Decision No. 12,561

(August 9, 1991)

Hiscock & Barclay, Esqs., attorneys for petitioner, Peter F. Stuto, Esq., of counsel

Mary M. Roach, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals on behalf of her three children, from respondent's determination that they are not residents of the Brunswick Central School District (the "district") and therefore, are no longer entitled to attend school there. The appeal must be dismissed.

Petitioner is the mother of Joseph, Phillip and Nicholas Bonfante. All three children have attended school in respondent's district since October 1989. According to the record, petitioner and her children previously resided in the district at 7 Village Drive in the Town of Brunswick. Although the exact date is in dispute, petitioner admits that she vacated the premises in January 1991. According to respondent, sometime after the first of the year, petitioner was observed routinely driving her children to school rather than having them ride the school bus. At approximately the same time, petitioner's automobile was observed routinely parked in a driveway of a house in the Town of Grafton, outside respondent's school district. Sometime thereafter, a resident of that neighborhood and a school friend of petitioner's children made separate reports to respondent raising further questions regarding petitioner's residence. In response, respondent's superintendent requested written confirmation from petitioner of her current address.

By letter dated January 7, 1991, petitioner responded that although she continued to reside at 7 Village Drive, she and her children would be living temporarily with her mother until construction on petitioner's new home was completed. The letter did not provide an address for her mother or for petitioner's new home. The superintendent subsequently met with petitioner who, once again, failed to confirm a specific street address within the district as her residence. By letter dated February 28, 1991, the superintendent offered petitioner another opportunity to submit any documentation she had by March 8, 1991, to support her claim of residence within the district. In particular, the superintendent asked her to provide any evidence, such as electric bills, telephone bills, fuel bills, sworn statements from a third party regarding her residence, or a building permit for her house under construction. When no response was forthcoming, the superintendent informed petitioner by letter dated March 20, 1991 of respondent's determination that she was not a bona fide resident of the district and that her children would be excluded from school beginning April 29, 1991. On April 19, 1991, petitioner initiated this appeal.

Petitioner now contends that she resides with her children in respondent's district at RD1, P.O. Box 441 in Troy, New York and asserts her intent to remain indefinitely at that address. Respondent contends that petitioner relinquished her residence in the district when she vacated her premises at 7 Village Drive.

Education Law '3202(1) limits the obligation of a school district to provide tuition free instruction to pupils who reside there (Matter of Buglione, 14 Ed Dept Rep 220). Section 3202(1) provides in part:

Since the burden of proof regarding residence lies with the party alleging a change, (See, Appeal of Tunstall, 27 Ed Dept Rep 144, 146), the sole issue before me is whether respondent has met its burden to establish that petitioner no longer resides in the district. Residence, for purposes of '3202 of the Education Law, may be established, in part, based upon one's physical presence in the district and the individual's intent to remain (Matter of Whiteman, 24 Ed Dept Rep 337).

The weight of the evidence supports respondent's contention that petitioner and her children are no longer residents of the district. To support its claim, respondent produced affidavits establishing that petitioner vacated her home at 7 Village Drive sometime in December 1990 and that since that time her children are brought to school by petitioner and no longer ride the school bus. Another affidavit submitted by the district, states that petitioner's car is seen regularly parked in the driveway of a house outside the district. Petitioner merely identifies her current residence as a post office box and offers no proof to rebut respondent's evidence. Nor does petitioner provide any documentation to support her position that she and her children continue to reside in respondent's district. Although petitioner's sworn statement that she continues to reside in the district is relevant, it is not determinative (See, Matter of Callahan, 10 Ed Dept Rep 66.) Based on the lack of any documentary evidence to support her claim and her failure to rebut respondent's allegations that she is no longer a resident, I am compelled to dismiss the appeal.

THE APPEAL IS DISMISSED.

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