Appeal of JOSEPH M. MACCHIA, on behalf of his children ISABELLA and MICHAEL, from action of the Board of Education of the Irvington Union Free School District regarding residency.

Decision No. 16,299

(September 1, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Carolyn J. Przybylo, Esq., of counsel

GREY, Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Irvington Union Free School District (“respondent”) that his children, Isabella and Michael, are not district residents.  The appeal must be dismissed.

In April 2011, the principal of Isabella’s elementary school sent a letter to petitioner and his wife at Halsey Pond Lane in the district, the address the district had on file for the family and where they had apparently lived for 11 years.  The post office returned the letter marked “return to sender” and provided a new address for the family in Somers, outside the district.  The district’s assistant superintendent for business (“assistant superintendent”) avers that the principal’s secretary contacted petitioner’s wife, who confirmed that the family was residing in Somers.

By letter dated April 27, 2011, the assistant superintendent informed petitioner that it had come to the district’s attention that Isabella and Michael might no longer be district residents entitled to attend the schools of the district tuition free, and offered petitioner the opportunity to present information about his residency.  Petitioner met with the assistant superintendent in May 2011.  The assistant superintendent avers that, at this meeting, petitioner informed him that he had sold the family’s home on Halsey Pond Lane in October 2010, and also stated that, while he had intended to purchase or rent a smaller home in the district, he had been unable to find a suitable home in his price range.  Petitioner also admitted that for a time, the family had lived with family and friends in the district, but had subsequently rented a house in Somers, from which he drove the children to school in the district every day.

By letter dated June 1, 2011, the assistant superintendent notified petitioner and his wife that the children were not district residents and would be excluded as of June 17, 2011.  This appeal ensued.  Petitioner’s request for interim relief was granted on June 16, 2011.

Petitioner contends that his absence from the district is temporary because the family intends to return to Irvington.  He seeks a determination that his children are district residents entitled to attend school in the district without the payment of tuition.

Respondent asserts that the petition fails to state a claim upon which relief may be granted and that its decision was reasonable and not arbitrary or capricious.  Respondent contends that petitioner’s alleged intent to return to the district is insufficient to establish residency.  It contends further that petitioner admits that he and his family reside outside the district, and, therefore, the children are not entitled to attend school in 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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

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).

On the record before me, petitioner has failed to prove that he meets either prong of residency.  He admits that he is renting a home in Somers, outside the district.  Indeed, the Somers address appears beneath his signature on the verified petition.  Therefore, petitioner has failed to establish physical presence in the district (seeAppeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022).

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 Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

Petitioner asserts that the family’s absence from the district is temporary because they intended to remain in Irvington but could not find suitable housing.  As noted above, while he admits that the family is renting a home in Somers, he maintains that they intend to return to Irvington and have continued to be active community members.  For example, petitioner explains that his children have continued to attend school and participate on various sports teams within the district, the family attends church in Irvington, petitioner has been involved in the district’s parent-teacher association, and he and his wife participate in school activities.  However, these assertions are not persuasive.  The family’s previous involvement in school activities when the children attended respondent’s schools does not establish that they intend to return to the district.  Moreover, the family’s continued attendance at an in-district church and the children’s participation in athletic activities can be explained by other considerations and does not necessarily establish such intent (seeAppeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022).

Further, 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 for doing so (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022; Appeal of J.V., 44 id. 421, Decision No. 15,218).  Although petitioner maintains that he is currently unemployed and that such situation will “finally resolve itself for September and we will be permanently re-established as residents of Irvington by then at the latest,” he presents no evidence of employment, or, more significantly, of any concrete and realistic plan to return to the district, such as a signed lease or contract.  Indeed, other than a copy of the assistant superintendent’s June 1, 2011 letter, the petition contains no evidence to support petitioner’s claims.  Further, by email dated July 31, 2011 to my Office of Counsel, petitioner stated that his family was moving back to the district beginning August 15, 2011, and that he would have a signed lease after meeting with the landlord that day.  By letter dated August 2, 2011, my Office of Counsel informed petitioner that if he wished to submit new information or withdraw his appeal, he should do so in accordance with the Commissioner’s regulations no later than August 10, 2011.  However, petitioner submitted no such information.

Accordingly, based on the record before me, I find that petitioner has failed to carry his burden of establishing that he is a district resident and that respondent’s determination was arbitrary or capricious.  While the appeal must be dismissed, petitioner retains the right to apply to the district for his children’s admission at any time should circumstances change (Appeal of Schmitt, 49 Ed Dept Rep 271, Decision No. 16,022).

THE APPEAL IS DISMISSED.

END OF FILE