Appeal of a STUDENT WITH A DISABILITY, by his father, from action of the Board of Education of the Tri-Valley Central School District regarding residency.

Decision No. 16,075

(June 22, 2010)

Whiteman Osterman & Hanna LLP, attorneys for respondent, Beth A. Bourassa, Esq., of counsel

STEINER, Commissioner.--Petitioner challenges the determination of the Board of Education of the Tri-Valley Central School District (“respondent”) that his son is not a district resident.  The appeal must be dismissed.

Petitioner’s son is an 11th grade student (“student”) who attends high school in the Patchogue-Medford Union Free School District (“Patchogue-Medford”).  Petitioner and his wife own a second home in Loch Sheldrake, within respondent’s school district.  On December 7, 2009, the student was involved in an incident while attending school at Patchogue-Medford.  As a result of this incident, the student was suspended for five days and notified of a superintendent’s hearing scheduled for December 15, 2009.

Petitioner withdrew the student from Patchogue-Medford on December 8, 2009 and attempted to enroll him in respondent’s district on December 11, 2009.  By letter dated December 18, 2009, respondent’s superintendent notified petitioner that the student was not entitled to attend the district’s schools because the student was not a district resident.  Petitioner re-enrolled the student at Patchogue-Medford and commenced this appeal.  Petitioner’s request for interim relief was denied on January 22, 2010.

Petitioner asserts that he has paid taxes on the Loch Sheldrake property for over 29 years and he is therefore a district resident.  Petitioner also asserts that the student was denied residency because of his potential suspension at Patchogue-Medford.

Respondent argues that the appeal is moot and that petitioner has failed to meet his burden of proof because he did not establish that he changed his residency from Medford to Loch Sheldrake.

Respondent requests that I consider additional exhibits submitted after its answer was filed.  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 (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  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 (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  In this case, respondent’s attorney submitted an affidavit explaining the difficulty she had obtaining the student’s educational records from Patchogue-Medford.  Respondent did not receive the student’s records until February 26, 2010, when Patchogue-Medford released the documents in response to a ”so ordered” subpoena.  Petitioner does not claim any prejudice as a result of these additional exhibits being added to the record.  Therefore, I have accepted the additional exhibits for consideration.

Respondent also requests that I reject petitioner’s March 3, 2010 supplemental reply because it repeats or expands upon arguments already made by petitioner.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the supplemental reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The re-admission of the student in Patchogue-Medford has eliminated the need to decide this appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Peterson, 46 id. 558, Decision No. 15,595; Appeal of Pollock, 46 id. 553, Decision No. 15,593).  “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 Pollock, 46 Ed Dept Rep 553, Decision No. 15,593; Appeal of Peacock, 46 id. 120, Decision No. 15,460).  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 Speckman, 46 Ed Dept Rep 74, Decision No. 15,444).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Marston and Gunderson, 46 id. 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).  In an appeal to the Commissioner, the 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; Appeals of Marston and Gunderson, 46 Ed Dept Rep 580, Decision No. 15,601; Appeal of Bodden, 46 id. 98, Decision No. 15,452).

As evidence of residency petitioner submits copies of correspondence addressed to him at the Loch Sheldrake address, a property tax bill, utility, insurance and security system bills, a letter from Sullivan County verifying his address for 911 purposes and photocopies of driver’s licenses issued to petitioner and his son on December 23 and 24, 2009 respectively.  Although it is undisputed that petitioner owns a house and property in respondent’s district, the mere fact that one rents or owns a house or property in the district, or even pays taxes in the district, does not necessarily confer residence status (Appeal of Hensley, 46 Ed Dept Rep 187, Decision No. 15,480; Appeal of Cross, 44 id. 58, Decision No. 15,098; Appeal of O’Herron, 41 id. 1, Decision No. 14,591).

Respondent’s superintendent checked the Loch Sheldrake address on nine different occasions throughout January 2010 and found no evidence that anyone was residing at the home, which does not have a garage.  Additionally, there was no evidence that snow was cleared after several inches of snowfall on one of those dates.  Further, during a January 5, 2010 impartial hearing, when questioned why he obtained a new driver’s license with the Loch Sheldrake address on it, petitioner stated that he was beginning his “transition” to the house in Loch Sheldrake, which he expected to live in permanently within two years.

Petitioner has failed to present evidence that he and his son have actually relocated to the Loch Sheldrake residence.  Surveillance of the property and petitioner’s statements at the January 5, 2010 hearing, indicate that he resides in Medford.

Therefore, based on the record before me, I cannot conclude that respondent’s determination was arbitrary or capricious.  If, at some future date, petitioner and his son do relocate to the Loch Sheldrake residence, petitioner may reapply for his son’s admission.

In view of this disposition I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED

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