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Decision No. 15,289

Appeal of KANDIE SURVILLA, on behalf of her daughter KASHMIR, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,289

(August 18, 2005)

William F. Chimeri, Esq., attorney for petitioner

Ingerman Smith, LLP, attorneys for respondent, Susan M. 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 daughter, Kashmir, is not a district resident. The appeal must be dismissed.

On August 28, 2003, petitioner registered Kashmir in respondent's district, listing an address on Emerson Avenue, Baldwin. On December 18, 2003, respondent's residency investigator and registrar received a request for a residency investigation because Kashmir allegedly told a counselor that she lived with a family friend on Emerson Avenue, but that her mother lived with her boyfriend in Freeport, outside respondent' s district. When asked why she didn't live with her mother, Kashmir allegedly replied that her mother didn 't want her to attend Freeport High School. Surveillance was conducted on the Emerson Avenue residence and, on three occasions, no activity was noted nor was petitioner's vehicle observed. The residency investigation also revealed that petitioner had no telephone listing at the Emerson Avenue address.

By letter dated April 20, 2004, the district's director of pupil services ("director") advised petitioner that he had reason to believe that Kashmir was not a district resident and that as of April 28, 2004, she was ineligible to attend the district's schools. Petitioner was given the opportunity to meet with the director to present evidence in support of her claim of residency.

By letter dated April 28, 2004, the director notified petitioner of his conclusion that she was not a district resident and that Kashmir was not entitled to attend respondent's schools on a tuition-free basis.

On April 30, 2004, petitioner presented the district with a lease for an apartment on Grand Avenue, Baldwin, ("Grand Avenue") within respondent's district. Based upon the new lease, the district permitted Kashmir to remain in school.

On July 6, 2004, a second residency investigation was initiated because mail sent to the Grand Avenue residence was returned, stating "forwarding time expired." Surveillance of the Grand Avenue residence on 13 occasions between December 3, 2004 and February 19, 2005 during the early morning hours revealed that neither petitioner, Kashmir, nor petitioner's automobile were present. On 13 occasions between January 19, 2005 and March 30, 2005, an investigator found petitioner's car parked outside the Freeport residence during the early morning hours.

By letter dated March 16, 2005, the director notified petitioner of his determination that she was not a district resident and that, as of March 29, 2005, Kashmir was ineligible to attend the district schools. On March 30, 2005, petitioner and her attorney met with the director and presented documentary evidence in support of petitioner's residency. In addition, petitioner's attorney indicated that petitioner stayed at the Freeport address with her boyfriend two or three nights a week when working in Freeport. Respondent' s director asked petitioner to provide the dates on which she stayed in Freeport due to her work schedule. Because many of those dates coincided with dates of the district's surveillance when she and/or her vehicle were observed at the Freeport residence, Kashmir was permitted to continue attending district schools.

The district continued surveillance of the Grand Avenue and Freeport addresses. Additional surveillance showed that on 25 mornings, from April 6, 2005 to May 14, 2005, petitioner's car was never observed at Grand Avenue. On all 25 occasions petitioner's car was present at the Freeport address. On three occasions, petitioner's vehicle was observed traveling from the Freeport address with Kashmir to the Baldwin Senior High School.

By letter dated May 20, 2005, the director notified petitioner of his determination that she was not a district resident and that as of May 30, 2005, Kashmir would be excluded from the district's schools. This appeal ensued. Petitioner's request for interim relief was granted on June 2, 2005.

Petitioner contends that she and her daughter reside on Grand Avenue, within respondent's district, that she never stated that she resides at the Freeport address, and that she provided documentary evidence of her address.

Respondent alleges that petitioner and her daughter do not reside within its district. Respondent maintains that petitioner cannot have two residences for the purposes of Education Law �3202, and that she did not establish residency within its district merely by renting an apartment and paying for utilities.

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).

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of O'Herron, 41 id. 1, Decision No. 14,591; Appeal of Smith, 40 id. 126, Decision No. 14,438).

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).

In support of her claim of residency, petitioner submits a lease agreement for Grand Avenue, reflecting a monthly rent of $1,125. Petitioner also submits check carbons that she alleges are for payment of the rent, although they reflect a rental payment of only $1,000. In addition, petitioner submits KeySpan Energy and Long Island Power Authority (LIPA) bills for several months during 2004 and February 2005. The KeySpan bills range from $10 to $26.20, and the LIPA bills range from $5 to $39. The magnitude of these bills supports respondent's argument that petitioner spends little, if any, time at Grand Avenue.

Petitioner also submits a credit union statement dated February 28, 2005, a copy of an envelope from the Nassau Educators Federal Credit Union postmarked February 16, 2005, numerous Cingular phone bills and a copy of her driver's license, all which reflect the Grand Avenue address.

Notwithstanding this documentation, respondent has submitted substantial evidence suggesting that petitioner does not reside in the district. Respondent conducted surveillance for a total of 49 days over the course of three separate residency investigations. The evidence generated by each investigation shows that petitioner did not maintain a physical presence within the district but, instead, maintained her residence in Freeport.

In light of the results of respondent's extensive surveillance, petitioner's evidence is insufficient to support her claim of residency and, therefore, I find that petitioner has failed to meet her burden of proof (seeAppeal of K.M., 42 Ed Dept Rep 104, Decision No. 14,788). The mere lease of an apartment does not necessarily establish a bonafide residence (seeAppeal of Britton, 33 Ed Dept Rep 198, Decision No. 13,022). Accordingly, based on the record before me, I do not find that respondent's determination was arbitrary and capricious.