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Decision No. 16,154

Appeal of LUIS F. CORREA, on behalf of his sons LUIS and NICOLAS, from action of the Board of Education of the Valley Stream Union Free School District No. 30 regarding residency.

Decision No. 16,154

(September 22, 2010)

Drossman & Associates, attorneys for petitioner, Kevin Krupnick, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, William Kang, Esq., of counsel

Petitioner appeals the determination of the Board of Education of the Valley Stream Union Free School District No. 30 (“respondent”) that his sons, Louis and Nicolas, are not district residents entitled to attend its schools tuition-free.  The appeal must be dismissed.

Petitioner and his brother own a home in Valley Stream within respondent’s district (“Valley Stream address”) where Luis and Nicholas have attended school since September 2006 and 2009, respectively.  In October 2009 the children’s mother told district staff that they were living in Elmont, outside the district (“Elmont address”).  Respondent’s investigator conducted surveillance on three days in October and November and determined petitioner was residing outside the district.  The superintendent notified petitioner of this initial determination and provided him an opportunity to submit evidence regarding residency.  By decision dated January 5, 2010, the superintendent notified petitioner that, since he had not received any information from petitioner to the contrary, his determination that his sons were not district residents was final. This appeal ensued.  Petitioner’s request for interim relief was granted on January 26, 2010.

Petitioner claims that he resides at the Valley Stream address, but temporarily relocated to his mother’s home at the Elmont address due to financial hardship.  He asserted in his petition that he intended to return to the district upon resolution of these difficulties.  Moreover, petitioner claimed that he had recently obtained a new job and intended to return to the district by February 1, 2010.  In response to a June 3, 2010 request from my Office of Counsel, petitioner’s counsel submitted a letter with an affirmation stating that petitioner and his children reside in respondent’s district “uninterrupted since February 1, 2010.”

Respondent maintains that its determination that petitioner’s children are not district residents is in all respects proper.

Initially, I note that the letter and affirmation submitted by petitioner’s attorney in response to my Office of Counsel’s June 3, 2010 letter inappropriately raises new allegations not raised in the petition, as well as a challenge to respondent’s answer.  Petitioner did not submit a verified reply to respondent’s answer.  Consequently, I have not considered the challenge to respondent’s answer set forth in the attorney’s letter or any new allegations.  

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 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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

The parties do not dispute that, at the time of respondent’s January 5, 2010 determination, petitioner and his children were living at the Elmont address.  Petitioner’s claim that he resided at the Valley Stream address prior to moving temporarily to the Elmont address is not supported by the record.  Petitioner submits a 2008 tax bill received by him and his brother, as joint owners of the Valley Stream property, as well as a 2010-2011 renewal policy for homeowners insurance, also in both names.  However, 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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779). 

Petitioner also submits a license issued in September 2004 and a residency affidavit dated January 2010 – none of which establish petitioner’s physical presence in the district during the period at issue in this appeal.  Moreover, petitioner submits a water bill for water usage during the period of November 18, 2009 through December 16, 2009 – during the period of time petitioner claims to be living with his mother at the Elmont address.  Based on this evidence, petitioner has not established residency in the district prior to his alleged temporary relocation.

Petitioner’s attorney submitted a letter dated June 8, 2010 stating that petitioner had returned to the district as of February 1 and attached his affirmation with exhibits generally addressing petitioner’s residency.  These exhibits also fail to demonstrate that petitioner is a district resident. 

The deed, dated July 6, 2000, and tax bill, dated February 5, 2010, submitted by petitioner’s attorney, merely demonstrate petitioner’s continued ownership of the district residence.  Although a water bill for the district residence, dated March 17, 2010, indicates that petitioner is listed on the joint account, it fails to show that petitioner actually lives at the district residence.  Copies of birth certificates of petitioner’s children from 2001, 2004 and 2006 do not demonstrate that petitioner was physically present in the district at anytime in 2009 or 2010.  Absent any other evidence, these birth certificates and a single cable bill in petitioner’s wife’s name dated February 22, 2010 are insufficient to prove that petitioner currently resides in the district.

Moreover, even with respect to petitioner’s assertion that he intended to return to the district as of February 1, 2010, petitioner has failed to offer sufficient evidence that he has in fact returned.  The attorney’s affirmation contains no statement regarding petitioner’s alleged return to the district, and petitioner failed to provide his own sworn affidavit attesting to his return to the Valley Stream address.    

Therefore, on the record before me, petitioner has not met his burden of proof that his children reside in respondent’s district.  Accordingly, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

While the appeal must be dismissed, I note that petitioner has the right to reapply for admission to the district on his children’s behalf, should circumstances change, and to present any new information or documentation for respondent’s consideration.