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Decision No. 16,525


 Appeal of HELEN DEVICO, on behalf of her daughter JOHNNA, from action of the Board of Education of the Highland Central School District regarding residency.

Decision No. 16,525

(August 26, 2013)

Klein Varble & Associates, P.C., attorneys for petitioner, Gina M. DeCrescenzo, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Highland Central School District (“respondent”) that her daughter, Johnna, is not a district resident. The appeal must be dismissed.

Petitioner and her daughter reside in Highland, New York. Over the years, petitioner has paid school taxes to the New Paltz Central School District (“New Paltz”), but her children have all attended respondent’s schools. During the same period, petitioner has paid real property taxes to the town of Lloyd which encompasses Highland. In June 2012, Johnna was promoted from elementary school to middle school and, as a result, a new bus route was determined with a new bus driver. The new driver advised respondent that petitioner’s residence may not be located within the district.

Respondent investigated petitioner’s residency and determined that petitioner’s home is just outside the boundary of respondent’s district and within New Paltz.

By letter dated September 5, 2012, respondent’s director of student services and residency officer (“residency officer”) informed petitioner and her husband that she had reason to believe that Johnna was not a district resident and was therefore not entitled to attend respondent’s schools tuition-free. Petitioner was given the opportunity to submit information in support of Johnna’s residency within the district and to arrange for a meeting with the residency officer. The record indicates that, on or before September 12, 2012, petitioner met with the residency officer and provided a copy of receipts for her 2010 taxes indicating that she paid real property taxes to the town of Lloyd and that she paid school taxes to New Paltz.

By letter dated December 13, 2012, the residency officer informed petitioner and her husband of her final determination that Johnna is not a district resident and of their right to appeal such determination to the Commissioner pursuant to Education Law §310. The residency officer also stated that, in recognition of respondent’s error, Johnna would not be excluded from respondent’s schools until June 21, 2013. This appeal ensued. Based on the residency officer’s December 13, 2012 letter, petitioner’s request for interim relief was determined to be moot.

Petitioner alleges that respondent’s determination is arbitrary and capricious and not based on substantial evidence. Petitioner maintains that she was not given a residency hearing or an opportunity to speak with respondent board. Petitioner contends that she has not been provided with evidence that her property’s boundary line changed and that New Paltz has not been notified thata dispute exists. Petitioner maintains that her daughter will be adversely affected by a transfer to New Paltz schools.

Respondent maintains that petitioner has failed to meet her burden of establishing the facts upon which she seeks relief and that its determination was reasonable and rational. Respondent asserts that its mistake in permitting Johnna to attend its schools does not entitle her to continue attendance on a tuition-free basis and that the doctrine of equitable estoppel does not apply in this case.

Petitioner claims that she was denied a hearing before respondent to ascertain her residency. 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). In an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa,48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen,48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). The regulation does not require a hearing and petitioner admits that she received the residency officer’s September and December 2012 letters and that she met with the residency officer to submit proof of residency on September 12, 2013. On this record, petitioner has not carried her burden with respect to this claim.

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).

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).

Other than her unsubstantiated allegations, petitioner provides no evidence to establish that her home is located within respondent’s district. Petitioner does not provide copies of a tax map, for example, evidencing the boundary line between respondent’s district and New Paltz. Petitioner argues, however, that it is a school district’s responsibility to ascertain whether a particular parcel is within school district boundaries, and that school authorities have done so by virtue of the fact that her children have attended respondent’s schools since 2002, and the fact that she pays real property taxes for the town of Lloyd which encompasses Highland, New York. In making her argument, however, petitioner acknowledges that, for several years, she has been paying school taxes to New Paltz, rather than to respondent.

Petitioner cites Real Property Tax Law §1302(2) and Hudson Falls Central School District v. Town of Moreau Assessor (202 AD2d 716, lv denied 83 NY2d 760) for the proposition that, for purposes of preparing the assessment roll for the levy and collection of school taxes, school authorities have “full responsibility for ascertaining whether real property is within the school district boundaries.” However, petitioner has been paying school taxes to New Paltz for several years and respondent has produced an affidavit from its Director of Student Services indicating that petitioner’s home is three houses outside of the Highland School District and petitioner has produced no evidence to the contrary. On this record, it appears that the districts involved complied with Real Property Tax Law §1302(2) and determined that petitioner’s property is within New Paltz for purposes of school taxes, but respondent mistakenly treated petitioner’s children as district residents since 2002.

It has long been settled that, in the context of making residency determinations pursuant to Education Law§3202, a school district’s mistake as to the actual school district in which a residence is located does not bar the district from later refusing to admit a child as a non­resident student. 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, 37id. 62, Decision No. 13,804).

Likewise, other than her conclusory assertions, petitioner has failed to establish that the boundary line between the two school districts intersects her property and, therefore, has failed to establish an entitlement to designate respondent’s district pursuant to Education Law§3203 (see Crowe, et al. v. MacFarland, et al., 138 AD2d788; 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, aff’d, Bd. of Ed. OysterBay–East Norwich C.S.D. v. Mills, Sup. Ct. Albany Co.[Sheridan, J.], January 31, 2000).

Finally, petitioner argues that denial of the requested relief would adversely affect her daughter. Specifically, petitioner alleges that Johnna’s enthusiasm about school, her school work and her grades have been affected by the potential change in schools. The mere fact that petitioner’s daughter may have some difficulty adjusting to a new school, while regrettable, is simply not a sufficient basis for overturning respondent’s decision(see Appeal of Marston, 34 Ed Dept Rep 105, Decision No.13,247).

On the record before me, I find that petitioner has failed to meet her burden of proving that she resides in respondent’s district and therefore find respondent’s residency determination to be neither arbitrary nor capricious. In light of this disposition, I need not address the parties’ remaining contentions.