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Decision No. 15,656

Appeal of LEVI and SANDRA BOND on behalf of their son ERIK, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 15,656

(August 31, 2007)

Katz & Katz, attorneys for petitioners, Gerald M. Klein, Esq., of counsel

Ingerman Smith, L.L.P, attorneys for respondent, Emily J. Lucas, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Ossining Union Free School District (“respondent”) that their son, Erik, is not a district resident.  The appeal must be dismissed.

In September 2006, petitioners enrolled Erik in respondent’s schools representing that they resided in the district on State Street in Ossining (the “in-district residence”).  In October 2006, the district received an anonymous phone call indicating that Erik was not a district resident.  In response, the district conducted an Internet search and found petitioners listed as residing on North Division Street in Peekskill (the “out-of-district residence”).  In response, the district hired a licensed private investigation firm to investigate Erik’s residency.

By letter dated November 13, 2006, the district notified petitioners that Erik was not a district resident entitled to attend the district’s schools and requested that petitioners provide documentation to support their claim of residency by November 22, 2006.  On November 17, 2006, petitioners responded by submitting a Con Edison bill for October-November 2006.

By letter dated November 27, 2006, the district notified petitioners of their finding that Erik was not a district resident and that he would be excluded from school as of December 1, 2006.  Shortly thereafter, the district learned that petitioners were represented by legal counsel.  The district spoke to petitioners’ counsel who informed the district that while petitioners did not reside at the in-district residence as they had claimed, petitioners were, in fact, in the process of relocating to the district and anticipated finalizing their move by the end of December 2006.

Based on this information, the district agreed to permit Erik to continue to attend school.  The district informed petitioners, however, that it would continue to investigate Erik’s residency.

A second investigation was then conducted by the private investigation firm.  This investigation included seven days of surveillance between March 13 and April 24, 2007, two of which occurred at the in-district residence, two at the out-of-district residence, and three simultaneously at both the in-district and out-of-district residences.

The investigation report indicated that Erik was seen exiting the out-of-district residence three times and that, on two of those occasions, he was driven to school by his mother.  On the other two occasions the out-of-district residence was observed, either Erik’s mother and father or the family vehicles were seen there.  At no time was Erik observed at the in-district residence.  Further, the firm states that it conducted multiple “drive-bys” and repeatedly observed petitioners’ vehicles at the out-of-district residence, but never at the in-district residence.

By letter dated May 10, 2007, the district notified petitioners that Erik was not a district resident and would be excluded from school as of May 18, 2007.  This appeal ensued.  Petitioners’ request for interim relief was granted on June 15, 2007.

Petitioners seek a finding that they and Erik are district residents.  They claim that they inherited a house in the district from an aunt and reside there.  Petitioners admit, however, that they operate a day care facility at the out-of-district residence and stay there a few nights per month.

Respondent contends that petitioners are not district residents and that its determination was rational and reasonable.  Respondent argues that its surveillance never placed Erik at the in-district residence and contends that petitioners have failed to submit evidence that they own or reside at the in-district residence.

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 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).

Petitioners offer as evidence of district residency nine photographs, dated May 29, 2007, depicting four rooms of a dwelling alleged by petitioners to be the in-district residence.  Petitioners also offer more recent Con Edison bills for service at the in-district residence and heating oil bills.

Additionally, petitioners offer letters containing statements made by three in-district residents.  Two of these letters, dated May 30, 2007, were not witnessed for signature.  The third letter, entitled “Affidavit” and notarized on June 6, 2007, states that petitioners have been district residents since the fall of 2006.  However, petitioners admit that prior to November 27, 2006, they had not lived at the in-district residence and would not likely live at such residence until the end of December 2006.  In their reply, petitioners submitted an affidavit, notarized June 26, 2007 and submitted by a resident and/or tenant of the in-district residence, stating that she witnessed one of the petitioners at such residence and saw his van parked on the street on June 11, 2007.

Petitioners further claim that Mr. Bond’s aunt formerly owned and resided at the in-district residence. They claim that she died in April 2007 and that petitioners inherited the in-district residence.  Petitioners provide a copy of the aunt’s Last Will and Testament bequeathing Mr. Bond her “real property.”

Petitioners claim, in explanation of their frequently observed occupancy of the out-of-district residence in March and April, that, given the aunt’s ailing condition, they moved her to the out-of-district residence to better care for her, and accordingly, began staying with her at such residence.

While I have no reason to doubt that Mr. Bond’s aunt owned the in-district residence and bequeathed such residence to Mr. Bond, there is no proof in the record that petitioners reside at such residence.  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).

On this record, petitioners have not established that they actually reside at the in-district residence.  The district provided petitioners with ample opportunity to provide evidence to establish district residency.  Petitioners failed to provide evidence of relocation or physical presence at this residence.  Moreover, the April 24, 2007 investigation report indicates the petitioners and Erik were observed on multiple occasions at the out-of-district residence.  Neither petitioners, nor their vehicles, were seen at the in-district residence.  Based on the record before me, I cannot conclude that respondent’s residency determination was arbitrary or capricious.