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Decision No. 18,244

Appeal of GREGORY AND DANIELLE BELLEZZA, on behalf of their child, from action of the Board of Education of the North Babylon Union Free School District regarding residency.

Decision No. 18,244

(February 27, 2023)

Guercio & Guercio LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination of the Board of Education of the North Babylon Union Free School District (“respondent”) that their child (the “student”) is not a district resident and, therefore, not entitled to attend the district’s universal prekindergarten (“UPK”) program.  The appeal must be dismissed.

The student attended respondent’s UPK program during the 2022-2023 school year.  In November 2022, petitioner’s family moved outside of the geographical boundaries of respondent’s district.  They enrolled their older child in the new district but continued to seek the student’s enrollment in respondent’s UPK program.  By letter dated December 8, 2022, respondent notified petitioners that a residency hearing would be held on December 15, 2022.  Following the hearing, respondent determined that the student was not entitled to attend its UPK program because he was not a district resident.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 29, 2022.

Petitioners argue that the student should be allowed to continue attending respondent’s UPK program because the district’s policies do not indicate that residency is a prerequisite for UPK eligibility.  They request that the student be permitted to continue in the UPK program for the 2022-2023 school year.

Respondent contends that the student is not entitled to attend the district’s UPK program because petitioners are not district residents.

Education Law § 3602-e (1) (c) defines “eligible children” for purposes of UPK programs as “resident children who are four years of age….” (emphasis added) (see also 8 NYCRR 151-1.2 [c]; Appeal of C.T., 57 Ed Dept Rep, Decision No. 17,123).  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).

It is undisputed that petitioners and the student relocated to a residence outside of respondent’s district in November 2022.  There is no evidence that this move was temporary or involuntary.[1]  Thus, the student is not a “resident child[]” eligible to attend respondent’s UPK program.  Even though respondent’s policies do not specifically mention UPK, the residency requirement is imposed by statute (Education Law § 3602-e [1] [c]).  Additionally, while not required to do so, respondent provided a flyer and frequently asked questions document to “prospective North Babylon UPK parents” that apprised them of all eligibility requirements, including residency within the district.

To the extent they are not specifically addressed herein, petitioners’ remaining arguments are without merit.




[1] At the residency hearing, petitioners indicated that they own the new residence.