Appeal of INTERNATIONAL CHARTER SCHOOL OF NEW YORK from action of the New York City Department of Education regarding school utilization.

Decision No. 16,691

(December 23, 2014)

Law Offices of Eric J. Grannis, attorneys for petitioner, Eric Grannis, Esq., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

KING, JR., Commissioner.--Petitioner, International Charter School of New York (“ICS” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be sustained in part.

Petitioner is a charter school in the New York City School District authorized to serve students in grades kindergarten through five and scheduled to commence instruction in the 2015–2016 school year.  Petitioner’s proposed charter was deemed approved and issued on October 16, 2014, pursuant to Education Law §2852(5-a).  When it opens in the fall of 2015, the school will serve students in kindergarten and first grade and will grow each year until the 2019-2020 school year when it will serve students in kindergarten through fifth grade.

By email dated May 19, 2014, petitioner’s founder notified DOE of its need for facility space in Community School District 13 (“CSD 13”).  By letter dated October 17, 2014, DOE acknowledged petitioner’s May 19, 2014 request for space but stated that it did not have “appropriate space in a DOE building in CSD 13 to site the school and therefore cannot extend an offer of co-located space at this time.”  This appeal ensued.

Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that are approved by their charter entity to first commence instruction for the 2014-2015 school year or thereafter and that request co-location in a public school building shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

Petitioner asserts that DOE failed to offer it any facilities in violation of Education Law §2853(3)(e).  As relief, petitioner seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) for students in all grades for which petitioner has been approved to provide instruction during the term of its charter.

Respondent contends that the relief requested exceeds that allowed by law and asserts that the appeal must be dismissed in its entirety.

Preliminarily, I note that this appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014. Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5).  Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803. 

Additionally, Education Law §2853(3)(e)(2) provides, “No later than thirty days after approval by the board of education or expiration of the offer period prescribed in subparagraph one of this paragraph, the charter school shall either accept the city school district’s offer or appeal in accordance with subparagraph three of this paragraph.”  Moreover, generally, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, petitioner challenges respondent’s October 17, 2014 determination that it would not offer co-located space in a public DOE building to petitioner.  Although petitioner initially served the petition by mail, using overnight delivery, on November 13, 2014, and the record indicates that respondent received it on November 14, 2014, personal service of the petition, as required by Commissioner’s regulations, was not effected until November 20, 2014.  I note that, while respondent’s answer sets forth the relevant dates in question, it does not raise timeliness as an affirmative defense.  I find that by failing to raise timeliness of the appeal as an affirmative defense, respondent has waived any objection that the appeal is untimely (see Maida v. Ambach, 97 AD2d 572; Application to Reopen the Appeal of the Board of Education of the Nyack Union Free School District, 33 Ed Dept Rep 237, Decision No. 13,037).   Moreover, in the petition, petitioner requests that I excuse the delay in effecting personal service to commence the appeal, and respondent does not object or otherwise respond to petitioner’s request.  In any event, under these circumstances, I find no prejudice to respondent and, in the interests of justice, given the important issues raised herein regarding the newly enacted legislation, I would excuse petitioner’s de minimus delay and and decline to dismiss the appeal as untimely. 

Turning to the merits, in an appeal to the Commissioner, a 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 (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner asserts that DOE failed to respond to its application for co-location space with an offer of either co-location space in a public school facility or space in another public or private facility at no cost to petitioner.  As noted above, Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that are approved by their charter entity to first commence instruction for the 2014–2015 school year or thereafter and request co-location in a public school building shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

The record indicates that in its October 17, 2014 response to petitioner’s request for space, DOE indicated that it did not have “appropriate space in a DOE building in CSD 13 to site the school and therefore cannot extend an offer of co-located space at this time.”  However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner.  Instead, DOE stated only that it could not extend an offer of co-located space.  As it did not offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78.  The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law.  The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.  Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

In accordance with Education Law §2853(3)(e)(5), DOE is required to pay rental assistance based on student enrollment in all grades for which petitioner has been approved to provide instruction during the term of its charter (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment not the enrollment projections set forth in the charter for each year of the charter term.  Specifically, with respect to a new charter school whose charter is granted before October 1, 2016, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to ... the formation of the new charter school that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and (i) for a new charter school that first commences instruction on or after July first, [2014], the charter school’s current year enrollment ...” (Education Law §2853[3][e][5]).

The amounts payable to a charter school in its first year of operation shall be based on the projections of initial-year enrollment set forth in the charter until actual enrollment is reported to the school district by the charter school (see Education Law §2856[1][b]).  Such projections shall be reconciled with the actual enrollment at the end of the school’s first year of operation, and any adjustment shall be made to payments during the school’s second year of operation (see Education Law §2856[1][b]).  The record in this case indicates that the charter school will first commence instruction in the 2015–2016 school year with an estimated enrollment of 155 students.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner in each year of the charter the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year (e.g., the 2015-2016 school year in the first year) and petitioner’s enrollment for the current school year (e.g., the 2015-2016 school year in the first year).  As noted above, DOE is obligated to pay for all the grades in the newly-opened charter school in each year of the initial charter term; the amount payable must be based on the charter school’s actual current year enrollment (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the charter school an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of an alternative privately owned site so that DOE can determine whether such rental cost is lesser than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year and petitioner’s current year enrollment.

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