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Decision No. 16,022

Appeal of ROBIN SCHMITT, on behalf of her children EGAN and STEVEN, from action of the Board of Education of the Schuylerville Central School District and Superintendent Ryan Sherman regarding residency.

Decision No. 16,022

(February 6, 2010)

Ronald L. Daigle, Esq., attorney for petitioner

Girvin and Ferlazzo, P.C., attorneys for respondents, Kristine Amodeo Lanchantin, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Schuylerville Central School District (“board”) and Superintendent Ryan Sherman (collectively “respondents”) that her twin sons, Egan and Steven, are not district residents.  The appeal must be dismissed.

Until August 2008, petitioner resided on West River Road, Schuylerville, with her husband and sons who attended Schuylerville Elementary School.  At that time, the family moved to Stanton Road in Cambridge, outside the district.

By letter dated August 11, 2008, the district’s former superintendent contacted the family and advised them that an issue had arisen about their residency status.  By letter dated August 19, 2008, the former superintendent granted them one year to work on their residency issues after meeting with the twins’ grandfather, a retired district teacher, who requested that the children be allowed to continue attending school in the district.  In March 2009, petitioner and her husband met with the former superintendent and informed him that they intended to move back to the district as soon as they could sell their house in Cambridge, which they had been unable to do because of poor market conditions.  By letter dated March 2, 2009, the former superintendent allowed petitioner until the end of the 2010-2011 school year to sell the house in Cambridge and purchase a home in the district.

The former superintendent retired at the close of the 2008-2009 school year.  On September 4, 2009, petitioner and her husband met with the new superintendent who informed them that, notwithstanding the former superintendent’s March 2, 2009 letter, their children would not be allowed to attend respondents’ schools during the 2009-2010 school year since they did not reside within the district.  He also informed them that district policy does not accept non-resident tuition-paying students.  The superintendent reiterated this information in a letter dated the same day.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 17, 2009.

Petitioner contends that respondents’ determination is arbitrary and capricious because it contradicts the former superintendent’s letter upon which she relied and ignores her family’s intent to return to district.  She also contends that the superintendent’s September 4, 2009 letter is invalid because it does not comply with the Commissioner’s regulations.  Petitioner seeks a determination that her children are district residents and entitled to attend the district’s schools without the payment of tuition.

Respondents assert that the petition must be dismissed for failure to state a claim upon which relief may be granted.  They contend that petitioner is not a district resident and therefore her children are not entitled to attend school in the district.  They assert that petitioner admits that she and her children reside outside the district, that petitioner’s alleged intent to return to the district is insufficient to establish residency, that district policy does not permit non-resident tuition-paying students and that the former superintendent lacked authority to permit petitioner’s children to attend school in the district.  They also assert that they have enforced the district’s residency requirement consistently for other non-resident families, and that petitioner had sufficient notice to appeal.

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 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).

Petitioner has failed to meet her burden of proving she meets either prong of residency.  She admits that she resides outside the district and thus has no physical presence in the district.  Petitioner also fails to demonstrate sufficient intent to reside in the district.  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).  Petitioner states that her parents live in the district, that she maintains a district mailing address and that the boys participate in Schuylerville baseball and football leagues.  However, these assertions are not persuasive.  The fact that petitioner’s parents are district residents does not establish that she intends to reside in the district.  The boys’ continued participation in youth athletic leagues within the district can be explained by other considerations and does not necessarily establish that petitioner intends to return to the district.  Further, petitioner’s maintenance of a mailing address within the district is not sufficient in and of itself, to establish such intent.

Moreover, 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).  Although petitioner alleges that there is a “for sale” sign in front of the Cambridge house and it has been shown several times, she does not dispute respondents’ claim that it is not listed on the market with a realtor.  Since petitioner has failed to present any evidence of such a concrete and realistic plan to return, I find that she has failed to prove that she is a resident of respondents’ district and has failed to rebut the presumption that her children reside with her outside the district.  A school district cannot be expected to allow students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Weisberg, 39 Ed Dept Rep 737, Decision No. 14,365, judgment granted dismissing petition to review, Weisberg v. Mills, et al., Sup.Ct., Albany Co., Special Term [Malone, J.], November 27, 2000, n.o.r.).

Petitioner’s reliance on the former superintendent’s letter is also unavailing.  The former superintendent lacked the authority to permit petitioner’s sons to enroll in the district’s schools through the 2010-2011 school year since District Policy 7132 does not permit non-resident tuition-paying students.  In any event, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Associates v. City of New York, et al., 71 NY2d 274; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779; Appeal of Holzer, et al., 37 id. 549, Decision No. 13,924).

Finally, although the superintendent’s September 4, 2009 letter did not contain the appeals procedure set forth in §100.2(y)(4) of the Commissioner’s regulations, I find that such omission does not invalidate respondents’ determination, as petitioner was able to initiate her appeal within the requisite time period.  However, I remind respondents of their obligations to comply with the Commissioner’s regulations.

In sum, I find that petitioner has failed to meet her burden of proving that respondents’ determination was arbitrary or capricious.  In light of this disposition, I need not consider the parties’ remaining arguments.  While the appeal must be dismissed, petitioner retains the right to reapply to the district for her sons’ admission at any time should circumstances change (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558, Appeal of Hussain, 46 id. 108, Decision No. 15,456).