Appeal of UNCOMMON NEW YORK CITY CHARTER SCHOOLS from action of the New York City Department of Education regarding school utilization.

Decision No. 17,010

(December 6, 2016)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Lisa J. Holtzmuller and Cliff S. Schneider, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Christopher Ferreira, Esq., of counsel

ELIA, Commissioner.--Petitioner, Uncommon New York City Charter Schools (“Uncommon”), an existing education corporation with authority to operate Kings Collegiate Charter School (“KCCS” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it, on behalf of the school, 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 authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate the school, which is approved to serve students in kindergarten through grade 12.  The school currently serves students in kindergarten and grades five through eight.[1]  In addition to the high school expansion discussed below, the school plans to add an elementary school grade level each year until it serves students in kindergarten through grade eight.[2]

The record indicates that, on September 27, 2016, SUNY approved Uncommon’s request to revise the school’s charter to expand from serving students in kindergarten through grade 8 to also serve students in grades 9 through 12 (“high school expansion”).  Petitioner plans to implement the high school expansion commencing with the 2017-2018 school year.  During the first year of the high school expansion, the school will expand to serve students in grade nine, in addition to serving students in kindergarten and grade one and grades five through eight.  As it adds elementary school grades, the school will also expand to serve one high school grade level in each succeeding school year until it serves grade 12, when the high school expansion will be completed and the school will ultimately serve a grade span of kindergarten through grade 12.

By letter to DOE dated May 6, 2016, Uncommon requested, on behalf of the school, co-location for the high school expansion in a public school building in accordance with Education Law §2853(3)(e).  This appeal ensued on November 4, 2016.  The record indicates that, at that time, petitioner had not received a response from DOE regarding its request for co-location space for the school.[3]

Petitioner asserts that DOE failed to respond to its request for space for the school within the statutorily prescribed time frame and that DOE has not otherwise offered petitioner space for the school in violation of Education Law §2853(3)(e)(5).  It seeks an order directing DOE to comply with its statutory obligation under Education Law §2853(3)(e)(5) beginning with the 2017-2018 school year and continuing thereafter.

Respondent admits that Uncommon has not received a response to its May 6, 2016 request for co-location space, but 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 respond to its request for co-location space for the school with an offer of either co-location space in a public school building or space in another public or private facility at no cost to petitioner within the statutorily prescribed time frame 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]).

As noted above, DOE admits that Uncommon has not received a response to its May 6, 2016 request for co-location space.  DOE also admits that it has not otherwise offered Uncommon facilities for the school.

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 the school was approved by its charter entity on September 27, 2016 to expand grades served from kindergarten through grade 8 to kindergarten through grade 12.  The record further indicates that petitioner plans to implement the school’s high school expansion commencing in the 2017-2018 school year, an expansion for which the school requires additional space.  Therefore, on the record before me, I find that petitioner has established that the school requires additional space for its high school expansion commencing in the 2017-2018 school year that was approved by its charter entity.  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 for KCCS (see Education Law §2853[3][e]).

Accordingly, having failed to respond to petitioner’s request for space for the school, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner, commencing with the 2017-2018 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term provided that, in any such renewal term, the charter school continues to serve the same grades authorized by SUNY in the current charter term referenced herein, rental assistance based on student enrollment in the newly-added high school grade level(s) for which the school has been approved to provide instruction.[4]  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 the school’s newly-added high school grades commencing with the 2017-2018 school year, and in each remaining year of the current charter term and any subsequent renewal term provided that, in any such renewal term, the charter school continues to serve the same grades authorized by SUNY in the current charter term referenced herein, an amount attributable to its high school 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 basic tuition for the then-current school year (i.e. the 2017-2018 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 2017-2018 school year in the first year) minus the charter school’s enrollment in the school year prior to the first year of the high school expansion (i.e. the 2016-2017 school year).[5]  As noted above, commencing with the 2017-2018 school year, DOE is obligated to pay for facilities for the school’s high school expansion in each year of the school’s current charter term and any subsequent renewal term provided that, in any such renewal term, the charter school continues to serve the same grades authorized by SUNY in the current charter term referenced herein (Education Law §2853[3][e][5]).

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately-owned site for the school and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of the 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 for the school in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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 the school’s newly-added high school grades commencing with the 2017-2018 school year and for each remaining year of the charter term, and for any subsequent renewal term provided that, in any such renewal term, the charter school continues to serve the same grades authorized by SUNY in the current charter term referenced herein, an amount attributable to the high school 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 the school’s basic tuition for the then-current school year and the positive difference of the school’s enrollment in the then-current school year minus the school’s enrollment in the school year prior to the first year of expansion.

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