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Decision No. 16,432

Appeal of CONNIE BOWSER, on behalf of her grandchildren TYLER BOWSER, AUSTIN SHAW, and KARA DANIEL BOWSER, from action of the Board of Education of the Webster Central School District regarding residency.

Decision No. 16,432

(November 16, 2012)

Lacy Katzen LLP, attorneys for petitioner, Matthew A. Ryen, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Charles E. Symons, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Webster Central School District (“respondent”) that her grandchildren are not district residents.  The appeal must be dismissed.

Petitioner is the grandmother and legal guardian of Tyler Bowser, Austin Shaw and Kara Daniel Bowser.  In 2006, petitioner purchased a house in respondent’s district (“in-district address”) and enrolled her grandchildren in respondent’s schools.   According to respondent, however, in October 2009 it began receiving reports that petitioner and her grandchildren were not district residents, and an investigation into their residency was commenced. 

On four days in May 2010, one day in June 2010, and two days in October 2010, respondent’s personnel conducted surveillance at the in-district address and a property located outside respondent’s district (“out-of-district address”).  Among other things, respondent’s personnel observed petitioner leaving the out-of-district address and driving her grandchildren either to school or to the in-district address on two mornings.  In addition, a vehicle registered to petitioner’s husband was seen arriving at the in-district address on four occasions at or around the time that respondent’s school bus was scheduled to arrive there.  Further, one of respondent’s employees (its Schroeder High School Sentry Supervisor) avers that on October 15, 2010, she overheard one of petitioner’s grandchildren say that he lived “in the city,” which was apparently a reference to the City of Rochester, New York where the out-of-district address is located.     

By letter dated November 4, 2010, respondent’s registrar notified petitioner of the district’s belief that she and her grandchildren were not district residents and gave her an opportunity to submit additional information.  In response, the record reflects that petitioner submitted property tax receipts, mortgage and insurance information, invoices for work done at the in-district address, a cable bill which included charges for cable and home phone service at the in-district address, and a three-month water bill in the amount of $12.69.  In addition, respondent contends that sometime after receiving the November 4, 2010 letter, petitioner had a telephone conversation with respondent’s Director of Pupil Services during which petitioner, among other things, admitted that neither she nor her grandchildren lived at the in-district address, and that they in fact lived in Rochester, New York.

By letter dated January 7, 2011, respondent notified petitioner of its final determination that her grandchildren were not district residents, and that they would be excluded from its schools effective January 18, 2011.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 28, 2011. 

Petitioner contends that she and her grandchildren reside at the in-district address and that, while she used to reside at the out-of-district address and still spends a “great deal of time” there, it is now only used for her business (which she indicates is a 24-hour, 7-day-a-week child care service).  In support of this contention, petitioner, among other things, submits a copy of her deed for the in-district address and maintains that both her mortgage and her homeowner’s insurance policy for the in-district address are for an “owner occupied” property.  In addition, petitioner submits a copy of a “skip trace search” listing both her and her husband’s address as the in-district address.    As relief, petitioner requests that I find that her grandchildren are residents of respondent’s district, and that they are entitled to attend its schools without the payment of tuition.

Respondent does not deny that petitioner owns the in-district address, but argues that this alone does not establish her residency there.  Rather, respondent contends that its residency determination in this matter was based on “compelling evidence,” including its surveillance evidence, and the alleged statements made by both petitioner and her grandchild.  Moreover, the record reflects that in addition to its surveillance, respondent obtained statements from a number of people who live near the in-district address which indicate, among other things, that there is rarely any activity at the in-district address, and that petitioner is often seen arriving there at or around the time that respondent’s school buses are scheduled to arrive. 

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).  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).

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, I am unable to find that petitioner has met her burden of showing that she resides within respondent’s district.  While petitioner submits a number of documents as proof of her residency at the in-district address, none of these documents establish her physical presence or intent to remain at this property.  Rather, the evidence in the record at best establishes that petitioner owns the in-district address and may occasionally use it.    This is especially true where, as here, respondent has produced evidence – including the observations of its investigators and the statements of people who live near the in-district address – that indicates that petitioner is rarely present at the in-district address and, in fact, is living at the out-of-district address.  Petitioner has not submitted a reply or other evidence to explain or refute this evidence, nor does she dispute respondent’s assertion that both she and one of her grandchildren made statements indicating that they did not live at the in-district address.  Accordingly, based on this record, petitioner has not carried her burden of establishing physical presence and intent to reside in respondent’s district and, therefore, I cannot conclude that respondent’s determination that petitioner is not a district resident was arbitrary, capricious or unreasonable.

In light of this disposition, I need not address the parties’ remaining contentions.

While the appeal must be dismissed, petitioner retains the right to reapply to the district for admission of her grandchildren at any time should circumstances change, and to present any new information or documentation for respondent’s consideration (seee.g.Appeal of Williams, 51 Ed Dept Rep, Decision No. 16,302).