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Decision No. 15,989

Appeal of AMY and LUP NING YUEN, on behalf of their children BRIEN and BENJAMIN, from action of the Board of Education of the Great Neck Union Free School District regarding residency.

Decision No. 15,989

(September 29, 2009)

Dai & Associates, P.C., attorneys for petitioners, Jun Wang, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Christie R. Medina, Esq., of counsel

HUXLEY, Interim Commissioner.--Petitioners appeal the determination of the Board of Education of the Great Neck Union Free School District (“respondent”) that their children, Brien and Benjamin, are not district residents.  The appeal must be dismissed.

In August 2007, petitioners registered Brien in respondent’s district listing an in-district address on Old Colony Lane.  During the summer of 2008, petitioners’ landlord notified them that they would have to temporarily leave the Old Colony Lane residence due to renovations which were estimated to take eight to nine months to complete.  Petitioners relocated to their former residence in Little Neck, a property they owned outside the district. 

In August 2008, petitioners registered Benjamin using the Old Colony Lane address.  By letter dated October 31, 2008, respondent’s district registrar informed petitioners that they were not residents and that their children were not entitled to attend respondent’s schools tuition-free.  This appeal ensued.  Petitioners’ request for interim relief was denied on January 1, 2009.

Petitioners maintain that they are temporarily residing outside the district due to renovations at the Old Colony Lane address, and they intend to return as soon as the renovations are complete.  Petitioners seek a determination that Brien and Benjamin are district residents and a finding that they are not responsible for the September and October tuition charges assessed by respondent. 

Respondent claims that petitioners have failed to demonstrate residency within the district or establish a concrete plan to return to the district.

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).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Hussain, 46 Ed Dept Rep 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  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 Stewart, 46 Ed Dept Rep 92, Decision No. 15,450; Appeal of Speckman, 46 id. 74, Decision No. 15,444).  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 Hussain, 46 Ed Dept Rep 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450; Appeal of Castro, 45 id. 88, Decision No. 15,266).

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).

In this case, petitioners acknowledge that their family has been living outside the district during construction.  Thus, the determinative issue is whether petitioners’ absence from the district is temporary.  The bare assertion of an intention to return to the district, absent any showing that continuing efforts are being made to secure a residence does not alone establish legal residence (Appeal of Dina L., 41 Ed Dept Rep 8, Decision No. 14,594; Appeal of Lokkeberg, 38 id. 134, Decision No. 14,001). 

Although petitioners claim that their family intends to return to the Old Colony Lane residence, and submit some evidence that they have looked for rental property, they have failed to demonstrate a concrete and realistic plan to return to the district (Appeal of J.V., 44 Ed Dept Rep 421, Decision No. 15,218; Appeal of Collins, 44 id. 74, Decision No. 15,103).  To support their argument that their absence is temporary, petitioners primarily rely upon the lease that they have on the Old Colony Lane property which has since expired and an affidavit of their landlord indicating that he would offer the rental property to them when construction is complete.  That construction was scheduled to be finished between March and May of 2009.  On July 9, 2009, my Counsel’s Office requested the status of the construction and an explanation of petitioners’ current living arrangements.  Petitioners did not respond.

Petitioners have also failed to demonstrate evidence of continuing ties to the district.  Their reliance upon a lease that has expired and a general statement from their landlord of an intention to lease in the future is not persuasive.  Petitioners also submit documents bearing the Old Colony Lane address –- a driver’s license, car insurance identification card, July, August and October 2008 phone bills and October 2008 credit card and bank account statements.  However, I find these documents to have little probative value since it has been established that petitioners resided at the Old Colony Lane address at one point in time.  Petitioners provide no explanation or evidence of continuing family ties to the community.

Thus, on the record before me, petitioners have failed to demonstrate that their absence from the district is temporary, and therefore have failed to establish that their children are entitled to attend the district’s schools tuition-free.

While the appeal must be dismissed, I note that petitioners retain the right to reapply to the district for admission of their children at any time should their circumstances change.

Finally, petitioners’ request for a determination that they are not liable for past tuition must be denied.  The Commissioner has historically declined to award tuition in residency appeals (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025).  Such relief should be sought in a court of competent jurisdiction (Appeal of Bennett, 45 Ed Dept Rep 110, Decision No. 15,274; Appeal of Crowley, 43 id. 383, Decision No. 15,025).  I similarly decline to address petitioners’ liability for tuition, which should be left to the Court in which an award of tuition is sought.