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

Decision No. 18,259

(March 29, 2023)

Cohen Schneider Law, P.C., attorneys for petitioner, Cliff S. Schneider and Mark J. Fink, Esqs., of counsel

Hon. Sylvia Hinds-Radix, Corporation Counsel, attorney for respondent, Bryn M. Ritchie, Esq., of counsel

ROSA., Commissioner.--Petitioner, Coney Island Preparatory Public 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 Trustees of the State University of New York (“SUNY”) to serve students in kindergarten through grade 12.  According to petitioner, its initial charter was approved by its prior authorizer, respondent’s Chancellor, in December 2008, authorizing it to serve students in grades 5 through 9.  Its charter was subsequently renewed in December 2013 and revised to allow petitioner to expand to serve students in kindergarten through grade 4 and grades 10 through 12, in addition to the previously approved grades 5 through 9.  According to petitioner, it commenced formal instruction in the 2009-2010 school year, beginning with grade 5, and continued to expand to serve students in grades 6 through 9 by adding one grade per year through the 2013-2014 school year.  It subsequently expanded to serve students in kindergarten and grades 1 and 10 in the 2014-2015 school year, grades 2 and 11 in the 2015-2016 school year, grades 3 and 12 in the 2016-2017 school year,[1] and grade 4 in in the 2017-2018 school year.[2]

In a previous appeal, a decision was issued ordering DOE to comply with the requirements of Education Law § 2853 (3) (e) (5) with respect to petitioner’s request for space relating to its grades 3 and 4 (Appeal of Coney Island Preparatory Public Charter School, 54 Ed Dept Rep, Decision No. 16,741).  According to the decision, DOE was to pay petitioner for its grades 3 and 4, commencing in the 2022-2023 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 served the grades encompassed by the charter referenced therein), an amount attributable to its expansion to grades 3 and 4 that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

Subsequent to the issuance of this decision, a determination was made whereby petitioner’s grades 3 and 4, which had been co-located within DOE facilities, would no longer be offered co-location space as of the 2021-2022 school year.  As a result, petitioner states that it was compelled to lease space for its grades 3 and 4, commencing with the 2021-2022 school year.

On February 8, 2023, a written request for co-location was submitted for petitioner’s grades 3 and 4, beginning in the 2021-2022 school year, pursuant to Education Law § 2853 (3) (e).  By letter dated February 13, 2023, DOE acknowledged the request for space, but did not offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.  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 the school, in violation of Education Law § 2853 (3) (e).  As relief, petitioner seeks an order directing DOE to pay rental assistance for its grades 3 and 4, commencing in the 2021-2022 school year and continuing thereafter, in accordance with Education Law § 2853 (3) (e) (5).

Respondent admits that petitioner’s grades 3 and 4 were “unsited” (i.e., no longer offered co-located space) from DOE facilities.[3]

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, at no cost to 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, DOE responded to the February 8, 2023 co-location request, but did not offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to the school.  However, in response to the request, DOE was required by Education Law § 2853 (3) (e) (1) to offer petitioner space in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to petitioner.  As DOE has not offered any facilities at the expense of the city school district and at no cost to the school, it failed to comply with the requirements of Education Law § 2853 (3) (e) (1).

The record indicates that petitioner was authorized by its charter entity to expand to serve students in grades 3 and 4, and that such expansions occurred subsequent to the 2014-2015 school year.  Petitioner attests that, as a result of no longer being offered co-located space by DOE, it was compelled to lease space in private facilities for the grades, which respondent does not dispute.  Therefore, on the record before me, I find that petitioner has established that it 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 of 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]).

Therefore, DOE must pay petitioner for its grades 3 and 4, commencing in the 2021-2022 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, in an amount attributable to its expansion to grades 3 and 4 that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

In this instance, petitioner indicates that it has selected an alternative privately-owned site in which to serve its grades 3 and 4.  Petitioner must present DOE with evidence of the amount of the actual rental cost of an alternative privately-owned site attributable to the grade-level expansion 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 DOE 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 for the school’s grades 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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