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

Decision No. 16,763

(June 1, 2015)

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

Zachary W. Carter, Corporation Counsel, attorney for respondent, Kate McMahon, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Brooklyn Laboratory Charter School (“petitioner” or “the school”), 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 a charter school authorized to serve grades six through eight in Community School District (“CSD”) 13.  The record indicates that petitioner commenced instruction in the 2014-2015 school year and served students in grade six.  The school plans to expand to serve students in grade seven in the 2015-2016 school year and grade eight in the 2016-2017 school year. 

By letter dated November 18, 2014, DOE was notified of petitioner’s need for co-location space for grades seven and eight in CSD 13.[1]  By letter dated April 2, 2015, DOE acknowledged the November 18, 2014 request for co-location space but stated that it would “not be extending an offer of space at this time.”  Thereafter, by letter dated April 20, 2015, petitioner submitted an additional written request in which it notified DOE of its need for co-location space for its sixth grade class, for which it commenced instruction in the 2014-2015 school year.  By letter dated April 28, 2015, DOE acknowledged the April 20, 2015 request for co-location space but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer facilities, in violation of Education Law §2853(3)(e), and that such failure is arbitrary and capricious or an abuse of discretion.  As relief, petitioner seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) for the 2014-2015 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 ption 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 respond to its requests for co-location space 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]).

In this case, petitioner has submitted two requests for facilities, one for sixth grade in the 2014-2015 school year, which was its first year of operation, and one for grades seven and eight in subsequent years.  Read together, these two requests constitute a request for facilities for a new charter school.  The record indicates that, in its April 2, 2015 and April 28, 2015 responses to petitioner’s requests for facilities, DOE 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 petitioner 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 first commenced instruction in the 2014–2015 school year with an enrollment of 132 students in grade six.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner in each 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 petitioner’s basic tuition for the current school year (e.g., the 2014-2015 school year in the first year) and petitioner’s enrollment for the current school year (e.g., the 2014-2015 school year in the first year).  As noted above, DOE is obligated to pay for all the grades in the 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 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), and respondent must afford the charter school an opportunity to do so.

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 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 petitioner’s current school year enrollment.

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