Reopening of the appeal of CHARLES JOHNSON, on behalf of his children SHANNON and ERIN, from action of the Board of Education of the Pawling Central School District regarding residency.

Decision No. 15,300

(August 29, 2005)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Pursuant to �276.8(c) of the regulations of the Commissioner of Education, I hereby determine that Decision No. 15,257, dated July 28, 2005, must be reopened in the interests of justice. The original decision to dismiss the appeal, however, remains unchanged.

In the original decision, I stated that petitioner and his children resided in respondent's district until 2002 when their home was sold and they moved outside respondent's district. I further stated that petitioner had over three years to return to the district and had failed to do so. Following the issuance of my decision, respondent 's counsel contacted my Office of Counsel and indicated that petitioner and his family did not move out of the district until 2004 and consequently had nine months to return to the district and failed to do so. Based on further review of the record, I agree that there was a misapprehension of the facts. Accordingly, I will reopen the appeal to consider whether the corrected date warrants a different conclusion.

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365). A person's temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

Based on the record before me, I find that petitioner has failed to present sufficient evidence that his family's move was temporary or that he or his children have maintained ties to the Pawling community. Petitioner has been absent from the district for a significant period of time. He has had the 2004-2005 school year to return to the district and, based on the record before me, has failed to do so. Therefore, I cannot conclude that respondent's determination was arbitrary or capricious. If petitioner and his children do relocate to an address within respondent's district, petitioner may then reapply for their admission.

IT IS ORDERED that Decision No. 15,257 is reopened and modified to the extent indicated above.

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