Appeal of R.R., on behalf of his children W.R., F.R., J.R., Z.R. and M.R., from action of the Board of Education of the Ardsley Union Free School District regarding residency.

Decision No. 16,965

(August 31, 2016)

Gina DeCrescenzo, P.C., attorneys for petitioner, Gina M. DeCrescenzo, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Ardsley Union Free School District ("respondent") that his children, W.R., F.R., J.R., Z.R. and M.R. (the "students"), are not district residents.  The appeal must be dismissed.

The record reflects that petitioner purchased a property in respondent's district in February 2015, in Ardsley, NY (the "in-district address"), and that the students began attending school in respondent's district during the 2015-2016 school year.

In November 2015, respondent's assistant superintendent - the district’s residency designee - received a report that one of the students had stated that he lived with his uncle in the Bronx.  As a result, on November 24, 2015, respondent's superintendent wrote a letter to petitioner at the in-district address, requesting information supporting his residency in the district.  Having received no response to this letter, respondent sent petitioner two non-resident tuition bills to the same address, dated December 22, 2015, and January 11, 2016.  Petitioner did not respond to these communications.  In addition, on January 5, 2016, a receptionist employed by respondent attempted to contact petitioner by telephone to discuss payment of tuition and left a message for petitioner regarding the matter.

Following these unsuccessful communication attempts, the assistant superintendent sent a letter to petitioner, dated January 8, 2016, notifying petitioner that she had determined that petitioner and his family did not reside in the district.[1]  The letter noted that petitioner had failed to submit “the document from your architect stating when you will be moving into the house....”  Petitioner was reached by telephone that same day, and made an appointment to present documentation of his residency.  On January 12, 2016, petitioner submitted documentation including a letter from an "architect/engineer" and his driver's license, each of which referenced the in-district address.  Although respondent permitted the students to remain enrolled in the district based on this documentation, it thereafter engaged an outside investigation firm to conduct surveillance regarding petitioner's residency.

Surveillance was conducted on twenty-three days, eighteen of which occurred between January 15 and March 4, 2016, culminating in a report dated March 8, 2016.  A second surveillance took place over five days between March 11 and March 22, 2016, culminating in a report dated March 30, 2016.  According to the March 8 investigation report, pre-surveillance database searches identified three vehicles registered in petitioner's name at the in-district address.  However, the searches did not otherwise show the in-district address associated with either petitioner or his wife.  Instead, the most recent address listed for petitioner was located in Bronx, New York (the "preliminary out-of-district address").  On January 15, 2016, a vehicle registered to petitioner arrived in the early morning to the in-district address.  The adult male who was in the car and two of the students exited the house and drove away.  On January 28, 2016, a different vehicle arrived at the in-district address and it appeared that one of the younger students was in the vehicle.  Early observations of the preliminary out-of-district address showed no activity occurring at that location. 

Further investigation revealed a second property at a different address in Bronx, New York (the "out-of-district address").  On January 29, 2016, the third day of observation, an investigator observed all three vehicles registered to petitioner at the out-of-district address.  Including the January 29, 2016 observation, the surveillance reports indicate that, on 20 of the remaining 21 dates of observation, the five students were observed being driven by an adult female from the out-of-district address to the students' respective schools.  On March 22, 2016, the students were observed departing from the in-district address.  The surveillance reports indicate that, on 14 days of observation, no activity or subjects related to the investigation were observed at the in-district address.  Both reports concluded that the students resided at the out-of-district address, and not within respondent's district.

Based on the March 8, 2016 surveillance report and conclusions, respondent's assistant superintendent wrote to petitioner on March 14, 2016, and notified him of continued concerns about the students’ residency.  The letter requested additional documentation and offered an opportunity for a meeting.[2]  Petitioner met with the assistant superintendent on March 21, 2016, provided documentation regarding his residency, and invited the assistant superintendent to visit the in-district address.  Respondent's assistant superintendent visited the in-district address with petitioner that same day.

Upon visiting the in-district address on March 21, 2016, the assistant superintendent noted that her initial impression was that "it looked as if there had not been people there in quite a while."  She observed that the living room contained a large couch, but no television.  She further observed that the kitchen cabinets and refrigerator contained minimal items.  The assistant superintendent observed that the second floor of the in-district residence had four bedrooms, each of which contained a bed frame, box spring, and mattress, but had no sheets or pillows.  She further observed that the basement had an additional four bedrooms which appeared to be unoccupied.

Based upon the surveillance reports, petitioner's submitted documentation, and her observation of the in-district address, the assistant superintendent concluded that the petitioner did not reside at the in-district address.  Accordingly, by letter dated March 22, 2016, the assistant superintendent notified petitioner of her determination that the students were not district residents and were not eligible to attend respondent's schools tuition-free.  The letter stated that they would be excluded from attendance after April 1, 2016.   This appeal ensued.  Petitioner's request for interim relief was granted on April 19, 2016.

Petitioner seeks a determination that his children are residents of respondent's district and are entitled to attend its schools tuition-free.  Petitioner maintains that he and the students reside at the in-district address, and disputes the conclusions drawn by the respondent's assistant superintendent.  Petitioner contends that respondent’s determination is attributable to his nationality and religion. 

Respondent contends that petitioner has failed to meet the burden of establishing the facts upon which he seeks relief, and has failed to demonstrate a clear legal right to the relief requested.  Respondent asserts that its residency determination is supported by the record and is neither arbitrary or capricious.

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).

In support of his claim that his children reside within the district, petitioner submits a deed for the in-district address property, internet bills, evidence of his mortgage on the property, consumer loan statements, several bills, a driver's license issued in April 2015, and a furniture purchase receipt reflecting the in-district address.  However, 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).  Similarly, mail listing the in-district address does not establish petitioner and the student’s physical presence within the district (see Appeal of Y.G., 51 Ed Dept Rep, Decision No. 16,312).  

The record contains extensive surveillance evidence indicating that petitioner and his children are not physically present at the in-district location.  As noted above, the surveillance reports reveal that on 14 out of 23 days of observation, no activity or subjects related to the investigation were observed at the in-district address.  The surveillance reveals that the students were transported to their respective schools from the out-of-district address on 20 of the 23 days.  Petitioner's wife submitted an affidavit in which she averred that she and the students sometimes stay at the out-of-district location "to be close to extended family" no more than two times per week.  However, this assertion is directly contradicted by the surveillance evidence, which observed the students being transported to their respective schools from the out-of-district address on multiple days, including ten consecutive school days.  Under these circumstances, I find petitioner's wife's statements insufficient to overcome the district's surveillance evidence.  The surveillance reports establish the students’ physical presence at the out-of-district address and it was not arbitrary or capricious for respondent to rely upon it.

In addition to the surveillance evidence, upon visiting the in-district address, respondent's assistant superintendent observed that "it looked as if there had not been people there in quite a while."  The assistant superintendent observed that the living room was furnished with a couch but no television.  The kitchen was observed to contain minimal food and kitchen items in the cabinets, with some still in boxes.  The refrigerator had minimal items in it and the freezer was empty.  The assistant superintendent further observed that the four bedrooms upstairs were furnished with bedframes, box springs, and mattresses, but no pillows or bedding. 

Petitioner contends that the observations of the assistant superintendent are not evidence of non-residence.  He contends that the lack of food merely indicated a need to go shopping, the absence of bedding indicated only that laundry was being done and the unpacked boxes are the "result of a busy home populated by five children."  I find petitioner’s assertions unpersuasive when weighed against the extensive surveillance evidence of the students’ physical presence at the out-of-district address.

Upon review of the totality of the evidence, including respondent's extensive surveillance and the home visit report, I cannot conclude that respondent's determination that petitioner’s children are not district residents is arbitrary, capricious or unreasonable. 

As a final matter, to the extent that petitioner contends that respondent’s residency determination is based on discrimination, the record is devoid of any support for petitioner’s contention and, as discussed above, respondent’s residency determination is supported by the record.

Although the appeal must be dismissed, I note that petitioner retains the right to reapply for admission to respondent's schools on his children's behalf at any time, and to present any information bearing on his children's residence for respondent's consideration.

THE APPEAL IS DISMISSED.

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