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

Decision No. 17,100

(June 19, 2017)

Cohen Schneider LLP, attorneys for petitioner, Susan R. Briggs and Nisha N. Ragha, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Ian William Forster, Esq., of counsel

ELIA, Commissioner.--Petitioner, Brooklyn Laboratory 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 other 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 authorized by the Board of Regents (“Regents”) and currently serves students in grades 6 through 8 in private space in Community School District 13.  Its provisional charter was issued in December 2013 for a five-year term.  In March 2017, the Regents approved a revision to petitioner’s charter authorizing it to expand to serve students in grades 9 and 10.[1]  Commencing in the 2017-2018 school year, in addition to serving students in grades 6 through 8, petitioner intends to expand to serve students in grade 9, and in the 2018-2019 school year, the final year of the school’s initial charter term, petitioner intends to expand to serve students in grade 10.

By letter to DOE dated March 23, 2017, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) to “accommodate its high school expansion for grades 9-12”.[2]  By letter dated April 3, 2017, DOE acknowledged petitioner’s request for co-location space, but stated that “[w]e will not be extending an offer of space at this time.”[3]  This appeal ensued.

Petitioner asserts that DOE failed to offer it any facilities in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to comply with Education Law §2853(3)(e)(5) and pay rental assistance, beginning with the 2017-2018 school year and continuing thereafter, in “an amount attributable to the high school expansion occurring during Petitioner’s initial charter term” that is equal to the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or “thirty (30) percent”[4] of the product of petitioner’s “basic tuition for the current school year and the positive difference of Petitioner’s enrollment in the current school year minus Petitioner’s enrollment in the school year prior to the first year of the expansion ....”

Respondent admits that it has not offered petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, 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 offer it 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, by letter dated March 23, 2017, petitioner requested co-location space in a public school building for its high school expansion commencing in the 2017-2018 school year.  The record indicates that, in its April 3, 2017 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 was approved by its charter entity in March 2017 to expand to serve students in grades 9 and 10.  The record further indicates that petitioner plans to expand to serve students in grade 9 in the 2017-2018 school year and grade 10 in the 2018-2019 school year, expansions 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 level commencing with its expansion to grade 9 in the 2017-2018 school year.  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 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 serves the grades encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grades 9 and 10 for which it has been approved to provide instruction.[5]  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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

Therefore, DOE must pay petitioner for newly-added grade 9, commencing in the 2017-2018 school year, and grade 10, commencing in the 2018-2019 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion for grades 9 and 10 that is calculated in accordance with the formula set forth in 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 petitioner 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 grade 9 commencing with the 2017-2018 school year, and grade 10 commencing with the 2018-2019 school year, and for each remaining year of the current charter term and for any subsequent renewal term provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to the grade-level expansion that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

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