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Decision No. 18,125

Appeal of MICHELLE and SEAN KILEY, from action of the Board of Education of the Hempstead Union Free School District, West Hempstead Union Free School District, and Nassau County Board of Cooperative Educational Services regarding payment of taxes.

Decision No. 18,125

(May 23, 2022)

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., attorneys for petitioners, Martin E. Valk, Esq., of counsel

Guercio & Guercio, attorneys for respondent Hempstead Union Free School District, Christopher W. Shishko, Esq., of counsel

Guercio & Guercio, attorneys for respondent West Hempstead Union Free School District, Christopher F. Mestecky, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent Nassau County Board of Cooperative Educational Services, John H. Gross, Esq., of counsel

ROSA., Commissioner.--Petitioners[1] appeal from a determination of the district superintendent of respondent Nassau County Board of Cooperative Educational Services (“Nassau BOCES”) regarding the district that assesses school taxes for their property.  The appeal must be dismissed.

Petitioners’ residence sits on land bisected by the school district boundary line between the Hempstead Union Free School District (“Hempstead”) and the West Hempstead Union Free School District (“West Hempstead”).  At all times, Hempstead has been responsible for levying and collecting a tax upon the property.  In 2015, petitioners designated West Hempstead as the district that would provide educational services for their property. 

By letter dated July 9, 2020, petitioners wrote to Hempstead, West Hempstead, and Nassau BOCES, requesting that they designate petitioners’ residence “part of” West Hempstead.  Petitioners identified several neighboring properties that paid school taxes to West Hempstead instead of Hempstead.  Petitioners asked that their request be placed on the agendas for both school districts’ August 2020 board meetings.  Petitioners asserted that they copied Nassau BOCES on the correspondence because it had “the authority to grant this request or conduct a hearing on this issue.”

By letter dated August 25, 2020, Nassau BOCES wrote to Hempstead and West Hempstead to inquire whether their respective boards would be considering petitioners’ request to alter the school district boundary.  A copy of this letter was sent to petitioners.  Petitioners replied, clarifying that they did not seek to alter the school district boundary but merely wanted to shift the responsibility for levying and collecting taxes to West Hempstead.  Petitioners further requested that Hempstead “notify the Hempstead Town Receiver of Taxes that [petitioners] should be taxed as part of the West Hempstead UFSD.”

At its August 2020 board meeting, Hempstead denied petitioners’ “request to change the boundary line” of their property.  There is no indication in the record that West Hempstead took any action in response to petitioners’ request.

By letter to petitioners dated September 29, 2020, the District Superintendent of Nassau BOCES indicated that he had “no authority to implement your request that [Hempstead] notify the Hempstead Town Receiver of Taxes to tax your property as part of [West Hempstead].”  This appeal ensued.

Petitioners argue that their designation of West Hempstead as their children’s district of attendance should have shifted the authority to levy and collect taxes accordingly.  Petitioners request an order designating West Hempstead as the “proper” school district for their property and ask that I set aside any determination of Hempstead to the contrary.  Petitioners also argue that I should require West Hempstead to levy the appropriate school taxes against their property.

Respondents argue that the appeal is untimely; that petitioners fail to state a claim because Education Law § 3203 does not authorize the relief sought; and that any remedy arises under the Real Property Tax Law and must be pursued in another forum.

Education Law § 3203 (1) gives owners of a dwelling on taxable property intersected by a school district boundary line the right to designate the school district that children residing in the dwelling shall attend.  Upon such designation, “[s]chool taxes on such property shall continue to be levied and collected without reference to the aforesaid designation...” (Education Law § 3203 [2]).  If the district that levies and collects the tax is not providing instruction, it is required to collect and remit “the amount of the tax on such property so levied and collected” to the district providing instruction (Education Law § 3203 [2]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

While petitioners would prefer that West Hempstead assess the school taxes for their property, Education Law § 3203 (2) explicitly states that a designation of attendance under that section has no effect on the manner in which school taxes are levied and collected.  Petitioners do not cite any provision of the Education Law to the contrary.  Thus, their argument amounts to a challenge to the plain language of Education Law § 3203, a statute which I have no authority to disregard (see Appeal of Treacy, 61 Ed Dept Rep, Decision No. 18,038).

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




[1] For ease of reference, the term “petitioners” is used to refer to the actions of one or both petitioners.