Appeal of PAUL G. MADISON, on behalf of his children Taylor P. MADISON, Olivia G. MADISON and Thomas B. Madison, II, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding residency.

Appeal of Charity Mauldin, on behalf of her children Taylor P. MADISON, Olivia G. MADISON and Thomas B. Madison, II, from action of the Board of Education of the Cobleskill-Richmondville Central School District regarding residency.

Decision No. 15370

(March 6, 2006)

Paul G. Madison, Esq., attorney for petitioners

MILLS, Commissioner.--In two separate appeals, petitioners challenge the determination of the Board of Education of the Cobleskill-Richmondville Central School District ("respondent") that their children, Taylor, Olivia and Thomas, are not district residents. Because the appeals involve common issues of law and fact, they are consolidated for decision. The appeals must be sustained in part.

Petitioners are the parents of three school-age children, who have attended respondent's schools for a number of years. Petitioner Madison ("Madison") resides in a home located on Franklin Bellinger Road, Sharon Springs, New York. Petitioner Mauldin ("Mauldin") and the three children allegedly live on St. Route 145, Cobleskill, New York, within respondent's district.

By letter dated August 19, 2005, the director of respondent's Office of Pupil Personnel Services notified petitioners that their children would not be permitted to attend the district's schools on a tuition-free basis because their permanent residence was located in the Sharon Springs Central School District.

On August 26, 2005, Mauldin attempted to register Olivia for third grade at respondent's elementary school and provided school officials with her new apartment address. Because of questions surrounding petitioners' residency in prior years, Mauldin was instructed to provide proof of residency. Mauldin then provided school officials with various documents intended to establish her residency in respondent's district.

By letter dated August 30, 2005, respondent's superintendent of schools notified petitioners of his "Final Determination" that their children would not be entitled to attend the district's schools on a tuition-free basis as residents. Mauldin's appeal ensued. Her request for interim relief was granted on September 14, 2005. Thereafter, Madison commenced a separate appeal.

Petitioners allege that Mauldin and the three children reside within respondent's district. Madison also alleges that the property on which he resides is intersected by the boundary line between respondent's district and the Sharon Springs Central School District and, therefore, in accordance with Education Law �3203, he has the right to choose which district his children will attend. Petitioners request a determination that their children are residents of respondent's district.

Respondent alleges that petitioners have a long history of abusing its residency rules and that Mauldin does not intend to permanently reside within its school district. Respondent also alleges that Mauldin and her children continue to live with Madison whose residence is entirely located within the Sharon Springs Central School District. Respondent alleges that its decision that Mauldin is not a district resident was not arbitrary and capricious. Finally, respondent alleges that Madison lacks standing to request a modification of district lines and that his appeal is premature.

Mauldin submits letters dated September 8, 13 and 14, 2005 in support of her appeal. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR �276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Gehl, et al., 42 id. 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; Appeal of Johnson, 38 id. 524, Decision No. 14,086). Therefore, I have not considered Mauldin's letters to the extent they raise new issues and introduce new exhibits not relevant to the claims originally raised by Mauldin. I have also not considered respondent's letter of September 14, 2005 that addresses the new issues and material.

Turning to the merits, I will, first address Madison's claims. 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 . . . [and] 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.

Madison does not establish that the boundary line between the two districts intersects the dwelling in which he resides or that he is the titled owner of the property on which his residence is located. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Madison has failed to demonstrate his entitlement to designate respondent's district pursuant to Education Law �3203(1) and his claims, therefore, must be dismissed.

Mauldin's claims, however, must be sustained. Education Law �3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

In support of her claim of residency, Mauldin offers a lease agreement dated August 25, 2005 for an apartment in respondent's district, a United States postal service "rural customer delivery instructions " form indicating that mail should be delivered to the in-district apartment, a custody petition dated August 30, 2005 submitted to the Schoharie County Family Court reflecting that Mauldin resides at the in-district apartment and a letter from Niagara Mohawk power company confirming that her service address is East Cobleskill Middleboro Road, Schoharie, New York, effective August 22, 2005.

In support of its position, respondent alleges that Mauldin attempted to circumvent residency rules in the past, that the signature on the lease was not hers, and that an agent of the landlord rather than the landlord himself executed the lease. Respondent offers no documentary or surveillance evidence to support its position.

I do not find respondent's allegations persuasive proof that Mauldin has not established residency within its district. Accordingly, on the record before me, I find that respondent's determination that Mauldin and her children are not district residents to be arbitrary and capricious.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent allow Taylor P. Madison, Olivia G. Madison and Thomas B. Madison, II to attend school in the Cobleskill-Richmondville Central School District without the payment of tuition.

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