Appeal of JOSHUA A. TUNISON, on behalf of his children TYLER and ETHAN, from action of the Board of Education of the Westfield Central School District regarding residency.

Decision No. 17,472

(August 7, 2018)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart and Luisa D. Johnson, Esqs., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Westfield Central School District (“respondent”) that his children (the “students”) are not district residents.  The appeal must be dismissed.

In September 2013, petitioner registered one of the students, Tyler, in respondent’s district.  At that time, petitioner identified Tyler’s address as a location within the geographical boundaries of respondent’s district.  Tyler was thereafter admitted to respondent’s schools.

In September 2017, petitioner registered his other son, Ethan, in respondent’s district.  Petitioner and his family had moved since registering Tyler, and petitioner identified his family’s new address in his residency application for Ethan (the “current address”).  Respondent thereafter admitted Ethan to its schools, and Ethan attended kindergarten for the 2017-2018 school year.

On February 6, 2018, respondent’s superintendent received an anonymous email suggesting that petitioner’s address was located outside the geographical boundaries of respondent’s district.  The superintendent received a second anonymous email on March 13, 2018, which specifically identified petitioner’s family as the residents who lived at the current address.

On March 20, 2018, the superintendent met with petitioner and his spouse to discuss the students’ residency.  At this meeting, petitioner presented evidence in support of his contention that the current address was located within respondent’s district.

In a letter to petitioner dated March 28, 2018, the superintendent indicated that, after reviewing petitioner’s evidence, he had determined that the current address was not located within respondent’s geographical boundaries; consequently, the students were not entitled to attend respondent’s schools without payment of tuition.  The superintendent further indicated that the students would be excluded from respondent’s schools as of April 6, 2018.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 11, 2018.

Petitioner admits that he and the students reside at an address which is located outside of respondent’s district but argues that he and his family have substantial ties to the Westfield community and intend to relocate to the district in “approximately six months ....”  Petitioner also argues that he did not, or had no reason to, know that the current address is not within respondent’s geographical boundaries.  Petitioner seeks a determination that he is a resident of respondent’s district and that the students are entitled to attend its schools without the payment of tuition.

Respondent argues that, as petitioner admits, the students reside at an address which is located outside of respondent’s geographical boundaries; therefore, the students are not entitled to attend its schools without payment of tuition.

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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927).  “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 Powell, 57 Ed Dept Rep, Decision No. 17,320).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  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 Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

As noted above, petitioner admits that he and the students reside outside respondent’s district.  Petitioner bases his request for relief upon his stated intention of eventually moving back to respondent’s district.  In light of petitioner’s admission that he resides outside respondent’s district and that the students reside with him, I do not find respondent’s determination that the students are not district residents to be arbitrary, capricious or unreasonable (see e.g. Appeal of Auguste, 56 Ed Dept Rep, Decision No. 16,940).

Petitioner nevertheless argues that he is a district resident who is temporarily absent from respondent’s district.  A residence is not lost until it is abandoned and another is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  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 K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

Petitioner asserts that he and the students have resided at the current address “for three and a half years.”  Although petitioner cites community ties which he and his family have retained during this time, he offers no evidence as to his efforts to return to respondent’s district.  Petitioner asserts that he will return within “approximately six months ...” and that he and his spouse “are actively searching for a rental or home to purchase that will fit our needs” but, other than these conclusory statements, petitioner has failed to present any evidence of a concrete and realistic plan to return to the district.   Therefore, on this record, given the extensive length of time the students have resided outside respondent’s district and the lack of proof that petitioner has a concrete and realistic plan to return to the district, I cannot conclude that petitioner is temporarily absent from respondent’s district (see e.g. Appeal of M.B., 52 Ed Dept Rep, Decision No. 16,448).

Finally, to the extent petitioner suggests that respondent cannot deny the students admission because it previously admitted them at the current address, such prior admission does not bind or estop the district from making a different determination (see e.g. Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779).  It is well-settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. and Medical Center v. Moore, et al., 52 NY2d 88; Appeal of Perez, 42 Ed Dept Rep 71, Decision No. 14,779). 

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on the students’ behalf at any time, should circumstances change, and to present any information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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