Appeal of FAMILY LIFE ACADEMY CHARTER SCHOOLS from action of the New York City Department of Education regarding school utilization.

Decision No. 17,121

(July 12, 2017)

Cohen Schneider LLP, attorneys for petitioner, Susan R. Briggs, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

Berlin, Acting Commissioner.--Petitioner, Family Life Academy Charter Schools, an existing education corporation with authority to operate Family Life Academy Charter School II (“FLACS II” or “the school”),[1] challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer 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.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate FLACS II, which served students in kindergarten through grade 5 in the 2016-2017 school year.[2]  On March 8, 2017, SUNY authorized the renewal of the authority of petitioner to operate FLACS II for a five-year term and approved its request to revise the school’s charter to expand to serve students in grades 6 through 8 (“middle school expansion”).  The school will commence its middle school expansion in the 2017-2018 school year.

By letter to DOE dated May 5, 2017, petitioner requested co-location in a public school building, pursuant to Education Law §2853(3)(e), for the school’s middle school expansion.  By letter dated May 16, 2017, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”[3]  This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities for the school 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 school’s middle school expansion 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 the school’s basic tuition for the current school year and the positive difference of the school’s enrollment in the current school year minus the school’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 for the school 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 May 5, 2017, petitioner requested co-location space in a public school building for the school’s middle school expansion commencing in the 2017-2018 school year.  The record indicates that, in its May 16, 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 for the school, 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 for the school 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 the school currently serves students in kindergarten through grade 5.  The record further indicates that the school was approved by its charter entity in March 2017 to expand to serve students in grades 6 through 8.  The school will commence its middle school expansion 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 the school requires additional space due to an expansion of grade level that was approved by its charter entity for the 2014-2015 school year or thereafter.  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 6 through 8 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 the school’s newly-added grades 6 through 8, commencing in 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, an amount attributable to its middle school expansion 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 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 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 for the school 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 the school’s middle school expansion commencing with the 2017-2018 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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