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Decision No. 15,607

Appeal of MELONIE GRANT, on behalf of her son TYRONNE CLARK, from action of the Board of Education of the Baldwin Union Free School District regarding residency.

Decision No. 15,607

(July 12, 2007)

Ingerman Smith, LLP, attorneys for respondent, Alla Brodsky, 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, Tyronne, is not a district resident.  The appeal must be dismissed.

In August 2006, petitioner enrolled Tyronne in respondent’s district indicating an address on Meadow Lane in Freeport, New York (“the Baldwin address”).  On December 6, 2006, Tyronne told his teacher that he and his mother had stayed in Queens Village (“the Queens address”) with his aunt for the past two nights and that he would be residing in Queens by Christmas.  Tyronne’s teacher contacted petitioner and asked her whether she and Tyronne had moved out of the district.  In response, petitioner wrote a letter to the teacher stating that Tyronne was confused about their living situation because his aunt had created a bedroom for him and his sister for weekends when she watched them.  Based upon the foregoing, respondent began an investigation of petitioner’s residence.

Between December 21, 2006 and February 16, 2007, respondent’s investigators conducted surveillance of the Baldwin address on 10 dates.  Each morning of the surveillance, neither petitioner, Tyronne nor petitioner’s vehicle were observed at the Baldwin address.  However, respondent’s investigator verified that Tyronne was present at school on those dates.  Respondent’s investigator also observed another vehicle parked at this address on three of those dates.

Respondent’s investigators conducted surveillance of the Queens address on 13 separate mornings during this period.  Petitioner’s vehicle was observed parked at the Queens address on each of the 13 mornings and on five of those 13 dates, petitioner was observed exiting the Queens address with Tyronne.

By letter dated January 10, 2007, respondent’s director of pupil services (“director”) advised petitioner of the results of the district’s investigation and the determination that petitioner and her son were not district residents.  The letter invited petitioner to attend a meeting where she would have the opportunity to present evidence to support her residency claim.

On January 22, 2007, petitioner met with respondent’s investigator and the director.  During this meeting, petitioner advised them that she had been staying with her sister at the Queens address for personal reasons and that she leaves the Queens address early in the morning to drop Tyronne off at school in Baldwin.  Petitioner also stated that she has two jobs, both in Manhattan, and that she takes the train from Baldwin to Manhattan in the morning. 

By letter dated January 25, 2007, the director notified petitioner of the district’s determination that she and Tyronne were not district residents.  This appeal ensued and petitioner’s request for interim relief was granted on February 22, 2007.  Thereafter, respondent’s investigator resumed surveillance of the Baldwin address in the early mornings and evenings of February 28 and March 1, 2007.  On each of these occasions, petitioner’s vehicle was not observed at the Baldwin address.

Petitioner claims that she rents a house at the Baldwin address from her sister and that this is her permanent residence.  Petitioner admits that she and Tyronne have been staying overnight at the Queens address to provide support to her sister who has personal issues and that they intend to move back to the Baldwin address.  Respondent claims that petitioner and Tyronne reside outside the district and consequently Tyronne does not have the right to attend the district’s schools tuition-free.  Respondent also claims that the appeal must be dismissed for improper service.

At the outset, I must address respondent’s procedural defense.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).  The affidavit of personal service submitted by petitioner indicates that the district clerk was personally served on February 13, 2007.  While respondent alleges that the petition was, in fact, left on a desk in the district office, it does not submit any affidavits in support of its allegation.  Accordingly, based on the record before me, I will not dismiss the appeal for lack of service.

The appeal, however, must be dismissed on the merits.  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 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).

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).

Petitioner admits that she and her son have been staying outside of the district with her sister.  The issue in this appeal is whether or not petitioner’s absence from the Baldwin address is temporary.

Petitioner submits a number of documents in support of her claim that her permanent residence is the Baldwin address, including rent receipts, utility bills, proof of car insurance, car registration, health insurance forms, bank statements, a paycheck and a Long Island Rail Road ticket.  Many of these documents have little probative value (e.g. the rent receipts and utility bills date to a period prior to December 2006 when respondent began its investigation).  I also find that the Long Island Rail Road ticket is insufficient proof because the fact that petitioner may take the train from Baldwin to Manhattan on some days does not establish residency.  While some of the documents may support the fact that petitioner rents a house in the district or receives mail in the district, they do not alone confer residency status.  I do not find that these documents adequately establish continuing ties to the community indicating that petitioner’s absence from the district is temporary (seeAppeal of J.V., 44 Ed Dept Rep 421, Decision No. 15,218).

Moreover, while petitioner expresses an intent to return to the district, she provides no evidence of continuing ties to the community nor does she provide any timeline as to when she will return to the Baldwin address.  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 (Appeal of J.V., 44 Ed Dept Rep 421, Decision No. 15,218; Appeal of Collins, 44 id. 74, Decision No. 15,103).  Based on the record before me, I find that petitioner has failed to present sufficient evidence that her move was temporary and that she has made any effort to return to respondent’s district.  Under these circumstances, I cannot find respondent’s determination to be unreasonable.  If, at some future date, petitioner and her son do relocate to an address within respondent’s district, petitioner may then reapply for his admission.