Decision No. 16,952
Appeal of SAMANTHA ADJMI, on behalf of her children ABRAHAM and ISAAC, from action of the Board of Education of the Jericho Union Free School District regarding residency.
Decision No. 16,952
(August 25, 2016)
Daniel Belano, Esq., attorney for petitioner
Ingerman Smith, L.L.P., attorneys for respondent, Cheryl R. Monticciolo, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Jericho Union Free School District (“respondent”) that her children, Abraham and Isaac, are not district residents. The appeal must be dismissed.
Petitioner states that on or about February 15, 2014, she purchased her residence located in the district (“Brookville address”) where she claims to reside with Abraham and Isaac. The record indicates that petitioner’s children were registered in the district in August 2014. Petitioner states that in November 2014, they began renovation work on their home at the Brookville address. In approximately October 2015, according to petitioner, their “renovation plans changed significantly in scope to include a 5,000 sq. ft. addition” and “at different phases of the renovation [they] sometimes stayed at a second home [she] owned” located at an out-of-district address.
In early April 2016, Isaac’s residency was brought into question during a meeting of high school administrators when it was reported to the district’s assistant superintendent for personnel and educational operations (“assistant superintendent”) that Isaac’s “mother was picking up both [him] and his brother every day after school.” At that time, according to respondent, a Google search was conducted of the Brookville address which “showed a house still under construction.” As a result, on April 5, 2016, a site visit was conducted which “revealed that the house ... was not being occupied” and further, “[t]here was a construction fence surrounding the property, portable toilets outside the home, but no visible work was taking place on the house at the time.” After these findings were reported to the assistant superintendent, he contacted an investigator who determined that petitioner’s vehicle was registered to an out-of-district address. Subsequently, on April 21, 2016, at a conference with petitioner regarding her son Abraham at which the middle school principal was also present, the assistant superintendent inquired about the family’s residence. Respondent alleges that in response to the superintendent’s question, petitioner stated that her family did not live at the Brookville address “and had not been living there for the past two years,” a claim that petitioner denies. Respondent further contends that petitioner stated that she and her children were presently living at the out-of-district address and had been for the last two years due to “delayed construction” on the Brookville address, and also that “she had been driving the children to and from school” from the out-of-district address since registering the children in the district. Petitioner expressly denies these contentions as well.
By letter dated April 21, 2016, the assistant superintendent notified petitioner and her husband that based on this information, her children “will be withdrawn from school immediately.” However, no action was taken by the district to exclude the children and on May 10, 2016 another letter was sent to petitioner which stated that the children would be excluded at the end of the day on May 13, 2016. The May 10, 2016 letter also offered petitioner an opportunity to meet with the assistant superintendent to discuss the children’s residency and to submit for consideration any documentary evidence related thereto, and advised petitioner of her appeal rights. On May 13, 2016, the assistant superintendent met with petitioner’s attorney; however, the record indicates that petitioner and her husband were not present.
The record further indicates that at the May 13, 2016 meeting, petitioner’s attorney provided tax bills and purchase documents related to the Brookville address, as well as a letter from the construction company explaining the delays in the completion of the home’s construction. Respondent states that no documentation was provided to show that the family actually lived at the Brookville address, nor was any evidence presented demonstrating that they did not live at the out-of-district address. Additionally, on May 13, 2016, the district conducted another site visit to the Brookville address to ensure that petitioner and her family were still not residing there; such inspection confirmed that “the house was still under construction and was clearly not being occupied.” The record indicates that the children were excluded from the district effective at the end of the day on May 17, 2016. This appeal ensued. Petitioner’s request for interim relief was granted May 25, 2016.
Petitioner asserts that both Abraham and Isaac reside with petitioner within respondent’s district, have done so for over two years, and intend to reside there for the duration of their attendance in the district. Petitioner further states that the children are “temporarily residing” with her at the out-of-district address during renovations at the Brookville address, “as we attempted to move back into the main portion” of the Brookville address “but wood dust and paint fumes from several weeks of wood working have made it impossible and unsafe to stay.” Petitioner also states that “[t]he renovation project has been substantially delayed by the builder thus delaying our ability to stay in our home” at the Brookville address, but that it is their “intention to return [to their] home within the next few weeks as per the [b]uilder.” In support of her claim, petitioner includes a copy of her property tax bills and payment documentation for the Brookville address, the district letter dated May 10, 2016 referenced by petitioner as that which “purports to be the final determination of the district,” as well as an undated letter from the builder stating that the project at the Brookville address:
was pushed a few times for its completion date due to changes in specs and square footage. The house was originally set to be at 5,000 square feet, and later was changed to 10,000 square feet. In order to continue the project, we needed to wait on approvals, permits, and special orders on materials for the new specs.
Petitioner requests a determination that her children are residents of the district and are entitled to attend school without the payment of tuition. Petitioner also contends that the district gave her:
no opportunity for a hearing on the merits of my case but only allowed for an informal conference where we could discuss the [a]sst. [s]uperintendent’s ‘factual finding’ and I was informed I could provide documentary evidence to be considered by the district.
Petitioner states that the informal meeting on May 13, 2016 was attended by her attorney who provided the district with “current tax bills ... proof of payment of taxes” and a “letter from the builder explaining the delays in the renovations.” Petitioner also asserts that “[n]o notice of any hearing was ever served in this matter” and “no hearing was ever held at which the [p]etitioner could question the allegations before her children were expelled from their schools.” Petitioner further contends that respondent’s evidence in the form of affidavits regarding elements of the district’s residency investigation and letters “were never made part of any record in any hearing, were never provided to [p]etitioner,” and never challenged, or had to be explained or defended by the assistant superintendent; in short, petitioner alleges that there was “no due process whatsoever in this proceeding.” Petitioner further asserts in her reply that, as none of the information presented by respondent in the instant appeal “is part of the record of this matter, nor was ever presented as evidence in any hearing on this matter,” it “should not be considered by the Commissioner.”
Respondent contends that petitioner fails to state a claim upon which relief can be granted, the requested relief should be denied and the appeal dismissed as petitioner has not established that her children permanently reside within the district. Respondent argues that petitioner openly admitted to district officials that she and her children were not living within the district and had not been for the past two years. Respondent also asserts that petitioner did not provide the district with any evidence that the students actually reside within the district and that the Brookville address is an unoccupied home in the midst of construction. Further, respondent states that it confirmed that petitioner and her children in fact live at an out-of-district address. Thus, respondent asserts that the district’s determination was neither arbitrary nor capricious and the appeal should be dismissed in its entirety.
I will first address the procedural issues. 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).
Petitioner was not entitled to a formal fact-finding hearing in this matter under §100.2(y) of the Commissioner’s regulations (Appeal of Zhang and Xue, 54 Ed Dept Rep, Decision No. 16,733). Furthermore, I find that petitioner had an opportunity to submit information regarding Abraham and Isaac’s right to attend school in the district in accordance with §100.2(y) at the May 13, 2016 meeting with the assistant superintendent, which was attended by her attorney, who did, in fact, submit such documentation upon petitioner’s behalf prior to respondent’s final determination. While I note that the petition (which was served on respondent on May 17, 2016) appears to treat respondent’s May 10, 2016 determination letter (attached to the petition) as the district’s final determination for purposes of the appeal, and respondent issued a second and final exclusion letter on May 17, 2016 that was not served on petitioner until May 18, 2016, both determination letters issued by the district appear to comply with the requirements of §100.2(y). Despite the fact that petitioner appears to base her appeal on the May 10, 2016 determination letter, as petitioner has had an opportunity to present evidence in support of Abraham and Isaac’s residency claim both here and at the informal conference with the district through her attorney, and has had an opportunity to respond to the evidence presented by respondent herein, I will address the merits of petitioner’s appeal (see e.g., Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673).
Turning to the merits, Education Law §3202(1) provides, in pertinent part, as follows:
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). Pending home construction does not, in and of itself, establish residency (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558; Appeal of Hussain, 46 id. 108, Decision No. 15,456).
A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456). A person’s temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one’s permanent residence (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450). 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).
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 find that petitioner has failed to meet her burden of proving that Abraham and Isaac reside in respondent’s district. Petitioner states that the Brookville address, which respondent found to be under renovation and not occupied, “is the same home where petitioner lives with her children and pays property taxes....” However, the property tax bills and payment documentation for the Brookville address submitted in support of the petition are insufficient to establish residency. As noted above, the mere fact that one owns a house or property in the district, pays taxes, or has pending home construction in the district, is not sufficient to establish residency.
Nor does petitioner offer any other evidence, beyond conclusory statements, to show that her current living arrangements are temporary, or that demonstrate her continuing ties to the community and efforts to return. Petitioner appears to argue that while the Brookville address is the “home where petitioner lives with her children” and that they have resided there for “over two years,” they “sometimes stayed at a second home” she owned outside the district during different phases of the renovation and they are “temporarily residing” at the out-of-district address due to project delays and continuing work. However, there is no indication that petitioner informed the district that her family would be temporarily residing outside the district due to the renovations or that the project had been delayed (see Appeal of Zhang and Xue, 54 Ed Dept Rep, Decision No. 16,733; Appeal of Jankovic, 46 id. 441, Decision No. 15,558). The letter from the builder that petitioner submits as evidence to support her stated “intention to return” to the Brookville address “within the next few weeks” - while documenting delays, changes in specifications and the need to wait for “approvals, permits, and special orders on materials” – is undated and does not contain a schedule or otherwise address the question of when the work will be completed, nor does it make any statements as to where petitioner and her children were living at any point or whether it was temporary (see Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827).
On the other hand, respondent has presented evidence in the form of two affidavits from district personnel attesting to the two site visits that were conducted by the district showing an unoccupied home that was under construction, the second of which found a “chain link temporary construction fence surrounding the property, portable toilets outside the home, and construction workers and work trucks present on the property.” The record indicates that respondent’s determination that Abraham and Isaac are not district residents was based on the results of the site visits as well as petitioner’s statements that she and her children live at the out-of-district address and that she has been driving her sons to school for the last two years. Although petitioner expressly denies driving her sons to school for the last two years, the fact that she made this statement is supported by affidavits submitted by two district personnel which corroborate the initial observation that petitioner was seen picking up both of her sons every day after school. Even without this statement, respondent submits evidence showing that petitioner is listed as owner of the out-of-district address on a property tax bill as of February 19, 2016 and provides an affidavit from district personnel stating that, in delivering a letter to petitioner at the out-of-district address, he spoke with “[a] person who identified herself as the housekeeper” who “verified that [petitioner’s] family resided there.” While petitioner has submitted a reply in this matter, she provides no evidence to refute respondent’s evidence.
Consequently, on this record, I find that petitioner has not carried her burden of establishing that respondent’s decision was arbitrary or capricious (see e.g. Appeal of Zhang and Xue, 54 Ed Dept Rep, Decision No. 16,733). Although the appeal must be dismissed, petitioner retains the right to reapply for admission to the district on her children’s behalf, should circumstances change, and to present any new information for respondent’s consideration.
THE APPEAL IS DISMISSED.
END OF FILE
 The May 10, 2016 letter further stated that “if you choose not to meet with me to provide further written documentation in support of your claim that your children reside in the [district], please take this letter as a final determination that your children will be excluded as a nonresident, effective May 13, 2016 at 5:00 p.m.”
 The assistant superintendent states in his affidavit that “[t]his deadline was extended from the original date of May 13th at 5:00 pm (referenced in my May 10th letter) to allow the family to enroll the students in the proper [school district].” This affidavit further notes that the May 17, 2016 letter was hand-delivered by a district messenger on the morning of May 18, 2016 to petitioner’s out-of-district address and given to “[a] person who identified herself as the housekeeper” who verified that petitioner’s family resided there. The district also confirmed petitioner’s ownership of the out-of-district property through a tax bill, according to the affidavit.
 I note that petitioner is represented by counsel in this matter and did submit a reply to respondent’s answer.