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Decision No. 15,286

Appeal of P.E., on behalf of her son R.J.L., III, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,286

(August 17, 2005)

Ingerman Smith, LLP, attorneys for respondent, Susan Gibson, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Baldwin Union Free School District ("respondent") that her son, R.J.L., III, is not a district resident. The appeal must be dismissed.

During the 2004-2005 school year, petitioner's son attended kindergarten at respondent's Brookside School. Petitioner and her former husband own a home on Mason Street in Hempstead, outside respondent's district. Petitioner's mother owns a home on Maryland Avenue in Freeport, within respondent's district. Petitioner listed the Maryland Avenue address as her residence when she registered her son for kindergarten.

In September 2004, petitioner asked the district to send her mail to a post office box in Baldwin instead of the Maryland Avenue address. This request triggered a residency investigation. A surveillance of the Maryland Avenue address in Freeport was conducted on October 12 and 13, 2004 and no one was observed entering or exiting between 6:50 a.m. and 8:45 a.m. On January 13, 2005, during a further surveillance, no vehicles or activities were observed between 5:45 a.m. and 8:30 a.m.

Respondent's investigators also conducted surveillance of the Mason Street address in Hempstead. On October 15, 18, 19, 20, 21, 22, 26 and 27, 2004, the student was observed leaving the house in the morning with an adult female and entering a vehicle registered to petitioner. On November 1, 3, 4, and 29, 2004, as well as January 13 and 19, 2005, surveillance revealed the student exiting the house in the morning and leaving in one of petitioner's vehicles. Petitioner's vehicles were observed at the Mason Avenue address on November 23 and 26, 2004, December 26, 2004, and January 11, 12, and 13, 2005, and the vehicle registered to petitioner's former husband was never seen at this location.

By letter dated November 12, 2004, respondent's director of pupil services advised petitioner that he believed that she was residing in Hempstead and transporting her son to respondent's Brookside School. The letter indicated that her son would be excluded as a nonresident on November 22, 2004, but invited her to meet with the director on November 19, 2004. After petitioner requested a delay to obtain legal counsel, the director confirmed by letter dated December 15, 2004 that a meeting would be held on January 7, 2005, and extended the exclusion date to January 14, 2005.

At the January 7 meeting, petitioner promised to submit a copy of her divorce decree and utility bills to support her position that she resided with her mother in Freeport and that her husband lived in the Hempstead house. Upon receiving a copy of the divorce decree and utility bills, the director concluded that petitioner had resided in Hempstead, but, based on the new information, he found that she moved to the Baldwin address. He requested payment of $2,719.04 in tuition for the period from October 15, 2004 to January 19, 2005 when she did not live in the district.

The district began a new residency investigation in February 2005, after the student's principal and teacher reported that petitioner's son claimed to be living in Hempstead and not with his grandmother in Freeport. Surveillance resumed at both the Freeport and Hempstead addresses.

On February 4, 2005, a vehicle of unknown registration was parked in front of the Freeport house, but there was no activity between 5:45 a.m. and 7:38 a.m. On February 7, 2005, the same vehicle was parked in front and no activity was observed between 6:00 a.m. and 7:38 a.m.

Petitioner's son was observed exiting the Hempstead house on the mornings of February 4, 7, 14, 17, 18 and 28, 2005 and being driven away in a vehicle registered by petitioner. Petitioner's vehicles were seen parked at this residence on February 3, 6, 7, 8, 9, 10, 11, 15, 16, 17 and 19, 2005. On February 10, 2005 at 7:38 a.m. and February 11, 2005 at 7:50 a.m., petitioner was observed driving from Hempstead in the direction of the Brookside School. Respondent's investigator also discovered that petitioner's address was listed in the 2004 Verizon telephone directory at the Hempstead address.

Respondent's investigator also obtained online information from Credit Header that petitioner 's former husband resides on 177th Street in Jamaica, Queens and observed a vehicle registered to him at that address on February 19, 24, 25, and 27, 2005. No vehicle registered to petitioner's former husband was seen at the Hempstead residence.

By letter dated February 15, 2005, the director of pupil services advised petitioner that information suggested that she did not reside in the district. The letter invited her to meet with him on March 2, 2005 to consider any documentary evidence of residency and to discuss the factual basis for his conclusion that her son was being transported from Hempstead to attend respondent's schools. The letter set March 9, 2005 as the date her son would be excluded from school. Petitioner declined the March 2nd meeting and commenced this appeal. Petitioner's request for interim relief was granted on March 18, 2005.

Petitioner contends that she resides with her mother at the Maryland Avenue address in Freeport, where she regularly receives mail. Petitioner admits co-owning a home on Mason Street in Hempstead with her former husband, but asserts that her car is parked there only when she transports her children to visit their father, and that her son sometimes stays there overnight. Petitioner further alleges that the district denied her due process.

Respondent contends that petitioner resides at the Mason Street address in Hempstead. Respondent argues that evidence from extensive surveillance supports its conclusion that petitioner does not reside in its district.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's 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., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent , 44 id. 81, Decision No. 15,105).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101; Appeal of I. B., 44 id. 44, Decision No. 15,093; Appeal of Hauk, 44 id. 36, Decision No. 15,090). In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeals of St. Villien, 44 Ed Dept Rep 69, Decision No. 15,101).

Section 100.2(y) of the Commissioner's regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools. This provision requires that prior to making a determination, the board or its designee must provide the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district. It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR �100.2[y]; Appeal of Humphrey, 43 Ed Dept Rep 117, Decision No. 14,940; Appeal of a Student with a Disability, 41 id. 52, Decision No. 14,613). The regulation does not require a formal hearing or representation by counsel (Appeal of Rosen, 43 Ed Dept Rep 87, Decision No. 14,929; Appeal of Marbury, 41 id. 119, Decision No. 14,634).

On more than one occasion, respondent's residency designee provided petitioner with written notice and an opportunity to provide information concerning her residency. Petitioner produced no evidence that she owns, rents or leases property in the district. Moreover, her telephone directory listing is in Hempstead, outside the district. Surveillance over a period of several months supports respondent's determination that petitioner resides in Hempstead and that her former husband resides in Queens. Accordingly, on the record before me, I cannot find that respondent's determination was arbitrary and capricious.

While the appeal must be dismissed, I note that petitioner retains the right to apply to the district for admission of her son at any time should circumstances change (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of Holder, 44 Ed Dept Rep 32, Decision No. 15,088).