarified the existing boundary line.

Respondent denies petitioners' allegations and contends that petitioners' designation of respondent's district under Education Law §3203 is invalid because it is based upon the boundary line agreement which on its face, transferred property.  Such transfer allegedly created a resubdivision in violation of the subdivision approval requirements of local and State law.

Education Law §3203(1) provides:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation on or before August first in any year and thereafter . . . and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

To effect a valid designation under Education Law §3203(1), petitioners must establish that "the boundary line between two school districts intersects" their property.  The size of the parcel is not determinative (Crowe, et al. v. MacFarland, et al., 138 AD2d 788; Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 Ed Dept Rep 15, Decision No. 14,597; Appeal of Bd. Educ. of the Syosset Cent. School Dist., 38 id. 791, Decision No. 14,144).  Petitioners have submitted the results of a survey by a professional surveying firm that places the southern boundary of their property "several inches,” as described in the surveyor's affidavit, within respondent's district. 

Nevertheless, according to the May 12, 2004 letter from the Town of Onondaga Codes Enforcement Office, petitioners' boundary line agreement with their southern neighbors, which incorporates petitioners' survey, constitutes a property transfer that seeks to alter the filed subdivision map for Broadview Heights Section 6, thereby disputing the southern boundary line established by petitioners' survey.  The record also indicates that the Onondaga Town Assessor rescinded the prior assessed valuation of petitioners' property allegedly lying within the Town, on the ground that the assessment was based upon an "Error in Essential Fact" because the “transfer concerns a strip of land which altered the filed Subdivision map for Broadview Heights Section 6, without first obtaining Subdivision approval as required by the Town Subdivision regulations (Parcel Deleted)."  Thus, the Town of Onondaga maintains that petitioners' property boundary lines are as set forth in the filed subdivision map and, unless and until the map is properly altered, no part of petitioners' parcel lies within the Town.

Petitioners contend that a subdivision map may differ from the proven exact property line since subdivision lines are "guesstimates" or "estimates" of boundary lines between properties that are used for convenience and not for certainty in title.  However, petitioners have failed to establish that the filed subdivision map for Broadview Heights Section 6 is based upon "guesstimates" or "estimates", or otherwise does not reflect the actual property boundary lines.    

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (Appeal of Pope, 40 Ed Dept Rep 473, Decision No. 14,530; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797).  On the record before me, I am unable to conclude that petitioners' parcel is intersected by the boundary line between Syracuse and Westhill.  Accordingly, I find that petitioners have failed to carry their burden of proof

to establish their entitlement to designate respondent’s district pursuant to Education Law §3203.