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Decision No. 17,614

* Subsequent History: Matter of Wertman v New York State Educ. Dept.; Supreme Court, Albany County; Special Term (Cholakis, J.); Decision, order, and judgment dismissed petition to review December 23, 2019. *

Appeal of DANIELLE WERTMAN, on behalf of her children ALISON, KAELYN, AND EMERSON, from action of the Board of Education of the Brewster Central School District regarding a school district boundary.

Decision No. 17,614

(April 4, 2019)

Gronbach Law Offices, LLC, David R. Gronbach, Esq., of counsel

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 for transportation to a nonpublic school based on non-residency.  The appeal must be dismissed.

Petitioner and the students reside 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.

Respondent’s policy 5152 (“Admission of Non-Resident Students”) includes a section applicable to petitioner’s property entitled “New York/Connecticut Border Properties.”  This policy indicates that families “whose property intersects the border of New York and Connecticut” may apply to attend respondent’s district free of tuition if they present a survey “prepared by a licensed surveyor showing the state line crosses through their dwelling.”  The policy further requires that the survey be dated no earlier than 60 days prior to the date upon which the individual seeks enrollment and that the property owner must demonstrate that he or she pays taxes to the district.

The record indicates that petitioner requested transportation services from respondent for her children to St. Mary’s School, a nonpublic school, for the 2018-2019 school year.[1]  In a letter to petitioner and her spouse dated July 19, 2018, respondent’s residency officer indicated that the district had received information that petitioner and her spouse may not reside in the district.  This letter referenced policy 5152 and requested that petitioner submit a survey to respondent as described in policy 5152 by August 17, 2018.

On August 9, 2018, petitioner, her spouse, and the residency officer met to discuss the students’ residency.  At the meeting, petitioner and her spouse submitted documentary evidence bearing the in-district address to the district but did not present a survey as contemplated by policy 5152.  Petitioner and her spouse also admitted, according to the residency officer, that any such survey “would not show that the property line intersected their dwelling.”

In a letter dated August 9, 2018, the residency officer informed petitioner and her spouse of the district’s determination that they were not district residents and that the students were not entitled to receive transportation services or attend school in the district.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 7, 2018.

Petitioner contends that respondent is estopped from declaring that the students do not reside within its district because, after the dwelling was built on the property in 1993 or 1994, the district permitted the prior owners of the property to designate respondent’s district pursuant to Education Law §3202.  Petitioner also argues that the district previously allowed another resident with similar circumstances to designate respondent’s district in 2001.  In support of her claim of residency within respondent’s district, petitioner submits documentary evidence bearing the in-district address and describes her family’s community ties to the district.  Petitioner further complains that respondent revised policy 5152 in 2016 “without any actual notice” to her.  Petitioner seeks a determination that the students are residents of respondent’s district and entitled to receive transportation and attend its schools without the payment of tuition.

Respondent contends that petitioner and the students reside in Connecticut and are, therefore, ineligible to receive transportation or attend its schools without the payment of tuition.  Respondent further asserts that it amended policy 5152 in 2016 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.

First, I must address the procedural issues.  Petitioner objects to respondent’s answer on the ground that it is untimely.  This appeal was commenced by service of the petition on August 30, 2018.  Thus, respondent’s answer was required to be served by September 19, 2018.  The affidavit of service filed with my Office of Counsel attests that the answer was served upon petitioner by regular mail on September 19, 2018.

However, in a letter dated October 23, 2018, petitioner alleges, among other things, that respondent’s affidavit of service was false and that the answer was actually served by respondent on September 20, 2018, after the 20-day period for serving the answer had expired.  Accordingly, petitioner argues that the late answer should be rejected.  Enclosed as an exhibit to petitioner’s letter is an envelope from respondent addressed to counsel for petitioner postmarked September 20, 2018.  Respondent does not respond to these allegations.

Section 275.8(b) of the Commissioner’s regulations states that service of an answer is complete upon deposit in a postpaid properly addressed wrapper in a post office or other official depository.  Here, the undisputed evidence in the record demonstrates that, contrary to respondent’s affidavit of service, the answer was mailed on September 20, 2018.  Therefore, I have not accepted respondent’s answer, and petitioner’s factual statements in the petition are deemed to be true (Appeal of Young, 58 Ed Dept Rep, Decision No. 17,523; Appeal of R.S., 57 id., Decision No. 17,238).  However, respondent submitted an affidavit from respondent’s assistant superintendent in opposition to petitioner’s request for interim relief, and this affidavit is properly part of the record before me.  Therefore, I have considered this affidavit to the extent that it is responsive to the allegations contained in the petition (see Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526; Appeal of Brarens, et al., 51 id., Decision No. 16,317).

Next, respondent objects to the scope of the reply which petitioner submitted in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Because I have not accepted respondent’s answer into the record, it is unnecessary to consider any portions of petitioner’s reply.

Respondent also objects to petitioner’s submission of two memoranda of law in this appeal.  Together with her petition, petitioner served a document entitled “Memorandum of Law in Support of Stay and Appeal” (“memorandum of law”).  Pursuant to §276.4 of the Commissioner’s regulations, petitioner was required to serve her memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever is later.  While petitioner’s memorandum of law should have been served after the answer (which, as explained above, I have not accepted) or reply, respondent has not demonstrated any prejudice by virtue of the earlier submission (Appeal of The Sea Cliff – North Shore Property Owners Committee, 54 Ed Dept Rep, Decision No. 16,730).  Therefore, I have considered petitioner’s memorandum of law.

In addition to the memorandum of law, petitioner submitted a document entitled “Memorandum of Law” (“supplemental memorandum of law”) served on respondent via mail on October 14, 2018.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  In light of the fact that petitioner served both the memorandum of law and the supplemental memorandum of law before the time limit for service of her memorandum of law expired and the supplemental memorandum of law does not add any belated assertions or exhibits that are not part of the pleadings, I have accepted the documents (see Appeal of Sidmore, 58 Ed Dept Rep, Decision No. 17,463; Appeal of Gimbrone, 56 id., Decision No. 17,036).

Turning to the merits, under Education Law §3635(1)(a), school districts are generally required to provide transportation, within prescribed mileage limits, to “all the children residing within the school district” between their homes and school.  Therefore, petitioner’s right to transportation services for her children is dependent upon her children’s status as district residents, and respondent could properly deny her request for transportation based on a determination that they are not district residents.

To the extent petitioner alleges that she and the students 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 students reside at a dwelling located on the Connecticut portion of the property.  The record further indicates that the New York portion of the property contains no dwellings and is therefore vacant.  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 documentary evidence submitted by petitioner, which is addressed to her at the in-district address – including mail, vehicle registrations and licenses, and voting information – is entitled to some probative value, it does not overcome the evidence in the record that petitioner’s residence is located in Connecticut and that the New York portion of her property is vacant.  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.

I recently considered the extra-territorial application of Education Law §3203(1) in Appeal of Evans (57 Ed Dept Rep, Decision No. 17,374) which, in turn, relied upon Appeal of Rosen (28 Ed Dept Rep 574, Decision No. 12,201).  The facts of those appeals are materially indistinguishable from the instant appeal.  In those appeals, petitioners owned property which, as here, was located partially within New York and partially within Connecticut.  The petitioners’ homes were located on the Connecticut portion of the parcels.  The boards of education in those appeals denied petitioners’ requests to enroll their children in their 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.  In Appeal of Rosen (28 Ed Dept Rep 574, Decision No. 12,201), the Commissioner reasoned 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 (Appeal of Evans, 57 Ed Dept Rep, Decision No. 17,374; Appeal of Rosen, 28 id. 574, Decision No. 12,201).

While petitioner’s children may have been able to attend respondent’s district as non-resident students pursuant to policy 5152, the record reflects that petitioner has not obtained a survey of the property as required by this policy.  Therefore, there is no basis in the record to find that the students may attend respondent’s schools or receive transportation as non-residents pursuant to policy 5152.

On appeal, petitioner suggests that the requirements of policy 5152 are not applicable to her because policy 5152 was enacted in 2016 “without any actual notice” to her.  However, petitioner cites no authority for the proposition that respondent was required to provide her with “actual notice” of its intent to amend its policies, including policy 5152.  In any event, respondent’s assistant superintendent asserts in an affidavit that proposed amendments to policy 5152 were discussed at public board meetings on April 5 and 12, 2016, and that the current version of policy 5152 was adopted on August 16, 2016.  Petitioner does not allege that policy 5152 is facially invalid or otherwise explain how it is invalid as applied to her.  Thus, I find that respondent permissibly amended policy 5152 at a public board meeting, that petitioner had notice of the change in policy through public discussions and action at the board meetings, and that such policy applied to petitioner’s property at all times relevant to this appeal.  Consequently, petitioner’s arguments concerning a prior version of policy 5152 in effect “since 2006” or at the time she purchased the property are not relevant under the circumstances.

Finally, petitioner suggests that respondent is estopped from excluding the students as non-residents because it permitted the children of prior owners of the property to attend its schools in 1993; permitted her children to receive transportation prior to the events described in this appeal; and, by letter dated September 5, 2001, permitted the children of a district resident whose property intersects the New York and Connecticut border to attend its schools in 2001.  Prior decisions of a district do 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).  Thus, to the extent petitioner suggests that respondent was estopped from making a determination of non-residency and denying the students transportation to a nonpublic school, such contention is without merit.  Moreover, as indicated above, policy 5152 was amended in August 2016 to address the extent to which non-residents whose “property intersects the border of New York and Connecticut” may attend respondent’s schools.  Thus, any decisions made under prior versions of this policy which were not in effect during the events giving rise to this appeal are not relevant in this appeal.[2]

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.

I have considered petitioner’s remaining contentions and find them to be without merit.




[1] Petitioner’s written request for transportation for the 2018-2019 school year is not included in the record.

[2] Additionally, with specific respect to the September 5, 2001 letter, petitioner asserts in a conclusory manner that these circumstances “involv[ed] another property split by the Brewster/Connecticut border” but provides no proof of this assertion.