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Decision No. 15,297

Appeal of LORALIN and EDWARD FIORETTI, on behalf of their children NICOLE, MARY, CATHERINE, THERESA, BOBBY and PATRICIA FIORETTI, from action of the Board of Education of the Hartford Central School District regarding residency.

Decision No. 15,297

(August 26, 2005)

Judge & Duffy, attorneys for respondent, Monica A. Duffy, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Hartford Central School District ("respondent") that their children may not attend the district's schools. The appeal must be sustained.

Petitioners own four contiguous parcels of land in the Town of Hartford, Washington County, each of which has a separate tax designation. The Washington County tax map shows that two parcels are located in respondent's district and two are located in the Hudson Falls Central School District ("Hudson Falls"). Petitioners' dwelling is located on a Hudson Falls parcel. However, the boundary lines of the school districts intersect petitioners' entire property twice.

By letter dated June 3, 2005, petitioners requested admission for their children to respondent 's schools. By letter dated June 8, 2005, respondent's superintendent denied petitioners' request and informed them that he had contacted Hudson Falls to request that it cede to respondent the parcel on which petitioners' dwelling was located. On June 14, 2005, the Hudson Falls Board of Education denied the superintendent's request.

By letter dated June 24, 2005, respondent's superintendent informed petitioners of Hudson Falls's negative decision, and advised petitioners of their right to appeal his denial of admission to respondent. Petitioners appealed to respondent, who denied their appeal on July 11, 2005. This appeal ensued.

Petitioners seek a determination that they may designate respondent's district as the district of residence for their children, so they can attend school in the district without the payment of tuition.

Respondent requests that the Commissioner grant petitioners' appeal in part and issue an order affirming that petitioners own four contiguous parcels on which their residence is located and through which the boundary lines between Hudson Falls and respondent's district run, that Education Law �3203 applies to this appeal, that petitioners have met the requirements of such section, that petitioners' June 3, 2005 designation is valid and that Hudson Falls shall pay to respondent's district the taxes it collects on petitioners' property.

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

The owner of taxable property that is so located that the boundary line between two school districts intersects (a) the dwelling on said property or (b), in the case of an owner-occupied single family dwelling unit, the property on which the dwelling unit is located may designate the school in either of such districts to which the children lawfully residing in said dwelling on said property shall attend by filing with the district clerk of each of such districts a notice of such designation . . . and, until a subsequent designation shall be made and filed, such children shall be deemed to be resident children of the district designated and shall be entitled to the school privileges of such district as resident pupils without the payment of tuition. (Emphasis added.)

Section 3203(2) further provides:

School taxes on such property shall continue to be levied and collected without reference to the aforesaid designation, but the school authorities of the district that levies and collects a tax upon such property and does not furnish instructional service to the children residing on such property shall pay to the district designated, in which such children are received and instructed, the amount of the tax on such property so levied and collected. If any such district shall fail or refuse on demand to pay the amount of any tax so collected, the school authorities of the district designated and furnishing the instructional service may recover the amount in an action therefor.

Although petitioners acquired the four tax parcels through different deeds, the four parcels are contiguous to each other and the boundary lines between the two districts intersect the property on which petitioners' dwelling is located. Thus, petitioners are clearly entitled to designate the district of attendance. Moreover, the record indicates that petitioners properly and timely designated respondent's district as the district of attendance for their children in accordance with the statute (see Education Law �3203; Crowe, et al. v. MacFarland, et al., 138 AD2d 788; Appeal of the Bd. of Educ. of the Harborfields CSD, 41 Ed Dept Rep 15, Decision No. 14,597). Accordingly, petitioners' appeal must be sustained.

Respondent's request for an order concerning the payment of taxes is premature. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Lombardo, 44 Ed Dept Rep 167, Decision No. 15,135; Appeal of American Quality Beverages, LLC, et al., 42 id. 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643). There is nothing in the record to suggest that Hudson Falls will not continue to collect taxes on the two parcels in its district or refuse to make appropriate payments to respondent' s district in accordance with �3203(2).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Nicole, Mary, Catherine, Theresa, Bobby and Patricia Fioretti to attend school in the Hartford Central School District without the payment of tuition.

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