Appeal of LEONARDO G. CHIRIBOGA, on behalf of his son LEONARDO E. CHIRIBOGA, from action of the Board of Education of the Lake George Central School District regarding residency.

Decision No. 16,803

(August 3, 2015)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lake George Central School District (“respondent”) that his son, Leonardo E. Chiriboga, is not a district resident.  The appeal must be dismissed.

Petitioner states that he resides on Lake Shore Drive within respondent’s district with his wife and son, and that, with the exception of certain periods of time from “September 2012 through in or about May 2012 [sic] and September 2013 through in or about April 2014 ...” his son has resided there for the past 10 years.  Petitioner further states that he, his wife and son have exclusively resided at the Lake Shore Drive address as their primary residence since on or about April 2014 and that they intend to reside there as their primary residence for the foreseeable future.  In addition, petitioner states that he and his wife own various rental properties in several different towns, including Queensbury.

In his affidavit, respondent’s superintendent states that respondent has questioned petitioner’s residency since 2005.  He references a January 2005 letter that petitioner and his wife submitted to respondent indicating that they owned a resort on Lake George and had decided, in 2004, to make Lake George their home.  In their January 2005 letter, petitioner and his wife advised respondent’s then-superintendent that they recently moved to Queensbury “until such time as [they] can return to the motel” because they were “quite uncomfortable because the resort is not very well winterized.”  They further indicated that they expected “full winterization to be completed in approximately 1 ½ years ... and then [they] will be able to live on site all year.”  Respondent’s then-superintendent responded to petitioner’s letter indicating that he would allow petitioner’s children to attend school in the district provided that petitioner indicated a specific date when “winterization” would be completed and updated the then-superintendent at least every three months on the progress of the winterization.  Respondent’s superintendent states in his affidavit that despite requests for updates on the progress of winterization, petitioner has not provided proof of such winterization.  In addition, respondent’s superintendent states that though petitioner claims to have lived at the Lake George resort for the previous 10 years, petitioner filed for a school tax relief (“STAR”) exemption on the Queensbury property in 2008 and renewed the application in 2013.  The superintendent also points out that in the STAR application, petitioner and his wife attested that the Queensbury property is their primary residence.  Further, respondent’s superintendent states that eyewitnesses observed the Chiriboga’s residing in Queensbury, though those eyewitnesses are not identified.[1]

On September 4, 2014, petitioner made a request for admission to the district, which respondent denied on September 5, 2014.  This appeal ensued and petitioner’s request for interim relief was granted on October 1, 2014. 

Petitioner asserts that his son is a resident of respondent’s school district and entitled to attend school in respondent’s school district without the payment of tuition.

Respondent asserts that the petition must be dismissed for improper service.  In addition, respondent contends that petitioner has failed to meet his burden and that the district’s actions were appropriate and in accordance with both Education Law and the Commissioner’s regulations.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service indicates that the notice of petition was served “on the office of Superintendent Dee and/or the Lake George Central School District Board of Education by delivering to and leaving with” Principal Cocozza, the high school principal.  In his affidavit, Principal Cocozza states that he is not authorized to accept service.  He also states that he was in his office at the high school on September 19, 2014 when petitioner and a woman he did not know came into the office.  According to Principal Cocozza, the woman placed an envelope on the counter in the main office and petitioner indicated that the envelope was intended for the district office.  Principal Cocozza states in his affidavit that the envelope was sealed, that he did not ask and was not told what was in it, that he indicated he would deliver the envelope to the district office and that he sent the envelope to the district office that day.

In his reply, petitioner asserts that he is not a law professional or attorney and that the petition was served in good faith and in as close adherence to the Commissioner’s regulations as possible.  He also asserts that it was incumbent upon the principal to explain that he was not authorized to accept service.  However, where there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Terry, 50 Ed Dept Rep, Decision No 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956; Appeal of DeMarco, 48 id. 252, Decision No. 15,850).  As petitioner failed to serve a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed.

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, 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).

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 this record, I cannot find that petitioner has met his burden of demonstrating that he is a district resident.  Petitioner has submitted several leases for the Queensbury property, including one covering most of the 2014-2015 school year that demonstrates that such property is leased to others.  However, such documentation does not prove that petitioner is physically present and intends to remain in the in-district residence.  Similarly, petitioner’s driver’s license, voter registration card and an August 2013 utility bill all bearing the in-district address are not dispositive of his claim that he resides in respondent’s district, particularly in view of petitioner’s failure to explain whether the Lake George property is currently habitable during the winter.  I note that the issue of the habitability of the Lake George property during the winter was raised in respondent’s papers and petitioner failed to address it in his reply.

While the evidence from both parties is far from overwhelming, petitioner bears the burden of proof and has failed to explain how the in-district address could be his primary residence if it is not habitable in the winter.  Consequently, on this record, I cannot find that petitioner met his burden of proof.

Although petitioner does not raise and the record is unclear whether respondent complied with Commissioner’s Regulation §100.2(y), respondent must comply with such requirements.  I note that petitioner retains the right to reapply to the district for his son’s admission at any time and to present any new information for respondent’s consideration pursuant to Commissioner’s Regulation §100.2(y).

THE APPEAL IS DISMISSED.

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