Appeal of YE ZHANG and WEI XUE, on behalf of their daughter ELVA ZHANG, from action of the Board of Education of the Jericho Union Free School District regarding residency.

Decision No. 16,733

(April 2, 2015)

Seres & Schwartz, attorneys for petitioners, Paul Seres, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Kerrin A. Bowers, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Jericho Union Free School District (“respondent”) that their daughter, Elva, is not a district resident.  The appeal must be dismissed.

According to petitioners, they purchased a residence located in the district in January 2012.  Petitioners completed a registration application for Elva on June 8, 2012 indicating that she would be moving to the in-district residence on August 10, 2012.  Elva was enrolled in Jericho High School and began attending in September 2012.

In December 2013[1], Elva’s guidance counselor expressed concerns to the district’s assistant superintendent for educational operations and human resources (“assistant superintendent”) that Elva was not residing at the in-district address because mail sent to that address had been returned to the district marked “unclaimed” and “unable to forward.”  Additionally, the guidance counselor reported to the assistant superintendent that the student used an out-of-district address on her SAT application and, when questioned, the student stated that she and her family reside at that address and expected to move to the in-district address by her junior year (the student was a sophomore at that time).

Respondent subsequently began a residency investigation which included a visit by the assistant superintendent to the in-district address in January 2014.   The assistant superintendent avers that the “property only contained a foundation of a house with a few studs, thus, there was no habitable house on the property in which the student could reside.”  The assistant superintendent also avers that he photographed the property and obtained a satellite photograph which confirmed that the residence was under construction.  By letter dated January 7, 2014, the assistant superintendent notified petitioners that respondent had reason to believe that petitioners did not reside in the district and, as a result, asked petitioners to immediately withdraw Elva from respondent’s schools.

On January 29, 2014, petitioners met with the assistant superintendent concerning his January 7, 2014 letter and Elva’s residency status.  The record indicates that, at the meeting, petitioners failed to deny that they did not reside at the in-district address.  The record also indicates that petitioners reported that they owned a house outside the district in Syosset (which had been independently confirmed by respondent prior to the meeting), as well as the in-district property in Jericho.  Respondent states that, during this meeting, petitioners claimed to have informed the district during the June 2012 registration process that the in-district house needed repairs and they could not move in right away.  However, respondent disputes this claim.

By letter dated January 31, 2014, the assistant superintendent notified petitioners that, based on the information obtained at the January 29, 2014 meeting and the district’s residency investigation, respondent determined that Elva was not a resident of the district and was no longer a student in the district.  This appeal ensued.  Petitioners’ request for interim relief was denied on February 24, 2014.

Petitioners assert that they own and are domiciled at the in-district residence, and include a copy of their deed evidencing ownership of the residence in support of their petition.  Petitioners further assert that, subsequent to purchasing the in-district residence, they were advised that construction was required and that such construction was scheduled to be completed no later than the summer of 2012.  However, petitioners contend that construction on the in-district residence was substantially delayed, first due to circumstances beyond their control involving building permits and construction and then by damage caused by Hurricane Sandy.  Petitioners state that these problems caused their family to maintain their previous residence outside the district and that the only reason they are not residing full-time at the in-district residence is due to its inhabitability.  Petitioners request a determination that their daughter is a resident of the district and is entitled to attend school without the payment of tuition.  Petitioners also contend that respondent’s January 31, 2014 letter excluding Elva from district schools was a “unilateral action ... taken without the opportunity for a fact finding hearing and does not contain the procedural safeguards required by the Education Law.”

Respondent contends that petitioners indicated that they would be moving to the in-district residence in the summer of 2012, and that at no time during the June 2012 registration process did petitioners convey that the in-district residence needed repairs or that they could not move into the home right away, nor did petitioners report to the district at any time that the in-district house was being rebuilt or that petitioners maintained their out-of-district residence.  Significantly, respondent also notes that petitioners stated at the January 29, 2014 meeting that their son was attending the 4^th grade in the Syosset School District but had not indicated this to respondents during the June 2012 registration process.  Respondent contends that petitioners have not established that Elva permanently resides in the district, that the district’s determination was neither arbitrary nor capricious, and that the appeal should be dismissed in its entirety.  Respondent also contends that petitioners were not entitled to a fact-finding hearing with regard to the district’s January 31, 2014 residency determination.

I will first address a procedural issue. Section 100.2(y) of the Commissioner’s regulations sets forth the procedures that a district must follow in determining whether a child is entitled to attend its schools.  This provision requires that prior to making a determination, the board or its designee must provide the child’s parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child’s right to attend school in the district.  It also requires the board or its designee to give such person written notice of the determination that the child is not a district resident, including the basis for the determination, the date the child will be excluded, and a statement regarding the right to appeal the determination to the Commissioner (8 NYCRR §100.2[y]; Appeal of Clark, 46 Ed Dept Rep 143, Decision No. 15,468; Appeal of Jones and Belasse, 46 id. 24, Decision No. 15,430).  The regulation does not require a formal hearing or representation by counsel (Appeal of Jones and Belasse, 46 Ed Dept Rep 24, Decision No. 15,430).

Although petitioners were not entitled to a formal fact-finding hearing, the record in this matter nevertheless reflects that respondent failed to comply with §100.2(y) of the Commissioner’s regulations by failing to include a statement in its written notice to petitioners regarding their right to appeal the residency determination to the Commissioner.  Accordingly, I find that the district violated the requirements of §100.2(y) and admonish respondent to comply henceforth with the procedures established therein (see Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673; Appeal of Steiner, 33 id. 420, Decision No. 13,099).  However, I find that petitioners had an opportunity to submit information regarding Elva’s right to attend school in the district at their January 29, 2014 meeting with the assistant superintendent prior to respondent’s determination.  As I find that petitioners were not deprived of the opportunity to appeal respondent’s determination to me, and they have had an opportunity to present evidence here in support of Elva’s residency claim, I will address the merits of petitioners’ appeal (see e.g., Appeal of D.P., 54 Ed Dept Rep, Decision No. 16,673; Appeal of Butler and Dunham, 50 id., Decision No. 16,103; Appeal of Striano, 47 id. 137, Decision No. 15,651).

Turning to the merits, 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).  Pending home construction does not, in and of itself, establish residency (Appeal of Jankovic, 46 Ed Dept Rep 441, Decision No. 15,558; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

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).

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 find that petitioners have failed to meet their burden of proving that Elva resides in respondent’s district.  Petitioners ask that Elva be allowed to continue in the school district “where we own our home, pay taxes and will permanently reside as soon as it is habitable, for the entirety of her [h]igh [s]chool education.”  The deed evidencing ownership of the in-district residence submitted in support of their petition is insufficient to establish residency.  As noted above, the mere fact that one owns a house or property in the district, pays taxes, or has pending home construction in the district, is not sufficient to confer residence status.

Aside from the deed and their conclusory statements, petitioners offer no other evidence to support their claims.  For example, petitioners offer the explanation that delays caused by building permits and construction on the in-district residence, as well as by complications related to Hurricane Sandy, unavoidably and through no fault of their own, caused them to be unable to move in by the summer of 2012 and further caused them to be “displaced from [their] legal residence.”  I note, however, that petitioners submit no documentary or other evidence to support this claim.  Indeed, the record indicates that petitioners’ son attends school in Syosset, outside respondent’s district.  Respondent disputes that petitioners informed the district that they would be delayed in moving into the residence while initially registering Elva for school in June 2012, and the record indicates that petitioners failed to update respondents regarding any such issues and problems related to construction on the in-district residence until after the commencement of respondent’s residency investigation.

On the other hand, respondent has submitted a photograph of the in-district address taken during the assistant superintendent’s site visit in January 2014 (and confirming satellite photograph of the property) showing what appears to be a construction site behind a metal fence containing a wooden framework for a house, and as respondent states, “no habitable house on the property in which the student could reside.”  The record indicates that respondent’s determination that Elva was not a district resident is based on the results of this site visit as well as the returned mail, Elva’s use of the Syosset address on her SAT application, Elva’s statement that she and her family live at the Syosset address, and petitioners’ admission that they own a house in Syosset (independently confirmed by respondent) and failure to deny that they do not reside at the in-district address.  Respondent also considered the fact that petitioners’ son attends school in the Syosset school district.  Other than petitioners’ conclusory assertions, the record contains no indication that petitioners have ever established residency in respondent’s district or that they have abandoned their residence in Syosset (see e.g. Appeal of Pierre B., 32 Ed Dep Rep 162, Decision No. 12,792; Appeal of Reifler, 31 id. 235, Decision No. 12,629).   Petitioners submit no reply to rebut respondent’s evidence or otherwise further explain the situation.

Consequently, on this record, petitioners have not carried their burden of establishing that respondent’s decision was arbitrary or capricious (see e.g. Appeal of Finnell and Morgan, 51 Ed Dept Rep, Decision No. 16,295).  Although the appeal must be dismissed, petitioners retain the right to reapply for admission to the district on their daughter’s behalf, should circumstances change, and to present any new information for respondent’s consideration.

THE APPEAL IS DISMISSED.

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