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Decision No. 15,446

* Subsequent History: Matter of Jochnowitz v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; June 8, 2007. *

Appeal of JAY and LISA JOCHNOWITZ, on behalf of their daughters JESSICA and VICTORIA, from action of the Board of Education of the Guilderland Central School District and Gregory J. Aidala, Superintendent, regarding residency.

Decision No. 15,446

(August 21, 2006)

Girvin & Ferlazzo, PC, attorneys for respondents, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal a residency determination of the Board of Education of the Guilderland Central School District (“board”) and Superintendent Gregory J. Aidala (“superintendent”), collectively referred to as “respondents.”  The appeal must be dismissed.

In the fall of 2005, the superintendent commenced a residency investigation because an out-of-district telephone number was listed on the students’ emergency information card.  By letter dated September 28, 2005, the superintendent notified petitioners that he had received information that they were residing in the Berne-Knox-Westerlo Central School District.  The superintendent offered to meet with petitioners and requested that they provide documentation of their residence if they wished to challenge this information.

Lisa Jochnowitz met with the superintendent and supplied copies of a driver’s license, a tax return, a telephone directory listing, an election registration, assessment disclosure notices, tax receipts and utility bills showing petitioners’ address as Western Avenue, within the district.  Nonetheless, the district hired a private investigator, who conducted surveillance between October 8 and November 5, 2005.  On three weekday mornings, the investigator observed the children being driven to school from the residence outside the district.

By letter dated November 28, 2005, the superintendent notified petitioners of his determination that their daughters were not district residents and would be excluded from attendance after December 23, 2005.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 30, 2005.

Petitioners assert that their legal, permanent residence is within the district, that they maintain significant economic and social ties within the district, and that respondents’ residency determination violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution.  Respondents contend that petitioners are not district residents and that the appeal must be dismissed because the petition is not verified.

Initially, I will address several procedural issues.  Respondents assert that the petition is not properly verified as required by §275.5 of the Commissioner’s regulations.  While petitioners should have included a copy of the verification with the papers served on respondents, I will excuse this omission because petitioners were not represented by counsel and my Office of Counsel received a verified petition (Appeal of Meringolo, 45 Ed Dept Rep 128, Decision No. 15,281; Appeal of M.M., 42 id. 323, Decision No. 14,870).

I have not, however, considered petitioners’ memorandum of law in this appeal.  Pursuant to §276.4 of the Commissioner’s regulations, petitioners were required to serve a copy of their memorandum of law upon respondents and file the memorandum with proof of service, within 20 days after service of the answer.  Respondents served their answer on December 29, 2005.  Allowing four additional days for service by mail, petitioners’ memorandum of law was due no later than January 23, 2006.  Although petitioners were not represented by counsel in this appeal, they appeared with an attorney to challenge respondents’ residency determination in Supreme Court, Albany County on January 13, 2006.  The attorney who represented petitioners in Supreme Court served and submitted a memorandum of law in this appeal by mail under a cover letter dated June 20, 2006.  While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]), there has been no such showing here.

Petitioners contend that respondents’ determination violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because parents of schoolchildren must meet a more onerous standard to establish residency under the Education Law than elected officials and public officers must meet to establish residency under other statutes.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Murray, 43 Ed Dept Rep 400, Decision No. 15,031; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804; Appeal of Finkel, 41 id. 74, Decision No. 14,619).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeals of American Quality Beverages, LLC, et al., 42 Ed Dept Rep 144, Decision No. 14,804).  Therefore, I will not address petitioners’ constitutional claim in this appeal.

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 Innocent, 44 Ed Dept Rep 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).  Petitioners lived in a house in the district from 1998 to 2000.  Although they maintain a business on Western Avenue, within the district, and periodically stay overnight in a residential unit on Western Avenue, petitioners acknowledge that they spend most nights of the week at a house outside the district which they own, and that they drive the children from there to respondents’ schools.  Accordingly, the documentation petitioners produced showing their address as Western Avenue does not establish their physical presence as inhabitants within the district or their intention to reside there.

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).  After considering petitioners’ admissions and the investigator’s surveillance report, I cannot find that respondents acted arbitrarily or capriciously in determining that petitioners’ children are not district residents.  If petitioners and their daughters relocate to a residence within respondents’ district at some future date, petitioners may at that time reapply for their daughters’ admission (see Appeal of Meringolo, 45 Ed Dept Rep 128, Decision No. 15,281).