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Decision No. 15,218

Appeal of J.V., on behalf of her children, from action of the Board of Education of the Greece Central School District regarding residency.

Decision No. 15,218

(May 2, 2005)

Harris Beach LLP, attorneys for respondent, Alfred Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greece Central School District ("respondent") that her two children are not district residents. The appeal must be dismissed.

Respondent began an investigation into petitioner's residency in November 2003. Respondent's investigator conducted surveillance of a residence located outside of the district between November 3 and 18, 2003. On five mornings during this period, the investigator observed petitioner drive her children from the out-of-district residence to respondent's school. On two other mornings, the investigator observed petitioner's children being driven to school from the out-of-district residence but did not identify the driver.

Respondent's investigator resumed the surveillance of the out-of-district residence between June 15 and 17, 2004. On two mornings, petitioner drove her children from the out-of-district residence to a school bus stop from which her children were transported to respondent's school, and on the third morning, another individual drove the children from the out-of-district residence to the same school bus stop. On review of the district's records, respondent's designee for residency matters ("respondent's designee") found that the home telephone number provided by petitioner on student data forms in August 2003 belonged to the out-of-district residence.

In July 2004, respondent's investigator interviewed two neighbors who live near the address that petitioner claims to be her district residence. According to the investigator, one neighbor said that he knew petitioner and that she had not lived at that residence for at least one and one-half years, and the other neighbor said that no school-age children lived at the address.

By letter dated July 21, 2004, respondent's designee advised petitioner of the results of the investigation and the determination that petitioner and her children were not district residents, and provided petitioner with an opportunity to respond. In a letter dated July 27, 2004, respondent's designee made a final determination in the matter, finding that petitioner and her children were not district residents. He reiterated the findings of the investigation and added that when the July 21, 2004 letter was hand-delivered to petitioner at the out-of-district residence, her name was on the mailbox at that address. This appeal ensued.

Petitioner claims that she owns a house in the district and that this house is her permanent residence. She claims that she is temporarily residing outside of the district because she is afraid of her former husband but plans to return to the district residence by August 2005. Respondent claims that petitioner and her children reside outside of the district and consequently petitioner's children do not have the right to attend the district's schools free of charge.

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 Marshall, 43 Ed Dept Rep 47, Decision No. 14,911; Appeal of B.O. and D.O., 42 id. 42, Decision No. 14,769; Appeal of Metze, 42 id. 40, Decision No. 14,768). Residence for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and an intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Marshall, supra; Appeal of B.O. and D.O., supra). Mere ownership of property in a school district does not confer residency status (seeAppeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of O'Herron, 41 id. 1, Decision No. 14,591).

A person's temporary absence from the school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Weisberg, 39 Ed Dept Rep 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills, et al., Sup. Ct., Albany Co., Special Term (Malone, J.), November 27, 2000, n.o.r.; Appeal of Schwartzburt, 37 id. 139, Decision No. 13,825; Appeal of Kenneth R., 30 id. 297, Decision No. 12,471). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, supra; Appeal of Schwartzburt, supra).

A residency determination will not be overturned unless it is arbitrary and capricious (Appeal of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of Holder, 44 id. 32, Decision No. 15,088). In an appeal to the Commissioner, petitioner has the burden of establishing a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Smith, supra; Appeal of Holder, supra).

The parties do not dispute the fact that petitioner owns a house in the district. Petitioner admits that she is allowing other individuals to live in that house. She states that she is residing outside of the district with her two children on a temporary basis because she is afraid of her former husband and wants to protect her children by living at a location unknown to him. Petitioner submits an order of protection, which prohibits her former husband from having any contact with her and requires a third party to arrange for her former husband's visitation with the children.

The issue in this appeal is whether or not petitioner's absence from the district is temporary. Petitioner submits a number of documents in support of her claim that her permanent residence is within the district, including a driver's license, a tax bill, water bills, utility bills, refuse removal bills, cable bills, and credit card bills, among others. Many of these documents have little probative value because they date to a period prior to November 2003, when respondent began its investigation. Others support the fact that petitioner owns a house in the district, but ownership of property in a district alone does not confer residency status. I do not find that these documents adequately establish continuing ties to the community demonstrating that petitioner's absence from the district is temporary.

While petitioner expresses an intent to return to the district by August 2005, she provides no explanation of the change in circumstance that would enable her to do so. Petitioner's claimed intent to return to the district is insufficient to establish residency, absent evidence of substantial progress toward meeting that objective or at the very least, a concrete and realistic plan to do so (seeAppeal of Collins, supra). Petitioner has failed to supply sufficient evidence demonstrating substantial progress or a concrete and realistic plan. Thus, on the record before me, I cannot conclude that respondent's determination was arbitrary or capricious.