Decision No. 13,336

(January 24, 1995)

SOBOL, Commissioner.--Petitioners appeal respondent's determination that their son is not a resident of the Niskayuna Central School District ("the district") and, therefore, is not entitled to attend its schools tuition free. The appeal must be dismissed.

Petitioners' son, Steven, was enrolled in the district until the 1994-95 school year. In 1989, petitioners instituted a lawsuit against the Town of Niskayuna concerning the habitability of their Niskayuna home. On January 7, 1991, petitioners moved from their residence in the district to a location in the Schenectady City School District, claiming toxins made their Niskayuna home uninhabitable. On January 8, 1991, petitioners purchased a home within the Schenectady City School District. Respondents allowed Steven to attend school in the district tuition free until the 1994-95 school year, presuming his residence outside the district would be temporary. On June 17, 1994, petitioners failed to attend a residency hearing scheduled by respondents pursuant to 8 NYCRR 100.2(y) concerning Steven's residency. On June 27, 1994 and again on July 28, 1994, respondents informed petitioners that Steven would not be eligible to attend school in the district tuition free for the 1994-95 school year. This appeal followed.

Petitioners assert they are residents of the district and only live outside the district due to the uninhabitability of their home. Petitioners further assert they are only outside the district on a temporary basis and intend to return to their residence within the district. Respondents contend that Steven is not a resident of the district and, therefore, is not entitled to attend their schools tuition free.

Education Law '3202(1) provides:

A child's residence is presumed to be that of his parents (Catlin v. Sobol, 77 NY2d 552; Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Juracka, 31 id. 282; Matter of Forde, 29 id. 359). As the party challenging petitioner's residency, the board of education has the burden of establishing that petitioners do not reside in its district (Appeal of Kind, supra; Appeal of Lenz, 32 Ed Dept Rep 132; Appeal of Bonfante-Ceruti, 31 id. 38).

It is undisputed that Steven lives with petitioners. It is also undisputed that petitioners chose to relocate to a different school district and, in fact, own and reside in a home in the Schenectady City School District. Petitioners also have their automobiles registered at the Schenectady address. Moreover, it is uncontested that petitioners intend to remain at the Schenectady address until resolution of the litigation involving their Niskayuna home. The record reflects there is no trial date set in that litigation and no impending resolution.

Residence is based upon an individual's physical presence within the district and an intention to remain (Appeal of Kind, supra; Appeal of Anthony S., 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, supra). Petitioners have chosen not to live within the district and do not intend to return for an indeterminate amount of time. Accordingly, I find that respondent correctly concluded that Steven does not reside in the Niskayuna Central School District.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its school upon the payment of tuition. Since Steven is not a resident of respondent's district, respondent has the authority to require petitioners to pay tuition as a condition of his enrollment there. To the extent petitioners pay school taxes on property in respondent's district, they are entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).

THE APPEAL IS DISMISSED.

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