Appeal of G.R., on behalf of his son N.K., from action of the Board of Education of the Williamsville Central School District regarding residency.

Decision No. 16,681

(October 14, 2014)

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Williamsville Central School District (“respondent”) that his son, N.K., is not a district resident.  The appeal must be dismissed.

During the 2013-2014 school year, N.K. was an eleventh-grade student attending respondent’s South High School.  Prior to enrolling in the district, N.K. attended school within the Starpoint Central School District (“Starpoint”).  Petitioner asserts that he and N.K., together with his wife and two other children, reside in the district at his parents’ house (“Williamsville address”), and have resided there since the fall of 2011, while his house within Starpoint (“Starpoint address”) has been under construction.  Petitioner asserts that N.K.’s mother also resides within Starpoint, but that he has “sole custody.”

According to respondent, on September 30, 2013, N.K. told an assistant principal at his school that his father lives in the Town of Pendleton, which is a municipality within Starpoint.  As a result, respondent commenced a residency investigation, which included retaining a private investigator, who conducted surveillance on seven occasions in October and November 2013. 

According to an affidavit and surveillance records from respondent’s investigator, the investigator observed N.K. and petitioner at the Starpoint address on three occasions, October 22, 25, and 30, 2013, between 6:20 a.m.and 7:45 a.m.[1]  On each of those mornings, he observed petitioner transport N.K. from the Starpoint address to respondent’s South High School.  On one occasion, the investigator observed a woman leaving the Starpoint address at approximately 6:00 a.m.  On the four occasions he observed the Williamsville address, October 15 and November 1, 4, and 6, 2013, between 6:20 a.m. and 8:40 a.m., neither petitioner nor N.K. were observed at all.  However, according to N.K.’s attendance record, N.K. was present at school on those days. 

As part of its investigation, by letter dated November 18, 2013, respondent’s coordinator of student services (“coordinator”) requested proof, by November 26, 2013, that petitioner’s primary residence was within the district. Respondent received a letter from petitioner’s father dated November 26, 2013, indicating that he owns the Williamsville address and that petitioner and N.K. “have been living with [him] for the last three years.”  According to respondent, petitioner’s mother had previously submitted a similar letter, dated February 1, 2012, indicating that “[m]y grandson [N.K.] and son [G.R.] will be living with me” at the Williamsville address.

According to respondent, based on its investigation, it concluded that petitioner and N.K. resided at the Starpoint address and therefore N.K. was not a district resident and would be excluded from attending the district’s schools.[2]  This appeal ensued.  Petitioner’s request for interim relief was denied on December 13, 2013.

Petitioner asserts in his petition that he and N.K. reside with his parents within the district and intend to reside there “at least another 2 years.”  Petitioner requests a determination that N.K. is a district resident and is entitled to attend school tuition-free.

Respondent denies that petitioner and N.K. reside within the district and asserts that petitioner failed to meet his burden of demonstrating a clear legal right to the relief requested and the facts upon which he seeks relief.  Respondent also asserts that petitioner has failed to show that its determination was arbitrary, capricious, or contrary to law.  It maintains that it acted in good faith and pursuant to its powers and duties at all times.

Education Law §3202(1) provides, in pertinent part, as follows:

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).  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).

Where the sole reason the child is residing with someone other than a parent or legal guardian is to take advantage of the schools of the district, the child has not established residence (Appeal of Cheng, 47 Ed Dept Rep 366, Decision No. 15,726; Appeal of Mendoza, 47 id. 285, Decision No. 15,698).

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).

On the record before me, I am unable to conclude that petitioner has met his burden of proof.  According to petitioner, during the summer of 2011, N.K.’s mother, who also resides within Starpoint, “was going through some personal problems” and N.K. moved into the Starpoint address with petitioner, who “ended up getting sole custody.”[3]  Petitioner claims that he and N.K., together with his wife and two other children, have resided within the district at his parents’ Williamsville address since the fall of 2011, the beginning of N.K.’s freshman year, during which he attended school in Starpoint. 

Petitioner asserts that he resides within respondent’s district due to ongoing construction at his Starpoint address, which has resulted in the Starpoint address being uninhabitable “for at least another 2 years.”  He alleges that he purchased the Starpoint address in February 2011 and planned to “rebuild it to a larger home partly because my wife just had a baby and we planned on having more and I wanted [N.K.] to have his own room as well.”  Petitioner claims that, “living in the house with my family is out of the question” because, although “there is a room to sleep if need be, there is not a functioning kitchen” and the house is “completely degutted.”  Petitioner states that he is rebuilding the Starpoint address with his contractor friend, so the project will “take a long time before it is complete.”  In the meantime, his parents have “been gracious enough to allow” petitioner and his family to live with them at the Williamsville address until the Starpoint address is ready.

Petitioner also asserts that, prior to starting his freshman year at Starpoint in the fall of 2011, N.K. “would beg [petitioner] to not have to go back” to Starpoint and “would say the kids were mean and always picked on him.”  Petitioner states that he noticed physical and emotional changes in N.K., and “within the first couple of weeks” of the start of N.K.’s freshman year, N.K. told petitioner that he “was being bullied and would rather die than keep going” to Starpoint.  Petitioner alleges as follows:

We immediately took the necessary action we needed to get our son the help he needed to make sure he was kept safe.  We got him into ... counseling right away and tried to figure out which school we would transfer him to.... We made the decision to enroll him in Williamsville south high school since that was the school closest to my parents’ house.... [N.K.] completely changed once he started Williamsville south.

Petitioner asserts that having to send N.K. back to Starpoint “terrifies” him.  Respondent maintains that petitioner’s own assertions establish that his reason for claiming residency within respondent’s district is his desire that N.K. attend respondent’s schools tuition-free, rather than because of the renovations on the Starpoint residence.  Petitioner explains that, at the time he sought to “transfer” N.K. from Starpoint, he “already had started construction on [the Starpoint residence] and always knew that we would have to stay with my parents while I was going to be demolishing our home.”  I note that, in this case, there is no evidence or allegation that N.K. is living with someone other than his parent in order to take advantage of respondent’s schools; rather, petitioner claims that N.K. resides with him at his parents’ residence.  In this regard, while I note that an individual may not falsify residence to take advantage of district schools, an individual may choose to relocate to a district because of its schools’ good reputation, and the fact that the reputation of the schools may contribute to an individual’s choice of residence does not invalidate that selection (see e.g., Appeal of Lawrence, 36 Ed Dept Rep 374, Decision No. 13,753).

Here, however, regardless of the reason(s) for which petitioner has attempted to establish residency in the district, the record as a whole does not support a finding that he and N.K. are physically present and intend to remain at the Williamsville address and the appeal must be dismissed.

Together with his petition, petitioner submits copies of the November 26, 2013 letter from his father indicating that petitioner and N.K. have been living with him at the Williamsville address for the last three years; a November 21, 2013 letter from the Town of Pendleton Building Department, indicating that petitioner’s permit for alteration on the Starpoint address had expired and that petitioner needed to renew it by November 30, 2013, or obtain a certificate of compliance in order to occupy the residence; a tax bill in petitioner’s name mailed to the Williamsville address; and undated photographs showing construction work on the Starpoint address.  As respondent notes, the letters from petitioner’s parents indicate only that petitioner and N.K. reside with them, and do not account for petitioner’s claim that his wife and other children also reside at the Williamsville address.  The other evidence submitted by petitioner is similarly unavailing.  As discussed above, the mere fact that the tax bill for the house owned by petitioner’s parents is in petitioner’s name, does not necessarily confer residence status (see e.g., Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of Merlino, 48 id. 18, Decision No. 15,779). 

Petitioner’s claim that his family resides at the Williamsville address is also contradicted by respondent’s surveillance and evidence collected during its investigation.  In addition, as noted above, neither petitioner nor N.K. was observed at the Williamsville address on any of the mornings on which the investigator was present.  However, according to N.K.’s attendance record, N.K. attended school on those days.  Instead, petitioner was observed on several occasions transporting N.K. from the Starpoint address to respondent’s South High School.  On one occasion, the investigator observed a woman leaving the Starpoint address at approximately 6:00 a.m., and on another occasion, he observed several lights on and a mounted plasma television playing a cable channel in the living room of the home. These observations are inconsistent with petitioner’s claims that the Starpoint address is “completely degutted,” and consistent with respondent’s determination that petitioner and N.K. reside at the Starpoint address.  In addition, an attorney affidavit submitted with respondent’s answer notes that, not only does petitioner continue to certify that the Starpoint address is his primary address by claiming a New York State school tax relief (“STAR”) exemption, but also that, according to a United States Postal Service certification, petitioner continues to receive mail at the Starpoint address.  Moreover, in light of the evidence to the contrary submitted by respondent, I am not persuaded by the undated photographs of construction on the Starpoint address and correspondence from the Town of Pendleton.

Significantly, petitioner submitted no reply or other evidence to refute or otherwise explain respondent’s evidence.

On this record, petitioner has not carried his burden of establishing his physical presence and intent to remain in respondent’s district.  Accordingly, I will not disturb respondent’s determination that N.K. is not a district resident.

While the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent’s schools on N.K.’s behalf at any time should circumstances change, and to submit any new information or documentary evidence for respondent’s consideration, pursuant to 8 NYCRR §100.2(y).

THE APPEAL IS DISMISSED.

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