Appeal of GLOBAL COMMUNITY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,694

(December 31, 2014)

Paul, Weiss, Rifkind, Wharton & Garrison LLP, attorneys for petitioner, David W. Brown and Erin J. Morgan, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Chlarens Orsland, Esq., of counsel

KING, JR., Commissioner.--Petitioner, Global Community Charter School (“GCCS” 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 currently located in private space in Community School District 6.  Its initial charter was issued on September 13, 2011 for a five year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).[1]

Petitioner is authorized to serve students in kindergarten through fifth grade.  When it first opened in the 2012-2013 school year, GCCS served students in kindergarten and first grade; it added a second grade in the 2013-2014 school year and a third grade in the 2014-2015 school year.  GCCS will continue to grow with further expansion each year until it serves students in kindergarten through fifth grade.

By letter to DOE dated October 9, 2014, GCCS requested co-located space in a public school building for its “newly provided Grades 3-5.”  Prior to its October 9, 2014 request, representatives of GCCS and DOE discussed GCCS’s space needs.  By letter dated November 10, 2014, DOE acknowledged petitioner’s October 9, 2014 request for co-location space but stated that it did not have “appropriate space in a New York City Department of Education building in Community School District 6 to site the school and therefore cannot extend an offer for co-located space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it any facilities in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance, in accordance with Education Law §2853(3)(e)(5).

Respondent generally denies petitioner’s allegations and requests that the appeal be dismissed.

In its reply, petitioner asserts that DOE did not offer any legal arguments or factual assertions contesting its obligations under Education Law §2853(3)(e) and that it did not offer any argument that GCCS failed to meet the requirements of Education Law §2853(3)(e).

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.

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).

Education Law §2853(3)(e) provides that, in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities . . . for such charter schools that require additional space due to an expansion of grade level for those grades newly provided.  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 Education Law §2853(3)(e) requires DOE to provide co-location in a DOE building or space in a privately owned or other publicly owned facility when a charter school submits a written request for co-location space and has approval from its charter entity to either commence instruction or expand grade levels during the 2014-2015 school year or thereafter.  Petitioner contends that its charter, approved by the Board of Regents, details the school’s enrollment plan and is approved for expansion to include students in third grade during the 2014-2015 school year, as well as expansion to include fourth grade during the 2015-2016 school year and fifth grade during the 2016-2017 school year.

The record indicates that, by letter to DOE dated October 9, 2014,[2] GCCS requested co-location space for its “newly provided Grades 3-5.”  Specifically, petitioner requested space to house 70 students in third grade in the 2014-2015 school year, approximately 75 students in fourth grade to be added in the 2015-2016 school year and approximately 75 students in fifth grade to be added in the 2016-2017 school year.  By letter dated November 10, 2014, DOE acknowledged petitioner’s October 9, 2014 request for co-location space but stated that it did not have “appropriate space in a New York City Department of Education building in Community School District 6 to site the school and therefore cannot extend an offer for 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.

The record in this case indicates that petitioner was approved by its charter entity to serve students in kindergarten through fifth grade and commenced instruction in the 2012-2013 school year serving students in kindergarten and first grade.  The record further indicates that in the 2013-2014 school year, GCCS began serving students in second grade.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in the third grade, for which it required additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level in the 2014-2015 school year that was approved by its charter entity, albeit in a charter action that occurred prior to the enactment of Education Law §2853(3)(e).  There being no language in the statute limiting its applicability to expansions of grade level approved by a charter entity on or after the effective date of Education Law §2853(3)(e), I find that petitioner has met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space (see Appeal of Great Oaks Charter School, 54 Ed Dept Rep, Decision No. 16,692).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner in each remaining year of the charter term, commencing with the 2014-2015 school year, rental assistance based on student enrollment in any newly-added grade level(s) for which petitioner has been approved to provide instruction.  Specifically, with respect to an existing charter school whose expansion of grade level is approved by their charter entity 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 grade level expansion . . . 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 . . . (ii) for a charter school which expands its grade level, pursuant to this article, before [October 1, 2016], the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion.” (Education Law §2853[3][e][5]).

Therefore, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner, for newly added grades commencing with the 2014-2015 school year and, for each remaining 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 the charter school’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the 2013-2014 school year.  As noted above, commencing with the 2014-2015 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each year of the initial charter term.

Petitioner contends that rental assistance should be computed based on the lesser of the actual rental cost of an alternative privately owned site selected by it or twenty percent of the product of GCCS’s basic tuition for the 2014-2015, 2015-2016 and 2016-2017 school years and the positive difference of GCCS’s enrollment in the 2014-2015, 2015-2016 and 2016-2017 school years minus GCCS’s enrollment in the 2013-2014 school year, the year prior to the “first year of rent payment” under the statute.  Petitioner misstates the statutory language which does not reference the “first year of rent payment.”  In addition, it is unclear whether petitioner seeks a lump sum payment for 2014-2015 through 2016-2017.  Petitioner is not entitled to such lump sum payment, nor is it entitled to payment for enrollment increases in grades other than grades 3 through 5.  Petitioner requires space due to a grade level expansion in its existing charter school, and under the statutory formula prescribed in Education Law §2853(3)(e)(5), the amount of rental assistance to which petitioner is entitled must be “attributable to the grade level expansion” and is computed annually based on the year-to-year increase in charter school enrollment, in accordance with the above-described formula.  This amount must be computed each year based on the charter school’s actual enrollment, which cannot be computed for all three years based on estimates (see 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 IN PART.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner an amount attributable to the grade level expansion that is 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 the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

END OF FILE.