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Decision No. 16,127

Appeal of RICHARD MATONE, on behalf of his children SIDNEY, CASSIDY and REED, from action of the Board of Education of the West Islip Union Free School District regarding residency.

Decision No. 16,127

(August 20, 2010)

Bernard T. Callan, P.C., attorneys for petitioner, Bernard T. Callan, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Christine M. LaPlace, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the determination of the Board of Education of the West Islip Union Free School District (“respondent”) that his children, Sidney, Cassidy and Reed, are not district residents.  The appeal must be dismissed.

Petitioner owns a home on Beatrice Avenue in respondent’s district and his children attended school in the district during the 2009-2010 school year.  In November 2009, the district received an anonymous telephone call indicating that petitioner and his children were not residing at the Beatrice Avenue residence, and respondent commenced an investigation.  Surveillance was conducted over a three-month period, beginning in December 2009 and ending in February 2010, at various times during weekdays and weekends.  The surveillance revealed that there was no activity at the Beatrice Avenue residence with the exception of someone obtaining the mail on a few occasions, entrance into the backyard on one occasion and petitioner’s son routinely taking the bus to school from that location.  Surveillance further revealed petitioner’s children regularly coming and going from a residence owned by petitioner’s parents on Hunter Avenue, outside the district.

By letter dated February 25, 2010, respondent’s superintendent advised petitioner that it had come to her attention that his children were not district residents, that the district would make a determination as to their entitlement to attend district schools on March 15, 2010 and that he had until March 12, 2010 to submit information concerning his children’s residence.  Petitioner submitted various documents for the superintendent’s consideration.

By letter dated March 16, 2010, the superintendent advised petitioner that she had determined that his children were not district residents and that they would be excluded from district schools effective March 26, 2010.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 5, 2010.

Petitioner contends that the Beatrice Avenue home is his residence and that his family is living on Hunter Avenue temporarily while the Beatrice Avenue home is undergoing extensive renovations and repairs.  Petitioner maintains that he never intended to abandon or otherwise relinquish the Beatrice Avenue residence and that respondent’s determination was without basis in fact or law.  Petitioner contends that he was not provided with a hearing or an opportunity to respond prior to respondent’s determination.  Petitioner requests an order reversing respondent’s determination.

Respondent alleges that petitioner has failed to demonstrate a clear legal right to the relief requested, that the mere fact that petitioner owns property in the district does not confer residency status and that respondent’s determination was not arbitrary or capricious.  Respondent maintains that petitioner has not sufficiently demonstrated his childrens’ physical presence as inhabitants of the district, nor the requisite intent to remain within the district permanently.  Respondent also objects to the reply, contending it raises new allegations and contains exhibits that should have been presented with the petition.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner’s assertion that he was not provided with adequate opportunity to be heard is without merit.  Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).  In this case, petitioner received written notice, dated February 25, 2010, of the opportunity to provide information and documentation to the superintendent, thus satisfying the regulatory requirement.

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).

In this case, petitioner acknowledges that his family has been living outside the district because the Beatrice Avenue house is uninhabitable and because he was forced to abandon a trailer located on the property.  Respondent’s surveillance also supports the conclusion that petitioner and his children currently reside on Hunter Avenue, outside the district.  Thus, the determinative issue is whether petitioner’s absence from the district is temporary.  I find that it is not.  The record reveals that during the 2008-2009 school year, the superintendent determined that petitioner was not residing in the district.  At that time, petitioner acknowledged that his family did not reside at the Beatrice Avenue house because it was in need of extensive renovation and he requested that his children be permitted to complete the remainder of the school year in the district’s schools.  The superintendent granted his request.  Petitioner argues that for a time he was living in a trailer located on the Beatrice Avenue property, but acknowledges that he was forced to abandon that trailer because of a problem with the heating system.  Moreover, petitioner acknowledges that difficulties exist with the local zoning board that currently prevents him from obtaining a certificate of occupancy for the Beatrice Avenue property.  Thus, although petitioner claims that he intends to complete the repairs on the Beatrice Avenue home and return to the district, he has failed to supply sufficient evidence demonstrating progress toward achieving that objective even though many months have passed since he vacated the premises.

A school district cannot be expected to allow students to continue to attend its schools indefinitely based upon 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 substantial progress toward repairing and renovating the Beatrice Avenue house and obtaining a certificate of occupancy, or a concrete and realistic plan to do so (seeAppeal of Yuen, 49 Ed Dept Rep 175, Decision No. 15,989; Appeal of Collins, 44 id. 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).  Under these circumstances, I cannot conclude that respondent’s determination was arbitrary or capricious.

Petitioner retains the right to reapply for admission on his childrens’ behalf at any time should circumstances change.