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Decision No. 16,504


 Appeal of DAVID GUTIERREZ, on behalf of his children ABIGAIL, AMANDA, ANDREW and BRANDON, from action of the Board of Education of the Onteora Central School District regarding residency.

Decision No. 16,504

(July 19, 2013)

Zwiebel and Fairbanks, L.L.P., attorneys for petitioner, Alan S. Zwiebel, Esq., of counsel Thomas, Drohan, Waxman, Petigrow and Mayle, L.L.P., attorneys for respondent, Daniel Petigrow, Esq., of counsel

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

Petitioner’s children began attending respondent’s schools in 1999. At that time, respondent informed petitioner that his home, located at 53 Basin Road, was within the school district.

During the 2005-2006 school year, respondent discovered that its earlier determination regarding petitioner’s residence was erroneous and that 53 Basin Road was actually located within the City School District of the City of Kingston. As a result, the residency officer notified petitioner that his children were not entitled to attend the district’s schools tuition-free. An appeal to the Commissioner of Education ensued and was dismissed in Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No.15,487.

Petitioner thereafter purchased property at 103 Basin Road, within the district, to “set up an alternative home. ”Petitioner also owns property at 157 Basin Road which is outside respondent’s district.

Petitioner’s children were permitted to continue to attend district schools tuition-free. However, an investigation of petitioner’s residence was initiated.

Surveillance was conducted on February 16 and 18,2012. The investigator reported that on those dates, the in-district residence at 103 Basin Road appeared to be uninhabited, with all activity being observed at 53 Basin Road, outside the district.

Again, petitioner’s children were permitted to continue to attend district schools tuition-free.

Further surveillance was conducted on September 6, 8,11, 19 and 24, 2012. The investigator reported that all of the activity he observed took place at 53 Basin Road and that no activity was observed at 103 Basin Road. The investigator performed multiple “spot checks” of 103 Basin Road, and during each of these checks, the interior of the home was dark and the only vehicle parked on the property was a dump truck without license plates. The investigator reported that the interior lights were on at 53 Basin Road on multiple occasions.

By letter dated January 7, 2013, the residency officer notified petitioner that a question had arisen about his residency and that a residency hearing would be held on January 11, 2013. Petitioner was also notified of his right to present evidence of his children’s right to attend the district’s schools. It appears that the hearing was adjourned until January 28, 2013, at which time petitioner appeared with information to support his claim of residency in the district.

By letter dated January 29, 2013, respondent’s residency officer notified petitioner of her determination that his children were not district residents, but she indicated that they would be permitted to attend the district’s schools until the end of the 2012 – 2013 school year. This appeal ensued.

Petitioner maintains that the school district boundary touches 53 and 103 Basin Road. While petitioner admits that his wife “resides full time” at 53 Basin Road, he contends that he set up “part time house holding” at 103Basin Road and that his children “came and went” from 53 and 103 Basin Road. He maintains that all of his identifiers were changed to reflect that he resides at 103Basin Road. Petitioner contends that at the residency hearing he was not given the opportunity to cross examine respondent’s investigator. Petitioner explains the surveillance by stating that it did not take into account the fact that he runs a landscaping business out of 103Basin Road. Petitioner maintains that the exclusion of his children from the district’s schools is unfair given that respondent perpetuated an error which continued for many years.

Respondent maintains that petitioner’s legal domicile is 53 Basin Road, and that its residency determination was not arbitrary, capricious or unreasonable. Respondent also maintains that petitioner was afforded an adequate opportunity to prove his residency as required under the Commissioner’s regulations. Respondent contends that petitioner cannot rely on a prior mistake by the district as a basis to permit his children to remain in its schools. Finally, respondent alleges that 103 and 53 Basin Road are not contiguous.

I must first address two procedural issues. 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 Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.

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).

Although a formal hearing is not required, the record indicates that respondent provided petitioner with a residency hearing at which he had the opportunity to provide information regarding his residency. In respondent’s January 7, 2013 letter, petitioner was also informed of his right to appeal an adverse residency determination to the Commissioner of Education. On this record, I find that, consistent with the regulations, petitioner has had a full and fair opportunity both at the district level and in this appeal to present evidence in support of his residency claim and to respond to the evidence, including the investigator’s surveillance report, and claims raised by the district.

Turning to the merits, 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 §3202is 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 Rep295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

In this case, there is no dispute that petitioner owns two homes, one in the district and a second outside the district. However, the fact that petitioner owns and pays school taxes on the in-district residence, without more, does not make him a district resident, nor does it entitle his children to attend district schools. In support of his claim of residence within the district, petitioner also submits copies of a bank statement, a gas and electric bill, county and town real property tax bills, his son’s driver’s license, petitioner’s driver’s license, and a vehicle registration. All of these documents would be available to petitioner as the owner of 103 Basin Road and do not necessarily establish residency within the district.

Respondent presented documentation to demonstrate that petitioner does not in fact reside at 103 Basin Road, including voter registration information for petitioner and his wife, and an affidavit from the Ulster County Commissioner of Elections in which she avers that Board of Election annual mailings have been sent to petitioner and his wife at 53 Basin Road since 2000. Respondent also presented a copy of petitioner’s 2012 - 2013 tax bill from the Onteora Central School District for the 103 Basin Road residence which was mailed to petitioner at 53 Basin Road.

Moreover, respondent submits a map from the Ulster County Real Property Services which demonstrates that the school boundary line does not intersect or touch 53 or 103Basin Road, and that those properties are not contiguous. Respondent’s residency officer also avers that at the residency hearing, petitioner admitted that 103 Basin Roadis vacant, that he physically stays there only on occasion, that he “lets the house sit empty,” and that he primarily operates his business from that location. Finally, respondent presents surveillance evidence indicating that petitioner does not reside within the district. Petitioner’s attempt to explain the private investigator’s findings by arguing that all visits to 103 Basin Road took place within his business hours when he was on a landscaping job is not compelling. As respondent argues, the investigator conducted surveillance on both 53 and 103Basin Road on five separate occasions, all of which took place on various days of the week at various times of the day and never observed petitioner or any members of his family at 103 Basin Road. However, petitioner, his wife and son, as well as landscape workers, were observed at 53Basin Road at various times and on multiple occasions during the surveillance period.

In addition, to the extent petitioner attempts to argue in his petition that his properties “touch at the point where the Onteora School District ends and Kingston begins,” I note that he has failed to allege in his petition or to otherwise establish that the boundary line between the two school districts intersects either 53 or 103 Basin Road and, therefore, has failed to establish an entitlement to designate respondent’s district pursuant to Education Law §3203 (Crowe, et al. v. MacFarland, et al.,138 AD2d 788; Appeal of Bd. of Educ. of the Harborfields Cent. School Dist., 41 Ed Dept Rep 15, Decision No. 14,597;Appeal of Bd. Of Educ. Of the Syosset Cent. School Dist.,38 id. 791, Decision No. 14,144).

Finally, while respondent’s initial mistake as to the actual school district in which petitioner’s residence is located is unfortunate, it does not bar respondent from later refusing to admit petitioner’s children. Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision(Parkview Assoc. v. City of New York, et al., 71 NY2d 274;Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No.15,487; Appeal of Araneo, 45 id. 325, Decision No. 15,336).A mistake by a school district representing that a certain property is located within the district does not vest any legal right in such students to attend on a tuition-free basis (Appeal of Gutierrez, 46 Ed Dept Rep 222, Decision No. 15,487; Appeal of Prospero, 37 id. 62, Decision No.13,804).

Based on the record before me, I find petitioner has failed to meet his burden of proof in establishing that he is a district resident, and therefore find respondent’s determination to be neither arbitrary nor capricious.