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Decision No. 15,456

Appeal of SHAHED HUSSAIN, on behalf of his children SHAHYAR and NAUMAN, from action of the Board of Education of the North Colonie Central School District regarding residency.


Decision No. 15,456


(August 25, 2006)


David W. Morris, Esq., attorney for respondent


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the North Colonie Central School District (“respondent”) that his sons, Shahyar and Nauman, are not district residents.  The appeal must be dismissed.

Petitioner’s sons enrolled in respondent’s high school at the beginning of the 2005-2006 school year.  At that time, petitioner informed the district that his home, which had been damaged by a fire, would be ready for occupancy in October 2005.  In the meantime, petitioner and his sons resided within the City School District of the City of Saratoga Springs.  Petitioner signed an agreement to pay monthly tuition to respondent if he was unable to establish residency by October 1, 2005, until such time as he actually moved into the district.

In January 2006, respondent excluded petitioner’s sons because they were still residing outside of the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 15, 2006.

Petitioner contends that his residence in the district was damaged by fire two years ago.  He maintains that at that time he moved into an apartment in the district so that his sons could continue to attend respondent’s schools.  He claims that he and his family then temporarily relocated to another state.  He asserts that the family moved back to the area and bought a motel in Saratoga Springs, where they intended to live until the house in the district was rebuilt.  He also contends that there were numerous difficulties which delayed the completion of the house.  In the petition, he claims that the house would be completed within one month and that he would be willing to pay tuition to allow his children to remain in respondent’s schools.

Respondent contends that petitioner admits he does not reside in the district and that petitioner’s in-district property is for sale.

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).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  A person’s temporary absence from a 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 Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757).  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, 39 id. 737, Decision No. 14,365).

Because petitioner stated that his house would be ready for occupancy by March 2006, in July, pursuant to �276.5 of the Commissioner’s regulations, my Office of Counsel requested that petitioner submit a notarized affidavit setting forth the address where he and his sons currently reside.  Petitioner did not respond to this request.

Petitioner admits that he and his children have been residing in another school district at a motel owned by him.  After approximately two years petitioner’s house in the district was not ready for occupancy.  He submitted no evidence of continuing ties to the community or additional efforts to return.  Pending home construction does not, in and of itself, establish residency (Appeal of Geithner, 43 Ed Dept Rep 450, Decision No. 15,047; Appeal of Sobel, 43 id. 93, Decision No. 14,931) Thus, on the record before me I cannot conclude that respondent’s determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner retains the right to reapply to the district for admission of his sons at any time should circumstances change (Appeal of Holder, 44 Ed Dept Rep 32, Decision No. 15,088; Appeal of a Student with a Disability, 43 id. 80, Decision No. 14,926).