Appeal of THERESA GUTIERREZ, on behalf of her children BRANDON, ABIGAIL, ANDREW and DAVID, from action of the Board of Education of the Onteora Central School District regarding residency.

Decision No. 15,487

(November 21, 2006)

Donoghue, Thomas, Auslander & Drohan, L.L.P., attorneys for respondent, Daniel Petigrow, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Onteora Central School District (“respondent”) that her four children are not district residents.  The appeal must be dismissed.

Petitioner’s children began attending respondent’s schools in 1999.  At that time, respondent informed petitioner that her residence on Basin Road, West Hurley, was located within the school district.

During the 2005-2006 school year, respondent discovered that its earlier determination regarding petitioner’s residence was erroneous and that the Basin Road address was actually located within the City School District of the City of Kingston.  As a result, respondent’s residency officer scheduled a residency hearing.

At the February 6, 2006 hearing, petitioner stated that she lived on State Route 28, within respondent’s district.  However, petitioner indicated that her residence at this address might not continue beyond the end of the 2005-2006 school year.  By letter dated February 10, 2006, the residency officer informed petitioner that she had established residency but requested that petitioner notify the district if her residence changed.

On July 28, 2006, the residency officer held another hearing to determine petitioner’s residency.  At that hearing, petitioner stated that she lived on Basin Road, not on State Route 28.  Based on this information, by letter dated July 31, 2006, the residency officer notified petitioner that her children were not entitled to attend respondent’s schools tuition free.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 8, 2006.

Petitioner claims that she enrolled her children in respondent’s schools in reliance on respondent’s erroneous statement that her Basin Road residence was within its school district.  She asks that her four children be allowed to continue attending respondent’s schools without the payment of tuition.  Respondent maintains that petitioner has not established residency within its district.

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).  It is undisputed that petitioner and her children currently reside on Basin Road, outside respondent’s school district.  Although petitioner claims to have rented a residence within the district, there is no evidence that she intends to live there.  By her own admission, petitioner leased this residence solely so that her children could take advantage of respondent’s schools.  This arrangement does not establish residency in respondent’s district.

Further, while respondent’s mistake as to the actual school district in which petitioner’s residence was located is unfortunate, it does not bar respondent from later refusing to admit the children.  Except in limited circumstances not applicable here, equitable estoppel does not apply against a governmental subdivision (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Araneo, 45 Ed Dept Rep 325, Decision No. 15,336).  A mistake by a school district representing that a certain property is located within the district does not vest any legal right in such students to attend on a tuition-free basis (Appeal of Prospero, 37 Ed Dept Rep 62, Decision No. 13,804). 

THE APPEAL IS DISMISSED.

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