Appeal of DENISE GARCIA, on behalf of her daughter ASHLEY COLON, JENNIFER TORRES, on behalf of her daughter JESENYA, EDDIE GOMEZ, on behalf of his children MIA and ZACKERY, LATISHA BERETURUIDE, on behalf of her children TANGANE SMITH and TELISA SMITH, EDWARD DROZ, on behalf of his daughter GABRIELLE, and PAMELA JOHNSON, as President of COMMUNITY EDUCATION COUNCIL 11, from action of the New York City Department of Education and the Bronx Charter School for Better Learning II regarding school utilization.

Decision No. 16,749

(April 24, 2015)

Zachary W. Carter, Corporation Counsel, attorney for respondent New York City Department of Education, Chlarens Orsland and Elizabeth Edmonds, Esqs., of counsel

Cohen Schneider & O’Neill LLP, attorneys for respondent Bronx Charter School for Better Learning II, Susan R. Briggs, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the Bronx Charter School for Better Learning II (“BBL II”) (collectively “respondents”) in public school building X144 (“the building” or “building X144”), in Community School District (“CSD”) 11, beginning in the 2015-2016 school year.  The appeal must be dismissed.

According to the petition, petitioners Denise Garcia, Jennifer Torres, Eddie Gomez, Latisha Bereturuide, and Edward Droz are the parents of students who attend J.H.S. 144 Michaelangelo (11X144, “J.H.S. 144”) or Pelham Gardens Middle School (11X566, “Pelham Gardens”).[1]  Both J.H.S. 144 and Pelham Gardens are existing district middle schools located in building X144 and serving students in grades six through eight.  Petitioner Pamela Johnson is president of Community Education Council 11 (“CEC 11”). 

On January 8, 2015, DOE issued an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) (collectively referred to as the “January 8 EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3).  The January 8 EIS proposed, among other things, to co-locate BBL II in building X144 with J.H.S. 144 and Pelham Gardens beginning in the 2015-2016 school year.  The EIS stated that, starting in the 2015-2016 school year, BBL II would enroll students in kindergarten through fourth grade and expand to fifth grade following its first charter renewal.  According to the EIS, BBL II plans to apply to expand its grade levels to serve fifth grade prior to the expiration of its charter in 2020, but the siting of BBL II’s fifth grade is contingent upon approval of BBL II’s renewal and expansion application by its charter authorizer.

On January 8, 2015, DOE also issued a notice regarding the proposed co-location, which included the date, time, and place of the joint public hearing for the proposal.  On February 4, 2015, DOE issued an amended notice regarding the proposed co-location, which changed the location of the Panel for Educational Policy (“PEP”) meeting, but included the same date, time, and place of the joint public hearing as listed on the January 8, 2015 notice.

On February 9, 2015, a joint public hearing (“hearing”) was held regarding the January 8 EIS, and on February 25, 2015, the PEP approved the proposed co-location.[2]  This appeal ensued.

Petitioners allege that DOE violated Education Law §2590-h(2) by failing to hold a joint public hearing with the required interested parties, by failing to re-schedule the hearing as posted on its website, and by widely posting incorrect location information regarding the hearing on its website, thereby minimizing parent participation.  They allege that DOE violated Education Law §2590-g(8) by failing to complete all of the required steps of the public review process, including improperly listing the joint hearing location on its website, and failing to include the date, time, and place of the hearing on the EIS.  Petitioners also assert that DOE violated Education Law §2853(3)(a-3) by failing to properly provide justification for the feasibility and equitable and comparable use of shared spaces for the co-location approved by the PEP on February 25, 2015.  Petitioners further contend that DOE’s proposal process contained other flaws, including the failure to adequately address the issues of overcrowding and of combining middle and elementary school students in the same building. 

Respondents deny petitioners’ allegations and contend that DOE complied or substantially complied with all statutory requirements.  Respondents maintain that DOE’s actions were neither arbitrary nor capricious and were at all times lawful, proper, and in conformity with applicable law, and that petitioners have not met their burden of demonstrating a clear legal right to the relief requested.  In addition, respondent BBL II contends that petitioner Bereturuide lacks standing to bring the petition on behalf of her daughter Telisa Smith because that student – currently in eighth grade – will matriculate out of either J.H.S. 144 or Pelham Gardens before BBL II commences formal instruction in the 2015-2016 school year and, therefore, will not attend school in building X144 in 2015-2016.  Respondent BBL II also contends that petitioner Johnson lacks standing to maintain this appeal on behalf of CEC 11. 

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and provides for an expedited process for appeals to the Commissioner of Education regarding the location or co-location of a charter school within a public school building in the City School District of the City of New York.  Specifically, the expedited process is available for appeals involving:

the determination to locate or co-locate a charter school within a public school building[,] the implementation of and compliance with the building usage plan developed pursuant to [Education Law §2853(3)(a-3)] ... [and/or] the revision of a building usage plan ... on the grounds that such revision fails to meet the standards set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

Initially, I must address the procedural issues.  Commissioner’s regulation §276.11(e)(1) requires that an answer in a charter school co-location appeal be served within ten business days of service of the petition (8 NYCRR §276.11[e][1]).  Service of the answer must be made by personal delivery or next day delivery by express mail or a private express delivery service, in accordance with the provisions of §275.8(b).  According to petitioners’ affidavits of personal service, respondents were served on March 26, 2015.  Therefore, respondents had until April 9, 2015, to serve their answers.  According to their affirmations of service, respondent DOE served its answer by UPS overnight mail on April 9, 2015, and respondent BBL II served its answer by Federal Express for overnight delivery on April 9, 2015.  

Petitioners assert that respondents “failed to deliver their verified answer and memoranda of law within the required 10 business days from the delivery of the petition on March 26, 2015, which would have been April 9, 2015.”[3]  As such, according to petitioners, this failure “renders their verified answer null, void and inadmissible.”  However, as discussed above, respondents have complied with the requirements set forth in §276.11 with respect to the service of their respective answers.  Therefore, their answers are timely and I have considered them.

Respondent BBL II asserts that petitioner Bereturuide lacks standing to bring the appeal on behalf of student Telisa Smith because that student – currently in eighth grade – will matriculate out of either J.H.S. 144 or Pelham Gardens before the 2015-2016 school year and, therefore, will not attend school in building X144 in the 2015-2016 school year, when the proposed co-location is scheduled to begin.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Petitioner Bereturuide brings the instant appeal on behalf of her two children, one of whom, Telisa Smith, is an eighth-grade student.  According to the petition, each of the student petitioners, including Telisa Smith, is enrolled in either J.H.S. 144 or Pelham Gardens.  According to the January 8 EIS, J.H.S. 144 and Pelham Gardens currently serve students in sixth through eighth grade.  Petitioner Bereturuide has failed to demonstrate that her child, Telisa Smith, is directly affected by the co-location.  Therefore, petitioner Bereturuide lacks standing to maintain the appeal on behalf of Telisa Smith (see Appeal of Amponsah, et al., 53 Ed Dept Rep, Decision No. 16,549; Appeal of Williams, et al., 53 id., Decision No. 16,548; Appeal of T.T., et al., 51 id., Decision No. 16,361; Appeal of Collier, et al., 51 id., Decision No. 16,289).  I note, however, that petitioner Bereturuide may maintain the appeal on behalf of Tangane Smith who, according to petitioners, is in sixth grade.  

On the other hand, I find that petitioner Johnson, as President of CEC 11, has standing.  Pursuant to Education Law §2590-c, each community district shall be governed by a community district education council.  Education Law §§ 2590-g(8) and 2590-h(2-a)(d) provide for a public review process, including involvement of the community district education council in the joint public hearing.  In the instant appeal, petitioners claim, inter alia, that CEC 11 was denied involvement in the public review process.  Therefore, I find that petitioner Johnson has standing to maintain the instant appeal on behalf of CEC 11.

Turning to the merits, Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a) requires the Chancellor of the City School District of the City of New York (“Chancellor”) to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District.  The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).

Education Law §2590-h(2-a)(b) requires that an EIS include the following:

1. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;
2. the impacts of the proposed school closing or significant change in school utilization to any affected students;
3. an outline of any proposed or potential use of the school building for other educational programs or administrative services;
4. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;
5. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building’s special features;
6. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and
7. information regarding such school’s academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status.

Further, pursuant to Education Law §2853(3)(a-3), after a public school building has been selected for a proposed co-location, DOE is required to develop a BUP that must be included within the EIS.  At a minimum, the BUP must include the following information:

1. the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;

B.a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students;

C.justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;

D.building safety and security;

5. communication strategies to be used by the co-located schools; and
6. collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee ... (Education Law §2853 [3][a-3][2][A-F]).

The appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Espinet, et al., 50 id., Decision No. 16,212; Appeal of Battis, et al., 50 id., Decision No. 16,115).  In addition, and also with respect to a BUP, the Commissioner will not substitute his or her judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Litichevsky, et al., 50 id., Decision No. 16,254).  Accordingly, absent proof that DOE’s determination regarding the allocation and shared use of space lacked a rational basis, it will not be set aside (Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  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).

Petitioners allege that DOE violated Education Law §2583(3)(a-3) by failing to properly provide justification for the feasibility and equitable and comparable use of shared spaces for the co-location approved by the PEP on February 25, 2015. 

Decisions on the allocation of space in a school building containing multiple schools are complex, with needs changing over time, as programs and enrollment change.  Such decisions necessarily involve pedagogical judgments and cannot reasonably be expected to be made with scientific precision.  For those reasons, such decisions, like decisions on school closings, must be left to the sound discretion of local school officials, in this case DOE.  Accordingly, I will not substitute my judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building.  Absent proof that DOE’s determination lacked a rational basis, it will not be set aside (cf. Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).

Petitioners generally challenge DOE’s justification for the feasibility and equity of the proposed allocation of shared spaces.  DOE asserts that proposed shared space allocations are described in the BUP, are based on a system-wide formula applicable to all schools, and the schedules are intended to be modified as needed by the Building Council when the schools begin their operations while sharing the building.  DOE further asserts that there is nothing arbitrary and capricious about the space allocations and that the building has ample capacity.

Specifically, the BUP states that during the 2015-2016 school year, J.H.S. 144 will serve approximately 510-540 students, Pelham Gardens will serve approximately 450-480 students, and BBL II will serve approximately 70-80 students.  The BUP explains that the proposed shared space plan is based on the 2015–2016 school year – the first year of implementation of the co-location.  The BUP also states that the Building Council will revisit the plan and schedules “on an annual basis to account for any changes in enrollment or programmatic needs.” 

The BUP contains a detailed proposal for the use of shared spaces, including a table indicating the amount of time per week each co-located school would have access to the cafeteria, gymnasium, library, auditorium, woodwork room, and music rooms.  The BUP also provides justification for how the proposed allocations result in “equitable and comparable” use as required by the statute and explains that the proposal is based on several factors, including projected enrollments for each co-located school, current and projected programming at each school, the total capacity of each shared space, the grades served by each of the co-located schools, and the start and end times of the school day. 

 On this record, petitioners have failed to meet their burden of demonstrating that DOE violated Education Law §2583(3)(a-3) by failing to properly provide justification for the feasibility and equitable and comparable use of shared spaces for the co-location approved by the PEP on February 25, 2015. 

Petitioners next assert that DOE failed to adequately address issues such as overcrowding and co-locating middle and elementary school students in the same building.  With respect to petitioners’ general assertion that the co-location will result in overcrowding, petitioners provide no basis for their assertion that DOE failed to adequately address issues related to overcrowding.  On the other hand, the January 8 EIS indicates that the building has a target capacity of 1,534 students and that, during the 2014-2015 school year, the building serves a total of approximately 1,025 students, yielding a building utilization rate of approximately 67 percent.  If the proposal is approved, according to the January 8 EIS, BBL II, J.H.S. 144, and Pelham Gardens will collectively serve between 1,380 and 1,500 students in the X144 building in 2020-2021, which yields a projected building utilization rate of approximately 90-98 percent.  As such, petitioners have failed to meet their burden in this regard.

Petitioners also assert that that DOE failed to adequately address the issues regarding co-locating middle and elementary school students in the same building.  I note that previous Commissioner’s decisions have upheld the co-location of elementary school students and middle school students as well as the co-location of elementary and high school students (see e.g., Appeal of Williams, et al., 53 Ed Dept Rep, Decision No. 16,548; Appeal of Wright, 52 id., Decision No. 16,457; Appeal of T.T., 51 id., Decision No. 16,361; Appeal of McCall, 51 id., Decision No. 16,257).  Petitioners do not address what “issues” DOE failed to adequately address.  To the extent petitioners attempt to assert that DOE overlooked safety issues, Education Law §2853(3)(a-3)(2)(D) states that the BUP must address “building safety and security,” but does not specify the information that a BUP should include and DOE is afforded a “considerable measure of discretion in this regard” (see Mulgrew, et al. v. Bd. of Educ. of the City School Dist. of the City of New York, et al., 75 AD3d 412 [1st Dept 2010]).  Here, the BUP provides that every school must have a School Safety Committee and further explains the committee’s role and responsibilities, including developing a comprehensive School Safety Plan which is submitted to the New York City Police Department (“NYPD”) for final approval and certification.  Pursuant to the BUP, School Safety Plans are updated annually in order to address changing security needs and the School Safety Committee can recommend changes at any other time when it is necessary to address security concerns.  Accordingly, I conclude that petitioners have failed to establish that the BUP is in any way deficient in this respect.

Petitioners claim, with respect to the BUP, that “BBL II will require capital improvement and a facilities upgrade,” and that “[t]he DOE BUP must retro fit bathroom toilets/sinks” as the kindergarten children attending BBL II will use smaller toilets and sinks, which requires removal and replacement of existing plumbing, which “may possibly cause student exposure to PCBs and Asbestos.” Respondent DOE asserts that the existing bathrooms are adequate for the proposed co-location and respondent BBL II asserts that it has already had amicable and cooperative meetings with J.H.S. 144 and Pelham Gardens officials regarding the shared bathrooms.  Petitioners’ reply contains no allegations or evidence to refute those claims. 

Finally, petitioners claim that DOE violated Education Law §§2590-g(8) and 2590-h(2-a) by failing to complete all of the required steps of the public review process, including posting an EIS which did not list the hearing date, improperly listing the joint hearing location on its website, and failing to include the date, time, and place of the hearing on the EIS.  The crux of petitioners’ claim in this regard involves the scheduling of the joint public hearing and respondents’ alleged failure to involve CEC 11 and parents of students attending J.H.S. 144 and Pelham Gardens in X144. 

Education Law §2590-g(8) provides that the PEP must undertake a public review process to afford the public an opportunity to submit comments on any significant change in school utilization as follows:

Such public review process shall include notice of the item under city board consideration which shall be made available to the public, including via the city board's official internet website, and specifically circulated to all community superintendents, community district education councils, community boards, and school based management teams, at least forty-five days in advance of any city board vote on such item. Notice of the proposed item under city board consideration shall include:

(i) a description of the subject, purpose and substance of the proposed item under consideration;

(ii) information regarding where the full text of the proposed item may be obtained;

(iii) the name, office, address, email and telephone number of a city district representative, knowledgeable on the item under consideration, from whom any information may be obtained concerning such item;

(iv) date, time and place of any hearing regarding the proposed item, if applicable;

(v) date, time and place of the city board meeting at which the city board will vote on the proposed item; and

(vi) information on how to submit written or oral comments regarding the item under consideration (Education Law §2590-g[8]).

Petitioners assert that the joint public hearing should not have taken place on February 9, 2015, and should have been rescheduled because the parents of students attending school in building X144, CEC 11 members, and members of BBL II’s charter authorizing board were unable to attend that day.  As such, petitioners assert that respondents failed to hold a joint public hearing with the required interested parties.  As discussed above, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief.  The record indicates that both the January 8 notice and February 4 amended notice scheduling the joint public hearing provided sufficient notice of the hearing in compliance with the statutory provisions.  DOE correctly maintains that there is no statutory or regulatory requirement for charter authorizers to attend the joint public hearing.   As respondents correctly note, an e-mail sent by CEC 11 at 4:42 p.m. on the day of the joint public hearing requesting that it be rescheduled, demonstrates that there was no confusion that the joint public hearing would take place on February 9, 2015.  Moreover, to the extent any parents were unable to attend the hearing, such parents could have submitted their comments to the DOE by phone or email after the hearing as specified in both the notice and the amended notice.  While DOE concedes that it inadvertently listed the wrong address for the joint public hearing on its website two weeks after the hearing had been held, the record reflects that the correct location was originally posted on the website and was included in the original notices.  Other than conclusory assertions, petitioners provide no evidence or legal authority to establish that respondent acted arbitrarily or capriciously or to otherwise support their claims in this regard. 

I have considered petitioners’ remaining contentions and find them to be without merit. 

THE APPEAL IS DISMISSED.

END OF FILE