Decision No. 17,726
Appeal of KIMBERLY B. ALLEN, on behalf of her children OLIVIA and NOAH, from action of the Board of Education of the City School District of the City of Saratoga Springs regarding residency.
Decision No. 17,726
(August 8, 2019)
Honeywell Law Firm, PLLC, attorneys for respondent, Paul M. Aloy, Esq., of counsel
ELIA., Commissioner.--Petitioner challenges the determination of the Board of Education of the City School District of the City of Saratoga Springs (“respondent”) that her children, Olivia and Noah (collectively, “the students”), are not district residents. The appeal must be dismissed.
At all times relevant to this appeal, petitioner owned two homes. The first home is located within respondent’s district (“the in-district address”). The second home (“the out-of-district address”) is located within the Schuylerville Central School District.
Petitioner purchased the in-district address on March 30, 2001. Petitioner married thereafter, and she and her family continued to reside at the in-district address. On or about November 24, 2012, petitioner and her then-spouse purchased the out-of-district address and it became their primary residence.
In or about January 2015, petitioner and her then-spouse finalized a separation agreement. According to petitioner, she and the students relocated to the in-district address as their primary residence a month later.
In or about March 2015, petitioner registered one of her children to attend kindergarten at respondent’s Caroline Street Elementary School (“the school”).
On May 30, 2017, petitioner’s former spouse passed away. Petitioner asserts that she and the students continued to visit the out-of-district address because it helped with the children’s grieving process.
On March 26, 2018, an anonymous source advised respondent’s central registrar (“registrar”) that petitioner and the students did not reside within the district’s boundaries. The registrar investigated and discovered that petitioner owned both the in-district and the out-of-district addresses. The registrar further discovered that the students’ address on file with the district was petitioner’s work address. Thereafter, the registrar arranged for surveillance of the in-district and out-of-district addresses.
Respondent conducted surveillance of the in-district and out-of-district address on 16 occasions in April, November, and December 2018, as well as January 2019. Petitioner and the students were observed multiple times at the out-of-district address but were never observed at the in-district address.
In a letter to petitioner dated January 30, 2019, the registrar indicated that the district had reason to believe the students resided outside respondent’s district. The registrar invited petitioner, in accordance with 8 NYCRR §100.2(y), to submit any information which she wished respondent to consider concerning her residency.
On February 12, 2019, petitioner met with the registrar and respondent’s assistant superintendent to discuss the students’ residency. At this meeting, petitioner and the registrar discussed the issue of utility bills for the in-district address, and petitioner agreed to provide the registrar with such information. On February 14, 2019, petitioner emailed a quarterly utility bill for the in-district address to the registrar.
In a letter to petitioner dated February 14, 2019, the registrar informed petitioner of her determination that the students did not reside within respondent’s district. The registrar explained that her determination was based upon: (1) surveillance of the in-district and out-of-district addresses; (2) interviews with neighbors of the out-of-district address and “housekeeping staff” employed by petitioner; (3) a package addressed to petitioner was observed at the out-of-district address; (4) a bus driver employed by the district had not observed Olivia at the in-district address for months; and (5) petitioner’s claiming of a School Tax Assessment Relief (“STAR”) exemption on the out-of-district address since 2013. The registrar also responded to several explanations which petitioner had provided concerning the students’ residency at the February 12, 2019 meeting. This appeal ensued. Petitioner’s request for interim relief was determined to be moot.
Petitioner contends that she resides at the in-district address. Petitioner argues that she has entered into a contract with a real estate agent to sell the out-of-district address. Petitioner refutes the explanations offered by the registrar in her February 14, 2019 letter. Accordingly, she seeks a determination that the students are district residents entitled to attend respondent’s schools without payment of tuition.
Respondent argues that its determination was based upon the evidence before it and was neither arbitrary nor capricious.
First, I must address a procedural matter. Although respondent’s memorandum of law made reference to a reply, at the time my Office of Counsel received respondent’s memorandum of law, no such reply had been filed. My Office of Counsel thereafter requested that the parties provide a copy of petitioner’s reply. Both parties complied with this request. The copy of the reply submitted by petitioner contains an affidavit of service indicating that the reply was timely served.
Respondent objects to consideration of petitioner’s reply on two bases. First, respondent argues that the reply should not be considered “to the extent [it] was not previously filed by Petitioner with the Commissioner ....”
A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]). If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).
Although my Office of Counsel did not initially receive petitioner’s reply, petitioner asserts that she mailed a copy to the attention of my Office of Counsel and that she is “at a loss to understand why this Reply did not” arrive. Thus, it appears that the reply was timely served on respondent and that petitioner attempted to file a copy of the reply as required by 8 NYCRR §275.9. Under such circumstances, I find any delay in filing the reply to be harmless error and have considered the reply in reaching my determination (Appeal of a Student with a Disability, 45 Ed Dept Rep 81, Decision No. 15,264; Appeal of Sigsby, 44 id. 97, Decision No. 15,109; Appeal of McSween, 42 id. 59, Decision No. 14,775).
Respondent also objects to the content of petitioner’s reply. 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). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
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; Appeal of Cross, 44 id. 58, Decision No. 15,098). “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; Appeal of Sigsby, 44 id. 97, Decision No. 15,109). 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).
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; Appeals of St. Villien, 44 id. 69, Decision No. 15,101). 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 (8 NYCRR §275.10; (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeals of St. Villien, 44 id. 69, Decision No. 15,101).
On appeal, petitioner submits substantial documentary evidence identifying, or associating her and her children with, the in-district address; namely, copies of her driver’s license; her family’s passports; property tax bills and receipts; a utility bill; STAR tax documentation; homeowner’s insurance documents; automobile insurance documents; a electricity and gas bill; a voter registration card; the deed; her marriage certificate; birth certificates for both children; the students’ father’s death certificate; the students’ immunization records; and the students’ report cards from their school. While this documentary evidence bearing petitioner and/or the students’ name(s) and the in-district address is entitled to some weight, it is not dispositive where contrary surveillance evidence exists (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636). Moreover, the mere fact that one rents or owns a house or property in-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).
Respondent based its determination, in large part, upon surveillance of the in-district and out-of-district addresses. On November 5, 8, 14, 15, 19, 2018 and January 18, 2019, an investigator observed petitioner leave the out-of-district address in the morning with the students in petitioner’s vehicle; thereafter, petitioner proceeded to the school and dropped the students off. Additionally, on December 12, 2018 and January 16 and 17, 2019, petitioner’s vehicle was observed returning to the out-of-district address in the evening and entering the garage of the out-of-district address.
In the petition, petitioner argues that the surveillance evidence is not probative of the students’ residency because “every single morning before bringing [the] children to school, and every single night after picking up [the] children after after-care or their extracurricular activities,” she and the students visit their family dog, who lives at the out-of-district address due to health conditions. Petitioner admits that she and the students have, “over the past year ... rested our heads at both residences” (i.e., the in-district and out-of-district addresses), but asserts that they have spent more time at the in-district address than the out-of-district address.
Weighing respondent’s surveillance evidence against petitioner’s explanations, I find that petitioner has not met her burden of proving that respondent’s conclusion was arbitrary or capricious. On 16 days of surveillance, neither petitioner nor the students were observed at the in-district address. While petitioner’s explanation that she and the students were visiting the family dog at the out-of-district address on each of these dates of surveillance is possible, it is not probable given the number of days of surveillance and the extended time over which it was conducted. As indicated above, surveillance was conducted at different times of the day in April, November, and December 2018, and January 2019. Moreover, petitioner admits that she and the students have resided at the out-of-district address, at unspecified times, “over the past year.” Under these circumstances, I cannot find respondent’s determination to be arbitrary or capricious.
Respondent’s determination is further supported by unsolicited statements made by two individuals to respondent. First, as indicated above, the registrar avers in her affidavit that an individual contacted the district in March 2018 and asserted that petitioner did not reside within the district. Although this individual wished to remain anonymous, she indicated that she lived near the out-of-district address. This same individual contacted the registrar in October 2018 to reiterate her concerns with petitioner’s residency. In response, the registrar assured the individual that the district was investigating the matter. The individual then responded: “[o]h, that would explain why [petitioner] showed up for like a week-and-a-half at [the in-district address] last April.”
Additionally, the investigator avers in his affidavit that while conducting surveillance on November 4, 2018, the investigator encountered a neighbor who lived “in close proximity” to the in-district address; respondent asserts that this neighbor “had a direct line of sight from his residence to Petitioner’s house.” The neighbor reported that petitioner “does not [live], and has not  lived,” at the in-district address “for quite some time.” The neighbor further reported that the in-district address “is vacant except when rented during the Saratoga racecourse season.” The neighbor indicated that he believed petitioner resided off a particular road, and the record reflects that the out-of-district address is, in fact, located off of this road.
Petitioner attempts to discount these remarks by explaining that she had a “falling out” with “the female neighbor to one side of” the in-district address and has a “poor relationship” with the male neighbor on “the other side” of the in-district address. It appears from the record, however, that the anonymous source and neighbor are not the same individuals described by petitioner. The anonymous source informed the district that she lived near the out-of-district address, not the in-district address. With respect to the neighbor, respondent asserts that “[u]pon information in [sic] belief, the parent is not one of the ‘neighbors’ described by Petitioner.” This is corroborated by the fact that, according to respondent, the neighbor’s home is not located next to the in-district address but, instead, “in close proximity” to the in-district address with “a direct line of sight from his residence to Petitioner’s house.”
While the statements offered by respondent are hearsay, hearsay is admissible in an administrative proceeding such as an appeal pursuant to Education Law §310 (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of Watson, Wyche and Brazley, 56 Ed Dept Rep, Decision No. 17,082; Appeal of Galperin, 51 id., Decision No. 16,297, judgment granted dismissing petition, Sup Ct., Albany Co., August 10, 2012). Any objection to hearsay evidence goes to its relative unreliability and, thus, its weight (Appeal of Tashoff, 50 Ed Dept Rep, Decision No. 16,140). Accordingly, I find that this hearsay evidence further supports respondent’s determination, which is primarily based upon its surveillance evidence.
Respondent’s determination is additionally supported by a utility bill submitted by petitioner for the period August 6, 2018 through November 2, 2018. This bill reflects a $10.00 payment for water usage during this timeframe. According to the registrar, $10.00 is the “absolute minimum charge levied by the City of Saratoga Springs” and is, in her view, “well-below normal water usage for a house the size of [the in-district address] where a family inhabits.” Petitioner has not offered any evidence or allegations to refute the registrar’s representations. Thus, while not dispositive or overwhelming, the utility bill further suggests that petitioner and the students do not reside at the in-district address.
Respondent’s remaining evidence either lacks probative value or has been sufficiently rebutted by petitioner on appeal. First, while respondent alleges that a house cleaner at the out-of-district addresses stated that petitioner “lives” at the out-of-district address and uses the in-district address as a “rental property,” petitioner indicates that she subsequently spoke with the house cleaner, who denied making such statements. Neither party submitted an affidavit from the house cleaner or any other evidence supporting their version of the events.
Second, while respondent attaches probative weight to the fact that a package was sent to petitioner at the out-of-district address, petitioner owns, and admits that she visits, the out-of-district address. Thus, I do not find it relevant that petitioner directed that a single package be delivered to the out-of-district address, for which she owns.
Third, although a bus driver employed by the district had not observed one of the students at the in-district address for months, petitioner explains that she drives the students to school and that they only take the bus on rare occasions. Respondent does not respond to this explanation.
Fourth, while petitioner’s claiming of a School Tax Assessment Relief (“STAR”) exemption on the out-of-district address since 2013 would ordinarily be probative of her residency, petitioner has submitted a copy of an online confirmation form from the Department of Taxation and Finance that indicates that petitioner switched the STAR exemption to the in-district address on February 3, 2015. Petitioner explains on appeal that, when respondent indicated that petitioner’s STAR exemption was associated with the out-of-district address, she “immediately went to Saratoga City Hall” and “[t]he clerk confirmed that at no time did I or anyone else sign to have the STAR exemption revert to” the out-of-district address.
Fifth, respondent attaches significance to the fact that no one was available to sign for a certified letter it sent to the in-district address on February 1, 2019, and that petitioner took several days to pick this letter up at the post office. Respondent has submitted tracking information from the U.S. Postal Service indicating that “No Authorized Recipient [was] Available” on February 1, 2019 to accept the letter. The tracking information indicated that delivery was attempted as 12:11 p.m., and that a “notice” was left at the in-district address. The parties agree that a second notice was left on February 6, 2019, which petitioner indicates is the first notice which she observed. Petitioner then picked up the letter at the post office on February 12, 2019. On this record, there is no evidence as to whether a notice of the letter was initially delivered on February 1, 2019; and petitioner denies receiving such a notice. Moreover, I do not find it relevant that petitioner waited six days to pick this letter up at the post office, two of which were weekend days. Petitioner asserts that she is busy and that the post office is often busy, and respondent has offered no evidence that contradicts these explanations.
In sum, I cannot conclude that respondent’s residency determination was arbitrary, capricious or unreasonable. While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her children’s behalf at any time, should circumstances change, such as the sale of the out-of-district address, and to present any information for respondent’s consideration.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 The parties dispute whether the registrar requested a bill detailing electricity and gas usage or other utilities. I need not resolve this dispute, however, as petitioner has submitted both an electricity and gas bill as well as a utility bill concerning other usages, such as water, and respondent has been afforded an opportunity to respond to this evidence.
 By letter dated February 21, 2019, counsel for respondent indicated that it would permit the students to attend respondent’s schools during the pendency of this appeal.
 The STAR exemption is discussed at further length below.
 I note that the electricity and gas bill, addressed to petitioner at the in-district address, reflects $144.19 of usage for the billing period from December 27, 2018 through January 29, 2019. Unlike the utility bill discussed below, this electricity and gas bill suggests that, at the very least, electricity and gas were activated at the in-district address during this time period.
 Other dates of surveillance were inconclusive or did not yield any probative information concerning the students’ residency; for example, on November 11, 2018, no one was observed at the in-district address and a utility truck was observed at the out-of-district address.
 Petitioner explains in the petition that the out-of-district address “has only one step out the door leading to a flat, fenced-in yard; [the out-of-district address] has five and six steep steps leading to the yard and [the] dog is unable to climb them up or down.”