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

Decision No.  16,737

(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, Amber Charter School (“petitioner”), challenges the New York City Department of Education’s  (“respondent” or “DOE”) failure to offer it a co-location site in a public school building or space in a privately owned or publicly owned facility at respondent’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 an education corporation that was initially chartered by the Board of Regents in April 2000 to operate one charter school, Amber Charter School (“Amber”).  The charter was subsequently renewed to run up through June 30, 2015.[1]

The record indicates that, on June 4, 2014, the Board of Trustees of the State University of New York (“SUNY”), as charter entity, voted to amend petitioner’s charter to authorize it to operate a second charter school, Amber Charter School II (“Amber II”), in Community School District (“CSD”) 6 to serve students in kindergarten through grade five.  Petitioner’s amended charter was deemed approved and issued by the Board of Regents on November 27, 2014 (Education Law §2852[5-a]).  Its amended provisional charter was also extended to continue through July 31, 2020.  Amber II is scheduled to commence operation in either the 2015-2016 school year or, if it takes a planning year, the 2016-2017 school year.  When it opens, Amber II will serve students in kindergarten and first grade and will grow each school year until it serves students in kindergarten through grade five.

By undated letter received by respondent on September 17, 2014, respondent was notified of petitioner’s need for co-location space for Amber II.  By letter dated September 30, 2014, respondent’s staff acknowledged receipt of petitioner’s request for co-location.  Thereafter, by letter dated October 9, 2014, petitioner provided respondent with additional enrollment information to clarify its prior request for co-location space for Amber II.  By letter dated February 13, 2015, respondent acknowledged the request for space received on September 17, 2014, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that respondent failed to offer any facilities, in violation of Education Law §2853(3)(e) and that such failure is arbitrary and capricious as an abuse of discretion.  As relief, petitioner seeks an order directing respondent to pay rental assistance in accordance with Education Law §2853(3)(e)(5) commencing with the 2015-2016 school year or, if it takes a planning year, with the 2016-2017 school year, and continuing thereafter.

Respondent 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).  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 respondent failed to respond to its request for co-location space for Amber II 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.  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 February 13, 2015 response to petitioner’s request for co-location space for Amber II, respondent indicated that it would “not be extending an offer of space at this time.”  However, respondent was required by Education Law §2853(3)(e)(1) to offer petitioner a co-location site in a public school building or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner.  As it did not do either, respondent 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, therefore, required to pay rental assistance based on student enrollment in all grades for which Amber II has been approved to provide instruction during the term of its charter (Appeal of International Charter School of New York, 54 Ed Dept Rep, Decision No. 16,691; Appeal of Rosalyn Yalow Charter School, 54 id., 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 school will first commence instruction with an estimated enrollment of 250 students.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner in each year of Amber II’s charter term the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of Amber II’s basic tuition for the current school year (e.g., the 2015-2016 school year [if it takes a planning year, the 2016-2017 school year] in the first year) and Amber II’s enrollment for the current school year (e.g., the 2015-2016 school year [if it takes a planning year, the 2016-2017 school year] in the first year).  As noted above, DOE is obligated to pay for all the grades in a 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 International Charter School of New York, 54 Ed Dept Rep, Decision No. 16,691; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).

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

Nothing herein should be construed to prevent respondent from offering petitioner co-location space for Amber II 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, with respect to Amber II, the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of Amber II’s basic tuition for the first school year of instruction and Amber II’s current year enrollment.

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