Appeal of BRILLA COLLEGE PREPARATORY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,735

(April 6, 2015)

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

Zachary W. Carter, Corporation Counsel, attorney for respondent, Stephen Kitzinger, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Brilla College Preparatory Charter School (“Brilla” 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 currently located in private space in Community School District (“CSD”) 7.  Its initial charter was issued on June 19, 2012 for a five year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).

Petitioner is authorized to serve students in kindergarten through fifth grade during the term of its initial charter.  When it first opened for instruction in the 2013-2014 school year, petitioner served students in kindergarten and first grade; it added second grade in the 2014-2015 school year.  Petitioner will add third grade in the 2015-2016 school year and will continue to add one grade each year until the 2017-2018 school year, when it will serve students in kindergarten through fifth grade.

By letter to DOE dated September 8, 2014, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its expansion to grades three through five starting in the 2015-2016 school year.[1]  By letter dated September 30, 2014, DOE acknowledged petitioner’s September 8, 2014 request for co-location space and stated that the letter had been forwarded to “staff members within the New York City Department of Education’s Office of Charter School Accountability and Support for review.”  By letter dated February 9, 2015, DOE responded to petitioner’s September 8, 2014 request, indicating that it would “not be extending an offer of space in Community School District (CSD) 7 at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities in violation of Education Law §2853(3)(e) and that such failure was arbitrary and capricious or an abuse of discretion.  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5), beginning with the 2014-2015 school year and continuing thereafter.  In the alternative, petitioner seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5), beginning with the 2015-2016 school year and continuing thereafter if petitioner is not eligible for such rental assistance for the 2014-2015 school year.

Respondent requests that the appeal be dismissed in its entirety.

Preliminarily, I note that, while respondent’s answer was timely served upon petitioner, it was not filed with my Office of Counsel within one business day after it was served as required by section 276.11 of the Commissioner’s regulations.  While I will consider respondent’s answer, I admonish respondent to ensure that regulatory timelines are met in the future.[2]

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).

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, 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 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 September 8, 2014.  Specifically, petitioner requested space for its third through fifth grades beginning with the 2015-2016 school year.  The record indicates in its February 9, 2015 response, DOE stated that it would “not be extending an offer of space in Community School District (CSD) 7 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 February 9, 2015 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 kindergarten through fifth grade and commenced instruction in the 2013-2014 school year serving students in kindergarten and first grade.  The record further indicates that, in the 2014-2015 school year, petitioner began serving students in second grade in the same building where it served its kindergarten and first grade.  In the 2015-2016 school year, petitioner will begin serving students in the third grade, for which it requires and requested additional space.

I note that petitioner also seeks relief for its addition of second grade in the 2014-2015 school year.  While petitioner acknowledges that its September 8, 2014 request for space did not specifically request co-location space for its second grade expansion, it argues that it is eligible for space for all of its grade level expansions, starting with the second grade expansion.  It asserts that Education Law §2853(3)(e) contains no requirement as to the content of the written request for space and that it is eligible for space under that provision because “it is a charter school that requires additional space due to grade level expansions – specifically, the 2^nd, 3^rd, 4^th, and 5^th Grade Expansions – as approved by the Board of Regents for the 2014-2015 school year or thereafter, and that made a written request for co-location in a public school building to NYC DOE.”  In addition, petitioner asserts that DOE made no reference to any specific grade levels in its September 30, 2014 acknowledgement of or its February 9, 2015 response to petitioner’s request for space.  However, Education Law §2853(3)(e) provides, in relevant part, that charter schools that require additional space due to an expansion of grade level and request co-location shall be provided access to facilities.  The record indicates that, by its own admission, petitioner’s request for co-location space did not include a request for its expansion to second grade.

Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level, commencing in the 2015-2016 school year with its third grade, 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 in the 2015-2016 school year with petitioner’s third grade, 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 2015-2016 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 2015-2016 school year and the positive difference of the charter school’s enrollment in the 2015-2016 school year minus the charter school’s enrollment in the 2014-2015 school year, the school year prior to the first year of expansion.  As noted above, commencing with the 2015-2016 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each year of the current 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 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 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 2015-2016 school year and the positive difference of the charter school’s enrollment in the 2015-2016 school year minus the charter school’s enrollment in the 2014-15 school year, the school year prior to the first year of expansion.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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