Appeal of CONEY ISLAND PREPARATORY PUBLIC CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 17,636

(May 6, 2019)

Ropes & Gray LLP, attorneys for petitioner, David C. Djaha and Ryan S. Duerring, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Rachel K. Marcoccia, Esq., of counsel

Petitioner, Coney Island Preparatory 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 dismissed.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to serve, and currently has been serving, students in kindergarten through grade 12.  The school operates at three different sites, serving elementary grades at one site, middle school grades at another site and high school grades at a third site.  According to petitioner, it was approved to increase its enrollment in kindergarten through grade 12 commencing in the 2020–2021 school year, and, thus, will require additional space for its high school grades.

On March 7, 2019, petitioner submitted a written request for co-location for its grades 9 through 12, pursuant to Education Law §2853(3)(e), using DOE’s online “Portal.”[1]  By letter dated March 11, 2019, DOE acknowledged petitioner’s request, 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 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, in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent denies petitioner’s allegations and asserts that, pursuant to the Acting Commissioner’s decision in Appeal of Coney Island Preparatory Charter School (54 Ed Dept Rep, Decision No. 16,741), it pays rental assistance to petitioner for grades 10 through 12 and continues to do so pursuant to the New York State Education Department’s November 3, 2016 Update on Facilities Guidance for NYC Charter Schools.

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

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 for grades 9 through 12, at no cost to petitioner, 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 alleges that it has been approved by its charter entity to expand its authorized enrollment in its existing grades.  Initially, I note that there is nothing in the record evidencing such approval.  In any event, petitioner has not established a legal basis on which to prevail in this appeal.  Petitioner is seeking space for its grades 9 through 12, grades which it currently serves.  Petitioner asserts that its need for additional space “is due to the expansion of enrollment across grades K through 12.”  While I have previously held that an existing charter school that required space due to an expansion of grade level was entitled to facilities under Education Law §2853(3)(e) for those grades newly provided (Appeal of Classical Charter Schools, 58 Ed Dept Rep, Decision No. 17,525; Appeal of Neighborhood Charter School of Harlem, 58 id., Decision No. 17,460), on the record before me I find that petitioner’s need for additional space is due to the enrollment of more students in its existing grade levels, rather than to an expansion of grade levels or newly provided grades as contemplated by the statute (see Appeal of New Dawn Charter High School, 54 Ed Dept Rep, Decision No. 16,709).

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 not carried its burden of establishing the facts and law upon which it seeks relief.

Therefore, as petitioner has not demonstrated that it is a charter school that requires additional space due to an expansion of grade level, petitioner has not carried its burden in this matter.  As such, the appeal must be dismissed.[2]

In light of the disposition, I need not address the parties’ remaining contentions.

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS DISMISSED.

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