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Decision No. 17,374

Appeal of BARBARA EVANS from action of the Board of Education of the Brewster Central School District regarding a school district boundary.

Decision No. 17,374

(April 11, 2018)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a decision of the Board of Education of the Brewster Central School District (“respondent”) which denied her request to allow her son to attend its schools.  The appeal must be dismissed.

Petitioner resides on a parcel of land which is located partially within respondent’s district and partially within the State of Connecticut (the “property”).  The property has two mailing addresses, one for the New York portion (the “in-district address”) and the other for the Connecticut portion (the “Connecticut address”).  The physical dwelling where petitioner resides is located entirely on the Connecticut portion of the property.  According to the record, the New York portion of the property is vacant and contains no dwellings.

In February 2016, petitioner attempted to register her child in respondent’s district.  Petitioner presented a cable bill bearing the in-district address, a driver’s license reflecting a Connecticut address[1] and a notarized letter from her landlord (a family member) indicating that petitioner was renting property located at the in-district address.[2]

In a letter dated February 12, 2016, respondent’s director of business services (“director”) indicated that the student was not eligible to attend respondent’s schools because petitioner and the student resided in Connecticut.

In a letter dated July 19, 2016, petitioner asserted that she was “now the official owner of the residence in question,” and that the “main issue” regarding her residency within the district “was the fact of homeownership.”  Petitioner requested that respondent enroll the students in respondent’s schools. 

In August 2016, petitioner submitted documents reflecting her purchase of the New York portion of the property to respondent.

In a letter dated August 25, 2016, the director reiterated his conclusion that petitioner and the student were residents of Connecticut and, thus, ineligible to attend respondent’s schools.  The director indicated that the mere ownership of property does not, ipso facto, demonstrate residency within the district.  The director noted that respondent’s policy 5152 permits non-resident families whose properties intersect the border of New York and Connecticut to apply for their children to attend respondent’s schools without the payment of tuition if they submit a survey by a licensed surveyor completed no more than 60 days prior to the date of enrollment showing the state line crosses through their dwelling and proof that they pay taxes to the district.  The director further noted that the district had no proof that the state line “crosse[d] through” petitioner’s dwelling.  This appeal ensued.

Petitioner contends that she and the student reside at the in-district address and, thus, the student is entitled to attend respondent’s schools without the payment of tuition.  Petitioner further asserts that “[t]he district and state line[s] intersect the dwelling” located on the property.  Petitioner also argues that children of other individuals in like circumstances have been allowed to attend respondent’s schools.

Respondent contends that petitioner and the student reside in Connecticut and are, therefore, ineligible to attend its schools without the payment of tuition.  Respondent further asserts that it has enacted policy 5152 to address the issue of properties which intersect the New York and Connecticut border, that petitioner has failed to satisfy the requirements of this policy, and that it applies this policy in a rational manner.

To the extent petitioner alleges that she and the student are residents of respondent’s district, she has failed to meet her burden of proof.  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).

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).

Here, the record reveals that petitioner and the student reside at a dwelling located on the Connecticut portion of the property.  Moreover, as part of her residency application, petitioner submitted a driver’s license which listed an address in Connecticut.  The record further indicates that the New York portion of the property is vacant, contains no dwellings, and that petitioner does not claim a school tax relief credit on the property.  Although petitioner owns property within respondent’s district, 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).  Further, while the cable bill addressed to petitioner at the in-district address is entitled to some probative value, it does not overcome the evidence summarized above.[3]  Although petitioner alleges that the state boundary intersects her dwelling, which could have satisfied the requirements of district policy 5152, she has not submitted a survey as required by such policy and has not provided any evidence to corroborate such allegation.  Therefore, on this record, I cannot conclude that respondent’s determination was arbitrary or capricious.

Additionally, petitioner is ineligible to make a designation pursuant to Education Law §3203(1) under the circumstances of this case.  Education Law §3203(1) provides, in pertinent part:

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend....

The parties agree that petitioner owns property which is located within two school districts.  Were both districts located within New York State, petitioner would be entitled to make a designation pursuant to Education Law §3203(1).  However, one of the school districts is located within the State of Connecticut.  The question, then, is whether Education Law §3203(1) may be afforded extra-territorial effect.

The Commissioner considered the extra-territorial application of Education Law §3203(1) in Appeal of Rosen (28 Ed Dept Rep 574, Decision No. 12,201), a case which is indistinguishable from this appeal.  In that appeal, petitioners owned property which, as here, was located partially within New York and partially within Connecticut.  Petitioners’ home was located on the Connecticut portion of the parcel.  Respondent board of education denied petitioners’ request to enroll their children in its schools on the ground that the provisions of Education Law §3203 did not apply to properties which cross a state line, and that other information in the record demonstrated that the petitioners resided in Connecticut.  The Commissioner agreed with respondent, holding that there was:

[N]o indication in [Education Law §3203] that it was intended to have extra-territorial application, and nothing in the record indicates that the State of Connecticut consented to its application in that state.

The Commissioner further reasoned that Education Law §3203(2) refers to “the school authorities of the district that levies and collects tax,” and the definition of “school authorities” in Education Law §2(12) made it:

[C]lear that the phrase ‘school authorities’, in this instance, is intended to apply to the school authorities created under the provisions of the Education Law and not school authorities of another state.

The above reasoning applies equally to the instant case.  Accordingly, as the owner of a property located within both New York State and the State of Connecticut, petitioner was not entitled to enroll her child in respondent’s district based on the designation provisions of Education Law §3203.

Petitioner also alleges that children of families in like circumstances located outside of respondent’s district have been allowed to attend respondent’s schools.  In support of this claim, petitioner submits maps containing the names of certain individuals and a highlighted portion of an aerial map which purports to represent the properties owned by these individuals.  Respondent asserts, in response, that any families who comply with policy 5152 may attend its schools without the payment of tuition, and that it treats students equally who are in like circumstances.  Petitioner does not specify whether the families whom she identified were eligible to attend respondent’s schools pursuant to policy 5152.  Therefore, on this record, petitioner has failed to demonstrate that families in like circumstances have been treated differently, that policy 5152 is arbitrary or capricious or that respondent has applied policy 5152 in an arbitrary or capricious manner.




[1] The record does not contain a copy of this driver’s license; thus, it is unclear whether the “Connecticut address” identified on the license is the address for the property which is the subject of this appeal.


[2] The record does not contain a copy of this letter.


[3] Although the cable bill lists the in-district address, the evidence in the record suggests that there is no residence located on the in-district portion of the property.  Therefore, while neither party has addressed the issue, presumably the cable bill was delivered to petitioner’s residence on the Connecticut portion of the property.