Appeal of MELISSA and JAMIE CLAREY, on behalf of their children EMILEE and LOGAN, from action of the Board of Education of the Sauquoit Valley Central School District regarding residency.

Decision No. 17,703

(July 22, 2019)

Ferrara Fiorenza, PC, attorneys for respondent, Colleen W. Heinrich, Esq., of counsel

ELIA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Sauquoit Valley Central School District (“respondent”) that petitioners’ residence is outside of the boundaries of the school district and, consequently, that their children, Emilee and Logan (“the students”), are not entitled to attend respondent’s schools without the payment of tuition.  The appeal must be dismissed.

At the time of this appeal, the students attended respondent’s Sauquoit Valley Middle School as 6th and 8th grade students.  The record indicates that the students have attended respondent’s schools exclusively since entering school in kindergarten.

In or around July 2018, petitioners sold their home within respondent’s district and moved to a new home (“the rent-to-own property”).  As explained below, the parties dispute whether this home is located within respondent’s district.  Petitioners assert that they entered into a private contract with the owner of this home to “rent to own” the property.  Subsequent to the move, petitioners informed respondent of their new address.  On or about August 2, 2018, respondent’s superintendent asserted to petitioners that the rent-to-own property was not located within respondent’s district.  Petitioners disputed this statement, and respondent thereafter invited petitioners to submit information to support their claim that the rent-to-own property intersected the school district boundary line.  Respondent maintains that petitioners did not provide any such supporting information.

By letter dated August 23, 2018, respondent informed petitioners that, based on the Oneida County tax map, the rent-to-own property was not located within respondent’s district and that, consequently, the students were no longer entitled to attend the schools of the district.  Respondent invited petitioners to attend a meeting to present any evidence to support their claim of residence.

In a telephone conversation on August 28, 2018, petitioners indicated to respondent that they no longer intended to purchase the rent-to-own property and were temporarily residing at the home of a family member located within the district until they could relocate to a permanent home within the district (the “relative’s property”).  However, petitioners asserted that while the family would no longer be living in the rent-to-own property, as a result of petitioner Melissa Clarey’s telecommuting employment agreement, she was required to remain at the same location for six months to one year for the purpose of demonstrating “stability” to her employer.

On or about September 5, 2018, respondent informed petitioners that, based on documentation provided by petitioners concerning the relative’s property, the students were entitled to attend the schools of the district.

On or about October 29, 2018, petitioners informed respondent that they had secured new housing within the district and provided a lease agreement for the new property (“the rental property”).

Throughout the 2018-2019 school year, respondent continued to conduct a residency investigation which included surveillance of the rent-to-own property.  Based on such surveillance, respondent questioned petitioners’ statements that they resided at the rental property and suspected that they were, in fact, still residing at the initial out-of-district residence.  By letter dated December 4, 2018, respondent informed petitioners that, based on such surveillance, it did not appear that the students were residents of the district entitled to attend its schools.  Respondent invited petitioners to attend a meeting to present any evidence to support their claim of residence.  By letter dated January 16, 2019, respondent informed petitioners of its determination that the students were no longer residents of the district and that the students would be excluded from respondent’s schools as of January 28, 2019.

On or about January 23, 2019, petitioners discussed the residency matter with respondent and again asserted that the rent-to-own property was intersected by the boundaries of respondent’s district.  Petitioners asserted that the students were entitled to attend respondent’s schools and sought a review of petitioners residency in accordance with Education Law §3203.  By letter dated February 1, 2019, respondent informed petitioners that, based upon a review of Oneida County Real Property records, the property at issue abutted the boundaries of respondent’s district but was nevertheless located within the New Hartford Central School District.  Respondent additionally informed petitioners that, in accordance with Education Law §3203, where a boundary line intersects a property, only the recorded owner of the property has the right to designate the school district of attendance.  Respondent further explained that because petitioners were not listed as the property owners, they had no right of designation.  The letter further explained that the students would be excluded from respondent’s schools as non-residents effective February 11, 2019.  This appeal ensued.  Petitioners’ request for interim relief was granted on February 27, 2019.

Petitioners assert that the boundary of respondent’s district intersects the rent-to-own property, and, as such, the students are residents of the district.  Petitioners request a determination that the students are residents of the district and, thus, entitled to attend its schools without the payment of tuition.

Respondent contends that the petition is untimely, and that petitioners lack standing to designate the school district of attendance pursuant to Education Law §3203.  Respondent further contents that petitioners have failed to meet their burden of proof, and that the determination that the students are not residents of the district is neither arbitrary nor capricious.

Respondent initially asserts that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Respondent contends that the appeal should have been commenced within 30 days of the letter dated January 16, 2019, which indicated that the students would be excluded from respondent’s schools on January 16, 2019.  As more fully stated above, the record indicates that, on or about January 23, 2019, petitioners again asserted that the property at issue was intersected by the boundaries of respondent’s district and sought a review of petitioners’ residency in accordance with Education Law §3203.  By letter dated February 1, 2019, in response to petitioners’ request in accordance with Education Law §3203, respondent again determined that the property was not located within its boundaries and reasserted the students’ exclusion date of February 11, 2019.  The record indicates that this appeal was commenced by service on respondent on February 19, 2019, well within 30 days of the decision that the property was located outside of respondent’s district.  Although respondent could have refused to consider petitioners’ subsequent request pursuant to Education Law §3202 in light of its January 16, 2019 determination, respondent continued to entertain petitioners’ request and issued a new, final decision on February 1, 2019 (see Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191).  As a result, I decline to dismiss the appeal as untimely under the circumstances presented.

Nevertheless, the appeal must be dismissed for lack of standing (Appeal of M.F., 57 Ed Dept Rep, Decision No. 17,613; Appeal of Skiff, 57 id., Decision No. 17,191).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Here, petitioners are claiming a right to make a designation of their children’s school district of attendance pursuant to Education Law §3203.  In relevant part, Education Law §3203[1], entitled "Selection of school for attendance of children when district line intersects a dwelling,” provides:

1. 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 by filing with the district clerk of each of such districts a notice of such designation on or before August first in any year and thereafter or, in the case of a single family unit, when such dwelling unit is built or when its owner-occupant's first child commences attending school from such residence and thereafter whenever the ownership of such taxable property changes hands in an arm’s length transaction or, likewise, the first child of its new owner-occupant first commences attending school from such residence and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition.

Petitioners assert that they reside at the rent-to-own property and have entered into an agreement to “rent to own” the property at issue.  However, the record is devoid of any evidence supporting such ownership agreement.  According to the records of the assessor for the Town of New Hartford and the Oneida County Clerk, submitted by respondent, the property at issue is owned by a living trust and petitioners do not provide any documentation to establish an ownership interest in such property.

Education Law §3203(1) confers the right to designate the school district of attendance only upon the “owner of taxable property” in which the boundary line of two school districts intersects the dwelling, or in the case of an owner-occupied single-family dwelling unit, the property on which the dwelling is located.  Absent any records indicating petitioners’ ownership of the property, petitioners cannot claim a right to make such a designation (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191; Appeal of Madison, 45 id. 415; Decision No. 15,370).  In asserting the right to make a designation, petitioners are attempting to assert the rights of a property owner, and they lack standing to do so (Appeal of Skiff, 57 Ed Dept Rep, Decision No. 17,191).  Consequently, the appeal must be dismissed for lack of standing.

Although unclear, to the extent petitioners allege that the rent-to-own property is, in fact, located within respondent’s district, petitioners have failed to meet their burden of proof.  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  Here, petitioners submit computer printouts from two websites which purportedly display the rent-to-own property as well as respondent and a neighboring school district’s boundary line.  There is no information in the record as to what information these websites utilized to generate and portray the school boundary lines.  Respondent, by contrast, submits official tax records from Oneida County demonstrating that the rent-to-own property is not located within respondent’s district.  Weighing these evidentiary submissions, I find that petitioners have not met their burden of proving that the rent-to-own property is located within respondent’s geographical boundaries.

In light of this disposition, I need not consider the parties’ remaining contentions.

Although the appeal must be dismissed, I note that petitioners retain the right to reapply for admission on the students’ behalf at any time, should circumstances change, and to submit any documentary evidence for respondent’s consideration.

THE APPEAL IS DISMISSED.

END OF FILE