Decision No. 18,172
Appeal of K.D. and C.K., on behalf of their child, from action of the Board of Education of the North Bellmore Union Free School District regarding residency.
Decision No. 18,172
(August 3, 2022)
Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel
ROSA., Commissioner.--Petitioners challenge the determination of the Board of Education of the North Bellmore Union Free School District (“respondent”) that their child (“the student”) is not a district resident and, therefore, not entitled to attend its schools without payment of tuition. The appeal must be dismissed.
In May 2021, petitioners submitted a registration application to the district on behalf of the student. In support thereof, petitioners provided a lease agreement for a home within the district (the “in-district address”) signed by petitioners on May 1, 2021; an affidavit from their landlord dated May 12, 2021 asserting that petitioners and the student resided at the in-district address; an affidavit from petitioner C.K. dated May 12, 2021 indicating that the student resided at the in-district address; cable bills addressed to petitioner K.D.; and petitioner C.K.’s interim driver’s license dated May 12, 2021. Based on this documentation, respondent registered the student as a district resident.
On May 21, 2021, petitioners submitted a preschool bus transportation request form to the district. Petitioners requested that the student be picked up and dropped off at a location outside of the district (the “out-of-district address”).
In fall 2021, respondent indicates that the student told staff on numerous occasions that he lived at the out-of-district address and was transported to the in-district address every morning to take the bus. Respondent thereafter commenced a residency investigation. The residency investigation included surveillance of both the in-district and out-of-district addresses during October and November 2021. On five of the six mornings of surveillance, the investigators observed an adult and the student arrive at the in-district address by car, after which point the student boarded the bus. On several of those occasions, the investigators also observed the adult and student leave the out-of-district address prior to their arrival at the in-district address.
In a letter dated November 12, 2021, respondent informed petitioners that they had reason to believe petitioners did not reside within the district. On November 22, 2021, petitioners met with the district to discuss the student’s residency. According to respondent’s assistant superintendent for business (“assistant superintendent”), petitioners admitted that they lived at the out-of-district address during the meeting.
In a letter to petitioners dated November 23, 2021, respondent determined that the student was not a resident of the district and would be excluded from its schools effective December 3, 2021. This appeal ensued. Petitioners’ request for interim relief was granted on December 3, 2021.
Petitioners contend that they reside at the in-district address but are temporarily absent while renovations are completed at the in-district address. Petitioners maintain that the student and their other child have medical conditions that prohibit them from living at the in-district address until the renovations are completed. Petitioners also contend that they will move back to the in-district address in the “very near future.” Petitioners request a determination that the student is a resident of the district and entitled to attend its schools tuition free.
Respondent contends that petitioners have not demonstrated they ever physically resided at the in-district address. Respondent further argues that petitioners have failed to provide evidence that construction and renovations at the in-district address are ongoing.
First, I must address a procedural issue. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 ). “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 ; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).
Once established, residency is retained until a new permanent residence 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). Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827). Where a petitioner asserts than an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (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).
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 the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).
It is undisputed that petitioners moved into the out-of-district address in June 2021, approximately one month after signing the lease for the in-district address. Although petitioners indicate that they intend to return to the in-district address once renovations are completed, they have produced no evidence in support thereof. Petitioners merely submit the following evidence that identifies the in-district address as their place of residence: (1) a letter addressed to petitioner C.K. from the Nassau County Board of Elections; (2) cable bills addressed to petitioner K.D.; and (3) petitioner C.K.’s driver’s license. However, these documents do not prove that petitioners’ current living arrangement at the out-of-district address is temporary or that they are making efforts to return to the district. In this respect, while not required to do so, petitioners have not submitted any evidence following the commencement of this appeal to demonstrate that construction is continuing or that they have moved into the in-district address. Thus, petitioners have failed to meet their burden of proving that they are merely temporarily absent from respondent’s district (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,922; Appeal of Griffin, 58 id., Decision No. 17,447; Appeal of Tunison, 58 id., Decision No. 17,472).
While the appeal must be dismissed, petitioners retain the right to reapply for admission to the district on the student’s behalf in the future, should circumstances change, and to present any new information or documentation for respondent’s consideration.
In light of this determination, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 The student was absent from school on the one morning that investigators did not observe the student being driven to the in-district address in the morning.
 Specifically, petitioners assert that the student who is the subject of this appeal has “documented breathing issues” while his sibling, who is not school age, has a life-threatening illness and is immunocompromised.
 The surveillance reports support petitioners’ assertion that the in-district address was undergoing construction at the time the student was observed being driven to the in-district address.
 Petitioners also submit medical records for both their children to support their contention that they could not reside at the in-district address until construction was completed.