Appeal of JULIE J. MOORE, on behalf of her son JOHN, from action of the Board of Education of the Williamsville Central School District regarding residency.

Appeal of JULIE J. MOORE, on behalf of her daughter JILLIAN, from action of the Board of Education of the Williamsville Central School District regarding residency.

Appeal of JULIE J. MOORE, on behalf of her son AARON GERMONY, from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 15,985

(September 10, 2009)

Goldstein, Ackerhalt & Pletcher, LLP, attorneys for petitioner, Jay C. Pletcher, Esq., of counsel

Norton/Radin/Hoover/Freedman, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

HUXLEY, Interim Commissioner.--In three separate appeals, petitioner challenges the determination of the Board of Education of the Williamsville Central School District (“respondent”) that her children, John, Jillian and Aaron, are not residents of the Williamsville Central School District (“district”).  Because the appeals involve common issues of law and fact, they are consolidated for decision.  The appeals must be sustained.

Petitioner owns two houses, including a residence located in the district on South Forest Road, Williamsville (“South Forest Road”).  She also owns a single family home, which she leases to Aaron’s father, located on Clearvale Drive, Cheektowaga (“Clearvale Drive”), outside the district.

John and Jillian have attended respondent’s schools since September 2007, and Aaron, since September 2008.  Suspicions regarding petitioner’s residency arose after John allegedly told two of his teachers that he resided on Clearvale Drive.  By letter dated November 26, 2008, respondent’s coordinator of student services (“coordinator”) informed petitioner that her children’s residency was in question, and provided her the opportunity to submit information, which she did.  On December 10, 16, 17, and 18, 2008, respondent’s investigator conducted surveillance.

By letter dated December 29, 2008, the coordinator notified petitioner that her children were not district residents.  This appeal ensued.  Petitioner’s request for interim relief was granted on January 27, 2009.

Petitioner contends that she has a “blended family” and that she and her children spend time at both addresses.  Her minor children spend two to three days per week at Clearvale Drive with Aaron’s father, especially during recent renovations to South Forest Road.  Petitioner alleges that her primary residence is South Forest Road.

Respondent contends that petitioner has failed to demonstrate a clear legal right to the relief requested and has failed to meet her burden of establishing the facts upon which she seeks relief.  Respondent argues that petitioner’s children are not district residents and that its decision was not arbitrary or capricious.

Initially, I must address petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions that raise new arguments.

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

For purposes of Education Law §3202(1), a person can only have one legal residence (Appeal of Reynolds, 41 Ed Dept Rep 32, Decision No. 14,604; Appeal of Scaffa, 40 id. 177, Decision No. 14,453).  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 Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  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 Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

Based on the record before me, I find insufficient evidence to support respondent’s determination that petitioner is not a district resident.  Respondent’s investigator observed South Forest Road on four occasions and Clearvale Drive on two.  He observed a vehicle registered to petitioner, but not always driven by petitioner, either leaving Clearvale Drive or arriving at South Forest Road.  He also observed various adults and children entering and departing from both residences and various children boarding a school bus from South Forest Road.  The investigator’s report did not identify the adults or children under surveillance and it is unclear whether the children he observed were the students in question, especially in light of petitioner’s statement that she had a blended family.  On some occasions the children were dropped off by car at South Forest Road where they then boarded the bus, and on at least one occasion the investigator was unable to determine if the children were dropped off at, or if they exited, South Forest Road before boarding the bus. 

The investigator’s observations are consistent with petitioner’s statement that she spends two to three days a week at Clearvale Drive, especially during recent renovations to South Forest Road. Under these circumstances, I find the limited surveillance to be inconclusive and unpersuasive as to the question of residency.

Moreover, while certain documents reflect the Clearvale Drive address, namely petitioner’s voter and vehicle registrations, other documents such as her driver’s license and STAR exemption reflect the South Forest Road address. Petitioner contends that her driver’s license and STAR exemption were belatedly changed because the paperwork “fell through the cracks in [her] very busy life that [she] didn’t know was important.”

Petitioner also submits numerous documents in support of her claim of residency.  These include documents related to South Forest Road including a mortgage loan statement, paid school tax receipt, water bill, and a notice of STAR exemption addition.  Petitioner also submits a notice of STAR exemption removal for Clearvale Drive.  In addition, she submits numerous bills related to the South Forest Road residence including electric, gas and cable bills.  She also submits correspondence from respondent reflecting the South Forest Road address.  Finally, she submits a lease agreement indicating that Aaron’s father leases the Clearvale Road residence.

In sum, I find that respondent’s surveillance evidence is inconclusive, particularly in light of petitioner’s evidence.  Accordingly, on the record before me, I must conclude that respondent’s determination is based on insufficient evidence and is arbitrary and capricious.

THE APPEALS ARE SUSTAINED.

IT IS ORDERED that respondent allow John and Jillian Moore and Aaron Germony to attend school in the Williamsville Central School District without the payment of tuition.

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