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Decision No. 16,301

Appeal of MARIA MOLINA, on behalf of her son ROBERTO, from action of the Board of Education of the Ossining Union Free School District regarding residency.

Decision No. 16,301

(September 2, 2011)

Ingerman Smith, L.L.P., attorneys for respondent, Marion M. Walsh, Esq., of counsel

GREY, Acting Commissioner.--Petitioner appeals a decision of the Board of Education of the Ossining Union Free School District (“respondent”) that her son, Roberto, is not a district resident.  The appeal must be dismissed.

In July 2009, petitioner enrolled Roberto in respondent’s schools for the upcoming school year using a residence in Ossining, New York (“Ossining residence”), within respondent’s district.  In August and September 2010, respondent received mail returned as undeliverable that had been addressed to petitioner’s Ossining residence.  Additionally, respondent observed that Roberto was repeatedly late for school. 

In September 2010, petitioner notified respondent that she had experienced an electrical problem at her house and that she and Roberto would be moving outside the district to live with relatives in Tarrytown, New York.  Respondent requested documentation substantiating their residency in the district.  Petitioner did not provide any documentation, and respondent notified her by letter dated October 6, 2010 that Roberto was no longer a district resident entitled to attend its schools.  Thereafter, petitioner provided respondent with a certificate of occupancy issued on October 15, 2010 indicating that the electrical repairs at the Ossining residence had been completed.  Respondent allowed Roberto to continue attending school.

On November 29, 2010, however, respondent hired an investigator to conduct surveillance of petitioner’s Ossining residence.  On several occasions from November 30, 2010 through at least January 2011, the investigator conducted surveillance of the Ossining residence, but failed to observe petitioner or her vehicle at the house.  The investigator repeatedly observed two cars parked at the Ossining address, which were registered not to petitioner, but to two other individuals with the last name Molina, at a Pleasantville, New York address (“Pleasantville address”). 

On February 28, 2011, the investigator contacted petitioner and inquired about her address. Petitioner informed the investigator that she no longer lived at the Ossining address and provided him with the Pleasantville address, which is outside the district.  The investigator then conducted surveillance of the Pleasantville address.  On two occasions in March 2011, he observed Roberto exiting the Pleasantville address and being taken to school.  On one occasion in March, the investigator observed Roberto getting off the bus at the Ossining address, being escorted inside the residence by another individual, and then being transported to the Pleasantville address.  Based on this information, respondent notified petitioner by letter dated April 4, 2011 that it had found Roberto not to be a district resident and advised petitioner that she had an opportunity to respond.

Thereafter, petitioner provided respondent with documentation indicating that she owned the Ossining residence, including a March 2011 payment agreement with Con Edison to continue utilities at the Ossining residence and a billing history from September 2010 through March 2011, and property tax bill information and payment history.  Petitioner did not submit any other proof in support of her district residency.  By letter dated April 15, 2011, respondent’s superintendent upheld the determination that Roberto was not a district resident entitled to attend respondent’s schools tuition-free.  This appeal ensued.  Petitioner’s request for interim relief was granted on May 6, 2011.

Petitioner contends that she and Roberto are district residents and that her son is entitled to attend respondent’s schools tuition-free.  Respondent contends that although petitioner owns the Ossining address, she actually resides at the Pleasantville address, outside the district. Respondent relies on petitioner’s admission to the investigator that she lived in Pleasantville and on the surveillance conducted at both residences, which failed to observe any activity of petitioner at the Ossining address and observed Roberto at the Pleasantville address on at least three occasions.

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). 

Although petitioner provided respondent documentation indicating she owns the Ossining residence, has paid property taxes and may have entered an agreement to pay for utilities for that address, the mere fact that one 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 has failed to submit any evidence of her physical presence and intent to reside in the district or to refute or otherwise explain respondent’s surveillance evidence, during which she was never observed at the Ossining address and admitted to an investigator that she resides outside the district.  Indeed, other than her conclusory assertions, petitioner has submitted no documentation or other evidence in this appeal to support her claim of residency.  Accordingly, based on this record, I cannot conclude that respondent’s residency determination was arbitrary or capricious.

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