Appeal of BROOKLYN URBAN GARDEN CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,699

(January 30, 2015)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Susan R. Briggs, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Thomas B. Roberts, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Brooklyn Urban Garden Charter School (“Brooklyn Urban Garden” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”)[1] 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 currently located in private space in Community School District 15.  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).  Petitioner used the 2012-2013 school year as a planning year.

Petitioner is authorized to serve students in grades six through eight.  When it first opened for instruction in the 2013-2014 school year, petitioner served students in sixth grade; it added a seventh grade in the 2014-2015 school year.  Petitioner intends to complete its expansion in the 2015-2016 school year when it will serve students in grades six through eight.

By letter to DOE dated July 7, 2014, petitioner requested co-location space to begin operating a seventh grade commencing in 2014-2015 and to begin operating an eighth grade commencing in 2015-2016.  By email to DOE dated September 8, 2014, petitioner resubmitted its request for co-location space.  By letter dated December 10, 2014, DOE acknowledged petitioner’s July 7, 2014 request for co-located space, but stated that it did not have “appropriate space in a DOE building in Community School District (CSD) 15 and therefore cannot extend an offer of co-located space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it a co-location site in a public school building or space in a privately owned or other publicly owned facility, at no cost to petitioner, within the statutorily prescribed five-month period and in violation of its statutory obligation to do so.  It seeks an order directing DOE to pay, beginning with the 2014-2015 school year and continuing thereafter, an amount attributable to the grade level expansion that is equal to the lesser of the actual rental cost of an alternate 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 petitioner’s enrollment in the current school year minus petitioner’s enrollment in the school year prior 2013-2014 school year.

Respondent generally denies petitioner’s allegations and requests that the appeal 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).[2]  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).

Petitioner asserts that DOE failed to respond to petitioner’s July 7, 2014 request within the statutorily prescribed five-month period set forth in Education Law §2853(3)(e) and also claims that, in its December 10, 2014 letter, DOE failed to offer petitioner a co-location site in a public school building or space in a privately owned or other publicly owned facility at no cost to petitioner, in violation of Education Law §2853(3)(e).

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]).

Here, petitioner made a written request for co-location space in a public school building on July 7, 2014.  Specifically, petitioner requested space to house 120 students in seventh grade in the 2014-2015 school year and approximately 100 students in eighth grade to be added in the 2015-2016 school year.  The record indicates that DOE failed to respond to that request by December 7, 2014 – within five months of petitioner’s request.[3]  Moreover, the record indicates that, ultimately, in its December 10, 2014 response, DOE indicated that it did not have “appropriate space in a DOE building in Community School District (CSD) 15 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 indicated in its December 10 response 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 sixth through eighth grade and that it commenced instruction in the 2013-2014 school year serving students in sixth grade.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in seventh 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 levels in the 2014-2015 and 2015-2016 school years 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 co-located space 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.

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.

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