Decision No. 14,144

(June 17, 1999)

MILLS, Commissioner.--Petitioner, the Board of Education of the Syosset Central School District ("Syosset"), seeks an order from the Commissioner directing respondent, the Board of Education of the Oyster Bay-East Norwich Central School District ("Oyster Bay"), to turn over tax monies levied and collected with regard to property intersected by the boundary line of the two school districts. The appeal must be sustained.

The facts in this appeal are not in dispute. On April 15, 1996 Joseph and Karen Albala ("the Albalas") notified Syosset and Oyster Bay that they contracted to purchase a home at 1784 Route 106, Muttontown, New York, also referred to as Nassau County Tax Map, Section 25, Block 58, Lots 53, 55A and 55B. This property is located in both the Syosset and Oyster Bay school districts.

By letter dated April 15, 1996 the Albalas notified petitioner and respondent that their property was located in both school districts, and they were designating Syosset as their children’s school district pursuant to Education Law "3203(1). Neither party disputes that this designation was appropriate. However, in the April 15^th letter the Albalas also notified the districts that their children would be attending a private school in the area, Friends Academy. In designating Syosset as their children’s district, they requested that Syosset provide busing for the children to Friends Academy.

Syosset transported the Albala children to Friends Academy, provided textbooks for them and paid its proportionate share of health services rendered by Friends Academy on their behalf. For the 1996-97 school year the Albalas paid taxes of $28,385.87 to Oyster Bay. Pursuant to Education Law "3203(2) petitioner demanded that respondent turn over this tax money paid to it by the Albalas.

Respondent has refused to turn over the tax monies to petitioner. Petitioner now seeks an order directing respondent to turn over the tax monies, $28,385.87, plus interest, as well as to direct respondent to turn over any future school taxes levied and collected on the Albalas' property, unless there is a change in designation pursuant to "3203(1). Both parties agreed to submit this matter to me for determination.

Petitioner contends that, while it does not provide direct instructional services to the Albala children, it provides transportation services, textbooks, and pays the proportionate share of health services rendered by Friends Academy on its behalf. Furthermore, any special education and related services which could be required to be provided to the Albala children in the future would be furnished by petitioner pursuant to the existing "3203 designation. Therefore, petitioner maintains it is entitled to the tax monies collected on the Albalas' property.

Respondent contends that the right to designate which public school one's children attend under Education Law "3203(1) was not intended to apply to the benefit of children who attend private or parochial schools rather than public schools. Respondent notes that the law directs the collecting district, which does not furnish instructional services to the children, to pay the collected taxes to the district designated, "in which such children are received and instructed" (emphasis added). Thus respondent contends that as the Albalas' children are not receiving any instructional services from petitioner, it does not have to pay the tax collected to Syosset. Oyster Bay contends that the mere provision of bus service is not sufficient to meet the statutory requirement of "instructional services."

Respondent further maintains that the statute was never intended to provide a windfall, such as in this case, where the children attend private school. Oyster Bay points out that the Albalas' property is actually located on three lots, two of which are located in Oyster Bay. The Syosset property is an extremely small lot for which the Albalas pay only $54.09 in school taxes to Syosset. Respondent has offered to either transport the Albala children, or to reimburse petitioner for the actual cost of transportation to Friends Academy.

Education Law "3203(1) provides in pertinent part:

Section 3203(2) further provides:

As respondent points out, the parcel of property located in the Syosset district is extremely small. However, under the case law interpreting this statute the size of the parcel is not determinative. In Crowe, et al. v. MacFarland, et al., 138 AD 2d 788 (3^rd Dept, 1988), the court held that a property owner who acquired a 0.1-acre parcel to add to his 4-acre parcel met the statutory requirements of "3203, where the only portion of his property intersected by a school district boundary was the 0.1 acre parcel. Thus the designation by the Albalas of Syosset was permissible under "3203, and the size of the property within the designated district is not relevant to this inquiry.

The central issue in this appeal is whether the provisions of "3203 apply when a property owner elects to send his children to private school. I have previously considered the provision of services pursuant to a "3203 designation in Appeal of a Student with a Disability, 37 Ed Dept Rep 166. In that appeal, the petitioner designated a district pursuant to "3203, and enrolled her child in a nonpublic school. The designated district refused to provide transportation or other educational services because the child was not enrolled in or attending the schools of that district. In reaching my decision, I analyzed the statutory language, legislative history and purpose of "3203. I specifically rejected the argument that the statute only serves to identify a district of attendance and not the right to specific educational services. I held that, "the statute functions to determine a student’s residence where that residence is not clear" (emphasis added) (Appeal of a Student with a Disability, supra at 171). Accordingly, I stated:

Given my holding in the above-cited decision, I find that the Albalas' designation of Syosset confers residency in that district to their children for all purposes. Thus, it obligates Syosset to provide all educational services required for resident students attending nonpublic schools, including transportation and any necessary special education services. It concurrently obligates Oyster-Bay to pay over any tax monies it collects on the property to Syosset. In reaching this determination, I reject respondent's argument that the designation results in a windfall to petitioner. As previously explained, the size of the parcel in the designated district is irrelevant (Crowe, et al. v. MacFarland, et al., supra). Since I have determined that petitioner Syosset is the Albalas designated district of residence and is required to provide all educational services, and since respondent Oyster Bay has collected and received the taxes paid by the Albalas, I hereby order respondent Oyster Bay to pay over to petitioner Syosset any taxes received from the Albalas for the 1996-97 school year.

It is my understanding that the Nassau County Department of Assessment has changed their assessment records so that Syosset is now the district levying and collecting school taxes on the Albalas' property. This being the case, it is not necessary for me to order future taxes collected by Oyster Bay to be turned over to Syosset, absent a change in designation.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Oyster Bay-East Norwich Central School District pay school taxes to the Syosset Central School District for property owned at 1784, Route 106, Muttontown, NY, in the amount of $28,385.87, plus interest, for the 1996-97 school year.

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