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

Decision No. 16,902

April 19, 2016

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

ELIA, Commissioner.--Petitioner, The Equity Project Charter School (“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.

Petitioner is a charter school authorized by the Chancellor of the City School District of the City of New York (“Chancellor”) to serve students in kindergarten through grade eight and is currently located in DOE temporary classroom units in Community School District (“CSD”) 6.  Petitioner’s initial charter was issued in January 2008 for a five-year term.  In 2013, it was extended first for a term up through and including June 30, 2013, and then for a term up through and including June 30, 2018.

Petitioner commenced instruction in the 2009-2010 school year serving students in grade five.  It added one grade in each succeeding school year until the 2012-2013 school year, when it served students in grades five through eight.  In January 2016, the Chancellor approved petitioner’s request to revise its charter to add kindergarten through grade four.[1]  Petitioner will expand to serve kindergarten in the 2016-2017 school year and grade one in the 2017-2018 school year.[2]

By letter to DOE dated September 25, 2015, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its planned expansion.[3]  By letter to petitioner dated November 19, 2015, DOE acknowledged receipt of petitioner’s letter and of petitioner’s request for co-location space.  On March 22, 2016, DOE responded to petitioner’s September 2015 request for co-located space, but stated that “[w]e will not be extending an offer of space at this time.”[4]  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 comply with it statutory obligation under Education Law §2853(3)(e)(5).

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 DOE failed to offer it any facilities 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.  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 cost 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 25, 2015.  The record indicates that in its response, DOE stated that it would “not be extending an offer of 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 cost to petitioner.  Instead, DOE indicated in its response only that it would not be extending an offer of 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 cost 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 currently serves students in grades five through eight.  The record further indicates that in January 2016, petitioner’s request to expand to serve students in kindergarten through grade four was approved by its charter entity.  Petitioner will expand to serve students in kindergarten in the 2016-2017 school year and first grade in the 2017-2018 school year, an expansion for which it requires 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, commencing in the 2016-2017 school year with its expansion to kindergarten, that was approved by its charter entity in January 2016.  Petitioner has thus 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 Education Law §2853[3][e]).

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 current charter term, commencing with the 2016-2017 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 its charter entity, “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 ... 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, DOE must pay petitioner for newly-added grades commencing with the 2016-2017 school year and for each remaining year of the current charter term, an amount attributable to its expansion that is equal to 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 then-current school year (i.e. the 2016-2017 school year in the first year) and the positive difference of the charter school’s enrollment in the then-current school year (i.e. the 2016-2017 school year in the first year) minus the charter school’s enrollment in the school year prior to the first year of expansion.  As noted above, commencing with the 2016-2017 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 (Education Law §2853[3][e][5]).

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 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 in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner, for newly-added grades commencing with the 2016-2017 school year and for each remaining year of the charter term, 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 then-current school year and the positive difference of the charter school’s enrollment in the then-current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

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