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Decision No. 16,096

Appeal of JEANINE MULLINS, on behalf of her son BRIAN, from action of the Board of Education of the Massapequa Union Free School District regarding residency.

Decision No. 16,096

(July 27, 2010)

Ralph A. Hummel, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Kathryn J. Maier, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) that her son, Brian, is not a district resident.  The appeal must be dismissed.

During the 2009-2010 school year, Brian attended elementary school in respondent’s district.  On April 23, 2009, the district received an anonymous telephone call indicating that petitioner’s home located on Philadelphia Avenue within the district had been vacant for approximately two years.  Based upon this information, respondent commenced an investigation.  On two occasions the investigator observed that the Philadelphia Avenue residence appeared to be unoccupied.  On December 2, 2009, he followed petitioner and Brian from school to an address on North Hawthorne Street, in the Plainedge Union Free School District.  On December 7, 16 and 18, 2009, the investigator observed Brian leaving the North Hawthorne Street address in the morning and being dropped off near school.  On February 8, 2010, he canvassed the Philadelphia Avenue neighborhood and spoke to two neighbors who indicated that petitioner’s house had been vacant for approximately a year.

By letter dated February 1, 2010, respondent’s assistant superintendent advised petitioner that the district had reason to believe that Brian was not a district resident and informed petitioner that a residency hearing would be held.

At the hearing, petitioner testified that she resided with Brian at the Philadelphia Avenue address until approximately March 2009, at which time an electrical fire caused them to relocate to her grandmother’s house on North Hawthorne Street.  Petitioner further testified that during the summer of 2009 she returned with Brian to the Philadelphia Avenue house where they remained until a pipe burst in November 2010, causing them again to vacate the home and live with her grandmother.  Petitioner also testified that she is planning to return to the Philadelphia Avenue home but did not have funds available for the necessary repairs.  Petitioner indicated that she anticipated the work would begin in the spring of 2010 and that her home could be reoccupied by May or June.

By letter dated March 24, 2010, the assistant superintendent advised petitioner that the district had determined that Brian’s legal residence was on North Hawthorne Street outside the district and that Brian would be excluded from the district’s schools effective April 2, 2010.

Thereafter, petitioner requested that respondent reconsider the determination.  On April 15, 2010, respondent agreed to allow petitioner to submit documentation by April 21, 2010 indicating that she had hired a contractor to repair the Philadelphia Avenue residence.  Petitioner failed to produce such documentation.  This appeal ensued.

Petitioner contends that her official correspondence goes to the Philadelphia Avenue address and that her stay at her grandmother’s house on North Hawthorne Street is temporary.  Petitioner alleges that she is in the process of repairing the Philadelphia Avenue house and that she expects the work to be completed by September 2010.  Respondent contends that petitioner has failed to set forth facts and evidence establishing that she is a district resident and thus entitled to the relief sought.

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).

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 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).

Petitioner admits that she does not presently reside at the Philadelphia Avenue residence because it is uninhabitable.  Respondent’s surveillance supports the conclusion that petitioner and her son currently reside on North Hawthorne Street, outside the district.  Petitioner has failed to present sufficient evidence that her move outside the district is temporary.  Although petitioner claims that she intends to complete the repairs on the Philadelphia Avenue home and return to the district, she has failed to supply any documentary evidence demonstrating progress toward achieving that objective even though more than seven months have passed since she allegedly vacated the premises and despite being given ample opportunity to do so.

A school district cannot be expected to allow to students to continue to attend its schools indefinitely based on an expressed intent to return to the district (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  Petitioner’s claimed intent to return to the district is insufficient to establish residency, absent either proof of substantial progress toward repairing and renovating the Philadelphia Avenue house or, a concrete and realistic plan to do so.  Under these circumstances I cannot conclude that respondent’s determination is arbitrary or capricious (seeAppeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission on her son’s behalf at any time should circumstances change.