Appeal of MARIA ALVAREZ, on behalf of her daughter EGAMARIA ALACAM, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 16,661

(September 2, 2014)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Spackenkill Union Free School District (“respondent”) that her daughter, Egamaria, is not a district resident.  The appeal must be dismissed.

The record indicates that in May 2011, Egamaria was admitted to respondent’s district based on a student registration packet which listed an address in Poughkeepsie, New York for her and her parents.  The form also listed an address in Hopewell Junction (“out-of-district address”) as the student’s address at the time of attendance at her last school.

Toward the end of the 2012-2013 school year, questions arose as to whether petitioner was a resident of the district, according to respondent’s superintendent, and respondent contends that its letter of May 28, 2013 requesting proof of residency went unanswered by petitioner.

The record indicates that the superintendent scheduled a residency hearing on August 27, 2013; however, neither petitioner nor her husband appeared.  By letter dated August 27, 2013, the superintendent advised petitioner and her husband that Egamaria would not be allowed to attend school in the district for the 2013-2014 school year.

The record further indicates that a second residency hearing was scheduled for September 11, 2013, at which time petitioner submitted an apartment lease as proof of residency at a different address in Poughkeepsie, within respondent’s district (“in-district address”).  The lease listed petitioner, her husband, and Egamaria as residents and/or occupants for the period of September 2013 through September 2014 and was signed by petitioner and her husband.  The superintendent informed petitioner at the hearing that the district would be conducting further investigation into her residency; however, by letter dated September 13, 2013, respondent permitted Egamaria to continue attending school in the district.  Surveillance of both addresses was then conducted, including video, over a period of months, initially consisting of four days in September 2013 (September 18, 24-25, and 27), two days in October 2013 (October 21-22), and three days in November 2013 (November 10-11 and 13).

The investigator reported that petitioner has two cars registered in her name and that her husband has one car registered in his name.  While the investigator observed one of petitioner’s cars at the in-district apartment during the evening of September 18 and the morning of September 24, and one of petitioner’s cars and her husband’s car on the morning of September 25, the lights appeared to be off and there was no activity observed at the apartment on any of those three occasions.  After observing no cars or activity at the in-district apartment on October 21 and 22 and November 10, 2013, the investigator also affixed a note requesting a telephone call to the door of the in-district apartment at approximately 7:30 a.m. on November 11, 2013.  During surveillance later that morning and at 6:00 a.m. and 9:50 a.m. on November 13, 2013, the note remained on the door.  In addition, the investigator observed the out-of-district residence, where he observed the lights on and petitioner’s and/or her husband’s cars present at various times of the day and night on September 27, October 21, November 10 (a Sunday), and November 11, 2013.

The superintendent found that the surveillance was insufficient to make a new determination because Egamaria had not been seen traveling from the out-of-district address to school in the morning, and scheduled a third residency hearing for December 9, 2013, at which time petitioner submitted pictures of the interior of the in-district apartment as evidence of residency, according to the record.  Respondent states that petitioner did not submit any utility bills, affidavits, letters or other documentation to prove residency at that time.  However, again finding insufficient proof that petitioner was not residing in the district, by letter dated December 11, 2013, respondent notified petitioner that her daughter could remain in the district.

Respondent then conducted three additional days of surveillance - January 21, 2014 and February 3 and 10, 2014.  The out-of-district residence was observed during the early morning hours of January 21, February 3 and 10, 2014.  On January 21 and February 10, petitioner’s husband was observed leaving the out-of-district residence (once in petitioner’s car and once in his car) and driving Egamaria to school before returning to the out-of-district residence.  On the morning of February 3, two of the family’s cars were observed at the out-of-district residence and no vehicles were observed at the in-district apartment.  A fourth residency hearing was conducted on March 10, 2014, at which time respondent states that petitioner submitted video of the student doing homework at a table in the in-district apartment.  Again, respondent contends that petitioner did not submit any utility bills, affidavits, letters or other documentation to prove residency in the district.

By letter dated March 10, 2014, respondent informed petitioner and her husband of the determination that Egamaria was not a district resident and that she would be excluded from respondent’s schools after April 4, 2014.  Among the facts cited by respondent as the basis for its determination were that both petitioner and her husband listed the out-of-district address for purposes of their driver’s licenses, vehicle registrations, and voter registrations; petitioner and her husband admitted to owning the out-of-district address and filed for and received a STAR exemption from 2006 through 2014 (which is only granted on a person’s primary residence) on the out-of district address (petitioner denies this); respondent had not received returned mail from the out-of-district address; and although petitioner and her husband operate a business in the district, that does not give their daughter the right to attend school in the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on April 4, 2014.

Petitioner asserts that she and her husband are separated (although not legally) and trying to save their marriage but believe it is a private matter.  Petitioner states that she and her husband agreed to allow Egamaria to primarily live with petitioner and that Egamaria stays with her father at the out-of-district address, where he resides, two days a week and “sometimes more if there is no school.”  Petitioner states that she and Egamaria’s father opened a restaurant in Poughkeepsie in 2005 which is “the main source of income for the family.”  Petitioner states that the business grew requiring long and late hours and by 2011 “we felt the need to have a residence close to the business” so she and Egamaria moved to Poughkeepsie, initially living at one address and then moving to their current address in September 2013 “which is even closer to the business.”

In support of her petition, petitioner submits the following evidence: (1) a copy of a lease for the in-district address listing petitioner, her husband, and Egamaria as residents and/or occupants and signed by petitioner and her husband in September 2013; (2) a letter dated March 21, 2014 from an accounting firm stating that they are preparing petitioner’s and her husband’s 2013 tax return using their “current” in-district address; (3) petitioner’s car insurance identification cards listing the in-district address, dated March 21, 2014; (4) an interim New York State driver’s license for petitioner and interim permit for her daughter listing the in-district address, each dated March 24, 2014; (5) a gas and electric bill in petitioner’s name, for the period of October 29, 2013 through January 2, 2014, for the in-district address; (6) a bill for television in petitioner’s name, for the period of March 23, 2014 through April 22, 2014, for the in-district address; (7) a copy of a renter’s insurance policy in petitioner’s name, for the period of September 10, 2013 through September 10, 2014, for the in-district address; (8) a receipt for 2014 property taxes in petitioner’s name, for the out-of-district address for the period of January 1, 2014 through December 31, 2014; (9) various letters of reference dated either March 20 or 22, 2014; some of which refer to petitioner, her husband and their daughter living at the in-district address; and (10) a letter and statement showing the amount of school taxes owed on petitioner’s and her husband’s business for the period of July 1, 2013 through June 30, 2014.

While the record indicates that petitioner is the primary owner of the out-of-district home, petitioner contends that she resides with her daughter at the in-district address.  Petitioner asks that I overturn respondent’s decision that Egamaria is not a district resident and that Egamaria be permitted to attend school in the district without payment of tuition.

Respondent contends that Egamaria is not a resident of the district and therefore is not entitled to attend school in the district on a tuition-free basis.  Respondent argues that the petition should be dismissed as petitioner failed to prove physical presence and to demonstrate intent to remain in the district.  Respondent also claims that following the receipt of its March 10, 2014 letter excluding Egamaria from the district, petitioner stated that her daughter would promise to live at the in-district address until graduation in 2015 if she were allowed to continue to go to school in the district; implying that Egamaria did not, in fact, live at the in-district address.

Respondent also contends that the district was not presented with information included in the petition (such as petitioner’s car insurance identification cards, petitioner’s interim driver’s license, and Egamaria’s interim permit) before it made its residency determination on March 10, 2014.  Respondent further asserts that other documentation included in the petition was dated after its final residency determination, including the letter from the accounting firm stating that they are preparing tax returns for petitioner and her husband using the in-district address and the reference letters from individuals stating that petitioner and her daughter reside in the district.  Although this evidence was not previously considered, respondent has had ample opportunity to address it in its answer and, thus, I have considered the documents (see Appeal of Landon, 49 Ed Dept Rep 23, Decision No. 15,948).

By letter dated August 14, 2014, respondent requested permission to submit a supplemental affidavit and exhibit from respondent’s district clerk pursuant to §276.5 of the Commissioner’s regulations.  The affidavit  describes a telephone conversation on August 7, 2014 between Egamaria and respondent’s high school principal’s secretary and field hockey coach during which, it is asserted, Egamaria said that she moved out of the in-district apartment and back to the out-of-district address and was no longer a district resident.  In her affidavit, the district clerk further states that she contacted an employee of the apartment complex who informed her that petitioner moved out of her apartment and no longer resides there.  No written response has been received from petitioner.  Since the events described in respondent’s supplemental affidavit occurred after the submission of its answer and are directly related to the issue in this appeal, I have accepted it pursuant to §276.5 (see Appeal of J.F., 42 Ed Dept Rep 136, Decision No. 14,800).

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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927; Appeal of Naab, 48 id. 484, Decision No. 15,924).  “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 Naab, 48 Ed Dept Rep 484, Decision No. 15,924).  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 Polynice, 48 Ed Dept Rep 490, Decision No. 15,927).

Where a child’s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children’s Aid Society v. Hendrickson, et al., 54 Misc. 337 affd, 196 NY 551; Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288).  In cases where parents have joint custody, the child’s time is "essentially divided" between two households, and both parents assume responsibility for the child, the decision regarding the child’s residency lies ultimately with the family (Appeal of T.P., 45 Ed Dept Rep 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Seger, 42 id. 266, Decision No. 14,849).  However, when parents claim joint custody but do not produce proof of the child’s time being divided between both households, residency is to be determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Rousseau, 45 Ed Dept Rep 567, Decision No. 15,418; Appeal of Franklin-Boyd and Graham, 45 id. 33, Decision No. 15,251).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).  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 Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Stewart, 46 id. 92, Decision No. 15,450).  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 Lin, 48 Ed Dept Rep 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456; Appeal of Stewart, 46 id. 92, Decision No. 15,450).

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 White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).  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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

As noted above, in support of her residency, petitioner submits a number of documents listing her address as the in-district address, such as an apartment lease, an insurance identification card, an interim driver’s license, bills for utilities and television, and a renter’s insurance policy.  I note, however, that none of the documents submitted by petitioner appear to have originated prior to respondent’s May 2013 letter requesting proof of residency and many of the documents also post-date respondent’s March 10, 2014 residency determination (see e.g. Appeal of Friedman, 50 Ed Dept Rep, Decision No. 16,173).

Respondent’s evidence includes 12 days of surveillance occurring over a period of several months in which Egamaria was observed being driven to school by her father from the out-of-district address on two occasions, as well as documentation showing use of the out-of-district address for purposes of petitioner and her husband’s driver’s licenses, vehicle registrations, and voter registrations.  Respondent also submits additional documentary information that petitioner and her husband use the out-of-district address on their mobile phone bills and shows that petitioner is the primary owner of the out-of-district address for which she currently receives a STAR exemption, as she has since 2006.

Although, in the petition, petitioner attempts to refute respondent’s surveillance evidence, I find such attempts unavailing.  Petitioner asserts that the investigator only observed Egamaria being driven to school from the out-of-district address by her father twice – once on January 21, 2014 and then once again, almost 3 weeks later, on February 10, 2014 when Egamaria “was staying with her father for her weekly visits.”  Petitioner also states that she finds many inconsistencies with respondent’s investigation and conclusions, and includes a notarized statement in the petition from an individual (who does not state in what capacity she is opining) who makes a number of observations regarding the video surveillance footage.   The statement contends that “[t]here is no evidence showing Egamaria exiting the [out-of-district] residence [in the morning]” and that most of the surveillance occurred during the hours in which Egamaria was already in class or on school premises.  In particular, where respondent’s video footage shows students boarding the bus to school in the morning at the in-district address, and the investigator’s notes state that Egamaria was not among them, the statement notes that “the students documented at 7:20 a.m. are [m]iddle [s]chool students” for whom “the bus arrives at 7:24 a.m.” while the “bus usually arrives for [h]igh [s]chool students around 6:55 a.m.” and the “first [b]ell for [the high school] sounds at 7:25 a.m.”  However, contrary to such assertions, the record indicates that respondent’s surveillance at the in-district apartment on such occasions began at 6:00 a.m. - prior to the start of the school day - yet Egamaria was never observed boarding an earlier school bus.

In addition, I find the evidence presented by petitioner that she and her daughter reside at the in-district address as a result of the separation of petitioner and her husband to be at odds with other evidence in the record, including petitioner’s own statements.  For example, while petitioner avers that she and her husband are separated, the lease (for the period September 2013 through September 2014) offered as evidence that she and her daughter reside at the in-district address, lists her husband as a resident as well.  The photos submitted by petitioner as evidence of residency at the in-district apartment appear to show petitioner’s husband living in the apartment.  Also, three of the letters of reference submitted by petitioner indicate that petitioner, her husband and their daughter all reside at the in-district address.

I also find petitioner’s statements that “by 2011 we felt the need to have a residence close to the business” so “my daughter and I moved [into the district]” and “[i]n September of 2013 we moved to [their current in-district address] which is even closer to the business” to be inconsistent with petitioner’s explanation of her separation from her husband, as well as with other statements made by petitioner.  While petitioner attempts to refute respondent’s surveillance evidence in her petition, as described above, she submits no reply or other evidence to explain these inconsistencies.

Moreover, while petitioner denies that she applied for a STAR exemption for the out-of-district property, citing as evidence a “Receipt for 2014 – Statement of Taxes” which shows no STAR savings, the statement does not reflect a tax levy for school taxes, but only for county, town, fire district and library taxes.  The School Tax Relief (“STAR”) exemption only applies to school taxes and is only available on the “primary residence” of one or more of the owners (Real Property Tax Law §425[3]).  Thus, this statement does not support petitioner’s contention that she does not have a STAR exemption on the out-of-district address, particularly in light of respondent’s documentation from database and tax roll inquiries showing 2014 property information listing the basic STAR exemption amount associated with the out-of-district address and the initial year in which the exemption was obtained (2006).

While the record indicates that petitioner leased an apartment in the district for which she has established certain utilities, she has not met her burden of establishing physical presence and intent to remain there permanently (see Appeal of Friedman, 50 Ed Dept Rep, Decision No. 16,173).  As noted, Egamaria was twice observed by an investigator at the out-of-district address in the morning, being driven to school by her father, and was never seen at the in-district address despite surveillance on 10 separate days, usually occurring on weekdays during the early morning hours.  I find that, even though respondent’s surveillance evidence is not overwhelming, petitioner has not carried her burden.  Petitioner owns and pays taxes on the out-of-district residence and has not established that she has abandoned the out-of-district residence.  Indeed, the additional papers submitted by respondent, to which petitioner did not reply, indicate that she may no longer even be leasing an apartment at the in-district address.  Based on the totality of the record before me, including statements made to respondent by petitioner and her daughter, I cannot conclude that respondent’s determination was arbitrary or capricious under the circumstances presented in this appeal.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on her daughter’s behalf at any time, and to present any information bearing on her daughter’s residency for respondent’s consideration.

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

THE APPEAL IS DISMISSED.

END OF FILE