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Decision No. 16,259

Appeal of KAREN ANDERSON, individually and on behalf of her child KAMARI C. BOBB, et al.,* from action of the New York City Department of Education and the Brooklyn East Collegiate Charter School regarding school utilization.

Decision No. 16259

(July 19, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Martin Bowe, Esq., of counsel

Simon Thacher and Bartlett, LLP, attorneys for respondent Brookyln East Collegiate Charter School, David Woll and Michael G. Freedman, Esqs., of counsel

GREY, Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the Brooklyn East Collegiate Charter School (“BECCS”) (collectively “respondents”) in a public school building.  The appeal must be dismissed.

Much of the factual background relevant to this appeal is set forth in a prior appeal, Appeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212 (“Espinet”), and will not be repeated here.  In Espinet, certain parents of children who attended P.S. 9 Teunis G. Bergen School (“P.S. 9”) challenged BECCS’ co-location with P.S. 9 on the basis that, among other things, an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) issued by DOE on January 21, 2011 (“January 21 EIS and BUP”) failed to comply with the requirements of Education Law §2590-h(2-a) and/or Education Law §2853(3)(a-3).  The majority of petitioners’ claims were dismissed in Espinet.  However, the appeal was sustained because the January 21 EIS and BUP failed to provide a justification of how the proposed shared space allocations for such spaces as the gymnasium and library would result in an equitable and comparable use of the public school building at issue (i.e., the “K009 building”), as required by Education Law §2853(3)(a-3)(2)(C).  Accordingly, the Commissioner annulled the Panel for Educational Policy’s (“PEP”) February 3, 2011 vote approving the co-location of BECCS in the K009 building and prohibited the DOE from “moving forward with any aspect of the proposal regarding the co-location of [BECCS] in the K009 building until DOE complies with the requirements of Education Law §2853(3)(a-3)(2)(C), including the preparation of a new Building Usage Plan....”

As in Espinet, petitioners in this appeal are parents of children who attend P.S. 9 and oppose the co-location of BECCS in the K009 building.[1]  On April 8, 2011, DOE issued a revised EIS (“April 8 EIS”) and a revised BUP (“April 8 BUP”) (collectively “April 8 EIS and BUP”) pertaining to the proposed co-location of BECCS in the K009 building.  In its verified answer, DOE explains that a number of changes were made in the April 8 EIS, including the correction of typographical errors and incorrect information, as well as the insertion of new information, such as references to playground construction, planned repair work at K009 to address flooding and a footnote related to P.S. 9’s out-of-zone enrollment.  In addition, a number of changes were made in the April 8 BUP, including changes to classroom space and proposed shared space allocations in the K009 building, and the addition of information justifying the proposed shared space allocations.  On May 13, 2011, a public hearing was held regarding the April 8 EIS and BUP, and on May 18, 2011, the PEP again approved the proposal to co-locate BECCS in the K009 building.  This appeal ensued.  

Though the petition is not entirely clear, petitioners appear to argue that allowing P.S. 9 to expand to serve grades six through eight in the K009 building as the “P.S. 9 Community”[2] desires would be more beneficial than co-locating BECCS there.  In addition, petitioners contend that the April 8 EIS and BUP are “severely flawed” in a number of respects.[3]  As relief, petitioners request annulment of the May 18, 2011 PEP approval of the co-location of BECCS with P.S. 9 in the K009 building, and that the DOE be enjoined “from further attempts to co-locate charter schools in K009.”

Respondents deny petitioners’ allegations, contend that the April 8 EIS and BUP complied or substantially complied with the Education Law in all respects, and maintain that the shared space allocations in the BUP were properly justified and had a rational basis.  In addition, DOE contends that, to the extent that there are errors in the April 8 EIS or BUP, such errors are deminimus and/or were promptly corrected with no prejudice to petitioners.   In addition, respondents contend that the doctrines of resjudicata and collateral estoppel prohibit petitioners from raising certain claims or issues in this appeal that either were raised or could have been raised in Espinet.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and provides for an expedited process for appeals regarding the location or co-location of a charter school within a public school building in the City School District of the City of New York.  Specifically, the expedited process is available for appeals involving:

the determination to locate or co-locate a charter school within a public school building[,] the implementation of and compliance with the building usage plan developed pursuant to [Education Law §2853(3)(a-3)] ... [and/or] the revision of a building usage plan ... on the grounds that such revision fails to meet the standards set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

I must first address petitioners’ request that the Commissioner “or those in his control” not participate in determining this appeal.  Petitioners cite to Commissioner King’s prior affiliation with Uncommon Schools, a charter school management organization that is affiliated with BECCS.  Because of that prior affiliation, Commissioner King has recused himself and has not taken part in the consideration of this appeal.  Pursuant to Education Law §101 and Regents Rule 3.8(b), in the absence or disability of the Commissioner, I as Executive Deputy Commissioner am authorized to carry out the functions and duties of the Commissioner as Acting Commissioner.  This includes the authority to render decisions in an appeal pursuant to Education Law §310.  I have had no prior involvement with Uncommon Schools, and there is no reason why I am unable to render an impartial decision in this matter.  Accordingly, I need not recuse myself and will determine the appeal.

I must next address a number of procedural issues, beginning with petitioners’ reply and memorandum of law.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §§276.4, 276.11[f]).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,779; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioners’ reply and memorandum of law in this matter, I have not considered those portions containing allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondents’ answers or memoranda of law, or that could have been raised in, or submitted with, the petition.

In addition, DOE submits a letter dated July 7, 2011 (and a corrected letter dated July 8, 2011) for consideration.  The Commissioner may permit the service and filing of additional affidavits, exhibits and other supporting papers in his or her discretion (see 8 NYCRR §276.5).  Petitioners object to these letters which, among other things, challenge the submission of an affidavit from Ellen Goolsby (“Goolsby affidavit”) that petitioners submitted with their reply.  The purpose of the Goolsby affidavit, according to Ms. Goolsby, is to describe a meeting that was held on June 13, 2011 at P.S. 9 between administrators, parents and a DOE deputy chancellor.  However, the petition and notice of petition are dated June 17, 2011, and petitioners do not explain why this affidavit or the information contained therein could not have been submitted with or included in their petition.  Accordingly, to the extent that DOE’s letters challenge the submission of the Goolsby affidavit, I will accept them.  In addition, and for the reasons noted above, I decline to accept the Goolsby affidavit.

Respondents contend that many of petitioners’ claims are barred by the doctrines of resjudicata or collateral estoppel.  Pursuant to the doctrines of resjudicata or collateral estoppel, claims or issues raised in an appeal pursuant to Education Law §310 which are identical to claims or issues that have been adjudicated and dismissed by a court of competent jurisdiction or in a previous appeal brought pursuant to Education Law §310 will not lie (seee.g., Appeal of Reese, 49 Ed Dept Rep 328, Decision No. 16,044; Appeal of Morris, 36 id. 405, Decision No. 13,761; Appeal of a Child with a Handicapping Condition, 31 id. 87, Decision No. 12,579).  Further, pursuant to the doctrine of resjudicata, not only are claims actually litigated precluded, but claims that could have been raised in a previous matter are also barred from being raised (seee.g., In re Hunter, 4 NY3d 260; Appeal of Reese, 49 Ed Dept Rep 328, Decision No. 16,044; Appeal of Smolen, 43 id. 269, Decision No. 15,000).

Here, respondents contend that a number of claims raised by petitioners in this matter are either identical to claims raised in Espinet or are claims that could have been raised in Espinet and, thus, should be dismissed.  However, while the doctrines or resjudicata and/or collateral estoppel may preclude those petitioners in this matter who were also petitioners in Espinet from raising such claims, I note that most of the petitioners in this matter were not petitioners in Espinet.  Consequently, for the doctrines of resjudicata and/or collateral estoppel to apply to these petitioners, it must be shown that they are in “privity” with the individuals who were petitioners in Espinet (seee.g., Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481 [collateral estoppel]; Barash v. Northern Trust Corp, 54 AD3d 383 [resjudicata]; ADC Contracting & Const., Inc v. Town of South Hampton, 50 AD3d 1025 [resjudicata]; Barbieri v. Bridge Funding, 5 AD3d 414 [resjudicata]).  While BECCS contends that such privity exists because the petitioners in this matter claim to represent the interests of a “similarly situated” group of students, and it further claims that the petitioners in both appeals “represent the same group interest, on largely the same grounds,” on the record before me I am unable to find that this alone is sufficient to establish privity or that respondents otherwise have met their burden of showing that privity exists.  Accordingly, since the doctrines of resjudicata or collateral estoppel may, at best, be applicable only to some petitioners in this matter, I decline to dismiss the petition on either basis.

Petitioners’ appeal, however, must be dismissed to the extent that they argue that P.S. 9 should be allowed to expand and/or that such expansion would be better than allowing BECCS to co-locate in the K009 building.  As noted above, this appeal was commenced pursuant to Education Law §2853(3)(a-5).  Accordingly, the scope of the appeal is limited to claims regarding the determination to locate or co-locate a charter school within a public school building, the implementation of and compliance with a building usage plan developed pursuant to Education Law §2853(3)(a-3), and/or the revision of a building usage plan on the grounds that such revision fails to meet the standards set forth in Education Law §2853(3)(a-3)(2)(B) (see Education Law §2853[3][a-5]; 8 NYCRR §276.11[b][1]).  Claims regarding whether or not P.S. 9 should be allowed to expand and/or whether such expansion would be a better alternative to the co-location of BECCS in the K009 building are not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5) and must be dismissed.

In addition, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  It appears from the record that the process of seeking to expand P.S. 9 was not formally commenced until April 13, 2011 via the submission of an “official” letter of intent to the DOE.  Moreover, it is undisputed that no final determination has been made on that request.  To the extent that petitioners raise claims with respect to P.S. 9’s expansion, such claims are premature and, at best, amount to a request for an advisory opinion.  Accordingly, such claims must be dismissed on this basis as well.

Further, petitioners’ appeal must also be dismissed to the extent that they raise claims that pertain solely to M.S. 571, another school co-located with P.S. 9 in the K009 building.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  As noted above, petitioners in this matter are all parents of students who attend P.S. 9 and, thus, lack standing to assert claims that solely affect or pertain to M.S. 571, its students or those in parental relation to its students.

Turning to the merits of petitioners’ remaining claims, Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a) requires the Chancellor of the City School District of the City of New York (“Chancellor”) to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District.  An EIS is required to include:

  1. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;
  2. the impacts of the proposed school closing or significant change in school utilization to any affected students;
  3. an outline of any proposed or potential use of the school building for other educational programs or administrative services;
  4. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;
  5. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;
  6. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and
  7. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status.  Education Law §2590-h(2-a)(b).

Further, pursuant to Education Law §2853[3][a-3], after a public school building has been selected for a proposed co-location of a charter school, the DOE is required to develop a BUP which must be included within the EIS.  At a minimum, the BUP must include:

  1. the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;
  2. a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students;
  3. justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;
  4. building safety and security;
  5. communication strategies to be used by the co-located schools; and
  6. collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee...(Education Law §2853 [3][a-3][2][A-F]).

As noted in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (seealso, Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).[4]  In addition, and also with respect to a BUP, the Commissioner will not substitute judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  Accordingly, absent proof that DOE’s determination regarding the allocation and shared use of space lacked a rational basis, it will not be set aside (Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  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).

As noted above, petitioners contend that the April 8 EIS and BUP are “severely flawed” in a number of respects. Petitioners assert, for example, that the April 8 EIS and BUP were required, but failed, to reference the P.S. 9 community’s desire to expand P.S. 9.  Specifically, petitioners suggest that the requirement in Education Law §2590-h(2-a)(b)(iii) that an EIS contain “an outline of any proposed or potential use of the school building for other educational programs or administrative services” means that any potential use of a building proposed by them (or,  presumably, anyone for that matter) must be addressed in an EIS.  I disagree.

Education Law §2590-h(2-a)(b)(iii) must be read as a part of Education Law §2590-h(2-a) which mandates the preparation of an EIS prior to any “proposed school closing or significant change in school utilization” by DOE (see Education Law §2590-h[2-a][a]).  As previously noted, the purpose of requiring that an EIS be created prior to a school closing or significant change in school utilization is to provide sufficient information to the public to inform their comments on the proposal (seeAppeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  To that extent, an EIS need not contain information regarding every possible use of a school building; rather, it must provide information on how DOE proposes to use a particular building such that the public can ask informed questions (or make informed comments) on matters such as the proposal’s effect on space allocation or space usage in that building.  Accordingly, Education Law §2590-h(2-a)(b)(iii)’s requirement that “any proposed or potential use of [a] school building for other educational programs or administrative services” be outlined in an EIS does not require that any proposed or potential use of a building be addressed in an EIS, regardless of who proposes it. Instead, the statute merely requires that an EIS contain information regarding all educational programs or administrative services that will be located in a building that may be relevant to a proposal being submitted by the DOE for public review and comment.  Petitioners’ claim that the April 8 EIS and BUP were required to discuss the P.S. 9 Community’s desire to expand P.S. 9, therefore, lacks merit.

In addition, petitioners argue that the April 8 EIS and BUP are flawed because they did not “adequately address the impact of [BECCS’] co-location [in the K009 building] on current and future P.S. 9 enrollment.”  Specifically, petitioners contend that demand for P.S. 9 seats is “skyrocketing,” that this situation - combined with the loss of space in the K009 building taken up by BECCS - will mean that P.S. 9 eventually will only be able to offer seats to students who live within both the district and zone in which P.S. 9 is located (i.e., that “out-of-zone” District 13 students will be denied seats at P.S. 9), and that this issue was not “properly explored” in the April 8 EIS and BUP.

However, while an EIS is required to address issues such as the impact of a proposed co-location on affected students and its ramifications upon the community (see Education Law §§2590-h[2-a][b][i] and [ii]), DOE is afforded a considerable measure of discretion in determining how best to do this in light of the statute’s purpose (i.e., to inform public comment) (seee.g., Mulgrew v. Bd. of Educ. of the City School District of the City of New York, 75 AD3d 412; Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  Here, the April 8 EIS explicitly notes that “[t]o ensure that there continues to be sufficient space in K009 for P.S. 9 and [BECCS] at full scale, beginning in 2012-2013, P.S. 9 will need to more closely monitor its kindergarten enrollment to ensure that it only enrolls students residing in the school’s designated geographic zone.”  This information is both relevant to the impact that BECCS’s co-location may have on out-of-zone District 13 students and sufficient to inform public comment.  Moreover, there is no requirement that the impact of a co-location be addressed in a BUP.  Accordingly, I cannot find that DOE abused its discretion with respect to this issue and petitioners’ claim, therefore, lacks merit.

Further, petitioners argue that the April 8 EIS and BUP are flawed because they do not “adequately analyze” the impact of the shared space allocations proposed by the DOE or “adequately justify” the allocations.  Specifically, petitioners contend that the April 8 BUP incorrectly lists the start of P.S. 9’s school day as 7:45 a.m. rather than 8:40 a.m., that the April 8 BUP allocates library, playground and auditorium time to P.S. 9 prior to the start of its school day without addressing the impact of “opening school early” on students and personnel, and that the April 8 BUP gives P.S. 9 cafeteria time beginning at 10:30 a.m., while giving BECCS “prime cafeteria time” from 12:00 p.m. to 12:45 p.m. which “forces P.S. 9 teachers to interrupt their morning of teaching before even 2 hours have passed.”  I find that none of these claims have merit.

As an initial matter, the record reflects that the April 8 BUP does list the correct start time of P.S. 9’s school day as 8:40 a.m. – not 7:45 a.m., as petitioners contend.  In addition, while the April 8 BUP gives P.S. 9 some library, playground and auditorium time prior to the start of its school day (which, I note, should not be used for the statutory purpose of calculating equitable allocation of these spaces [seeAppeal of McCall, 51 Ed Dept Rep, Decision No. 16,257]), the record reflects that this is not the only time each day allotted for P.S. 9’s use of these areas.  Further, DOE explains that the early time is allocated to P.S. 9 to provide an area for use by students who are there for breakfast – which the April 8 BUP notes will be served at 7:45 a.m. as it was in the 2010-2011 school year.  Accordingly, other than petitioners’ conclusory assertion that there will be an impact upon students and personnel as a result of “opening school early,” there is no evidence in the record before me that such is the case and, thus, I must find that petitioners have not met their burden on this issue.

In addition, according to the April 8 BUP, DOE made proposed space allocations in the K009 building based upon a number of factors, including the projected enrollment of each school, current space allocation plans, current lunch schedules for the existing schools in the building, the total capacity of each shared space, and the grades served by each of the co-located schools.  In addition, the April 8 BUP reflects that, because P.S. 9 had the highest projected enrollment of any school in the K009 building and would be serving the greatest number of grades, it was generally allotted the largest amount of time in shared spaces, including the library, playground, cafeteria and auditorium.[5]  In fact, even after omitting time allocated to P.S. 9 prior to the start of its school day, the April 8 BUP gives P.S. 9 more total time in the library, playground, cafeteria and auditorium than any other school in the K009 building, and I am unable to conclude that the time allotted to P.S. 9 in these areas is insufficient.  Accordingly, to the extent that petitioners may argue that the April 8 BUP does not adequately justify the proposed shared space allocations for the library, playground, cafeteria and auditorium, I must disagree and again find that they have failed to meet their burden on this issue.

Finally, with respect to giving P.S. 9 cafeteria time starting at 10:30 a.m., the record reflects that this is approximately the same time that P.S. 9 began serving lunch in the 2010-2011 school year.  In fact, the April 8 BUP indicates that, among other things, DOE proposed giving P.S. 9 cafeteria time beginning at 10:30 a.m. precisely because P.S. 9 was already serving lunch at 10:25 a.m. in the 2010-2011 school year.  Therefore, while petitioners suggest that starting lunch at 10:30 a.m. is too early and would “interrupt” teachers, they offer no proof to support or explain this claim.  Accordingly, I must find that petitioners failed to meet their burden.

Petitioners also claim that the April 8 EIS and BUP are flawed because they do not adequately address the impact of “necessary capital improvements upon K009,” including improvements undertaken to remove asbestos and PCBs, to address flood alleviation, and to construct a new playground at the K009 building.  I disagree.

With respect to petitioners’ claims regarding asbestos and PCB removal, the record reflects that, while this work may impact the K009 building over the summer, it is scheduled to be completed before the start of P.S. 9’s school year.  Accordingly, I am unable to find from the record that this work will impact P.S. 9 any more than it would have absent the proposed co-location such that it was required to be addressed in the April 8 EIS and BUP.[6]

With respect to petitioners’ claims regarding flood alleviation and playground construction, the April 8 EIS discloses that work to address both flooding problems in the K009 building and the construction of a new playground will be performed during the 2011-2012 school year.[7]  In addition, the April 8 EIS notes that this work will be coordinated to ensure minimal impact on the schools in the K009 building and that, because K009 is currently underutilized and will continue to be underutilized in the 2011-2012 school year, there will be “swing space” available to minimize any disruption that these projects may cause.  The April 8 EIS also notes that there is a public playground located three blocks away from K009 which the schools can use while a new playground is being constructed.  Therefore, while petitioners contend that these projects will “severely restrict the space available to the co-located schools” and make a number of allegations regarding the alleged impact that the playground work will have on P.S. 9 and its surrounding community,[8] I find that they have failed to prove these allegations.  Therefore, I am unable to find that DOE failed to properly analyze the impact of these projects and/or that it otherwise abused its discretion with respect to this issue.

Petitioners next claim that the April 8 BUP is flawed because it “does not properly accommodate the school based support team [and] special needs services (‘SBST’).”  Although not clearly articulated, petitioners appear to contend, in part, that the April 8 BUP was required to provide a detailed explanation of the space needs of individual student populations at P.S. 9, including students with disabilities and “at risk” students.  However, the information required by the statute for a BUP requires information pertaining to charter and non-charter school students in general and, although the space needs of students with disabilities and other students who may need additional support or services should be considered in determining the classroom and shared space allocations in a building, the statute does not specifically require that the BUP contain a detailed analysis regarding each student subgroup within a school (seeAppeal of Litichevsky, 50 Ed Dept Rep, Decision No. 16,254).  Accordingly, the fact that the April 8 BUP does not specifically mention student subgroups (or “special services” as petitioners contend) does not, by itself, establish non-compliance with the statute.

Petitioners also appear to allege that the April 8 BUP does not allocate enough space to P.S. 9 for the provision of special education or “at risk” services.  However, other than asserting in conclusory fashion that the April 8 BUP does not accommodate these services and that P.S. 9 “will likely need more room to provide students with special services,” petitioners do not explain how P.S. 9 classroom space allocation, as described in the April 8 BUP, is insufficient with respect to “special services,” nor do they offer any proof that such is the case.  In contrast, I note that the April 8 EIS states that students with “Individualized Education Plans (sic)” (“IEPs”) will continue to receive mandated services in accordance with those IEPs, and it explicitly provides that certain existing special education classes will continue to be provided at P.S. 9.  In addition, I cannot conclude that the April 8 BUP failed to account for the needs of students with disabilities for purposes of allocating space.[9]  I, therefore, find that petitioners have failed to carry their burden with respect to these claims.

Petitioners further argue that the April 8 EIS and BUP are flawed because they “ignore Woodhull Mental Health Center’s crucial role in the P.S. 9 community.”  Specifically, petitioners contend that the Woodhull Mental Health Center (“Woodhull”), which they describe as a “school-based mental health program on K009’s second floor,” is not referenced in the April 8 EIS or BUP (which DOE admits) and that, therefore, neither contains any “meaningful information regarding the impact of the co-location on Woodhull or its patient population.”  However, while DOE was required to consider the existence of Woodhull in the K009 building for purposes of making space allocations in that building and, for clarity, should have mentioned it in the April 8 EIS or BUP, petitioners have failed to establish that Woodhull’s existence in the K009 building was not considered by DOE and factored into the allocation of space in the building.  Further, DOE contends, and petitioners do not dispute, that Woodhull will continue to be allocated the same amount of space that it currently occupies in the K009 building (which DOE contends is 1.0 full-sized administrative/office space) and that, as a result of the co-location, it will not need to diminish the services it provides.  I cannot find that the failure to mention Woodhull in the April 8 EIS and BUP had any affect on space allocation in the K009 building, or that it prejudiced petitioners in any way.  Accordingly, I find that this omission was deminimus, and that it does not preclude a finding that DOE substantially complied with the requirements of Education Law §§2590-h(2-a) or 2853(3)(a-3).

Finally, petitioners contend that the April 8 EIS and BUP are flawed because they do not adequately address the co-location’s affect on personnel needs.  Specifically, petitioners assert in conclusory fashion that BECCS’s co-location and/or some of the space allocation decisions made by DOE will require additional teachers or staff at P.S. 9 or place “unreasonable supervision and logistical demands” on them for various reasons, and that these effects are not addressed in the April 8 EIS and BUP.  However, while Education Law §2590-h(2-a)(b)(iv) requires that an EIS include information on, among other things, the effect that a co-location will have on personnel needs, petitioners offer no evidence to support their contentions or demonstrate that they will actually occur as a result of the proposed co-location.  Accordingly, I conclude that petitioners have failed to carry their burden with respect to these claims.[10]

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

[1] The petitioners in Espinet are also petitioners in this appeal.  However, there are also a number of other petitioners in this appeal who were not petitioners in Espinet.

[2] Petitioners define the “P.S. 9 Community” as “all the District 13 stakeholders of P.S. 9’s past, present, and future, including, without limitation, students, parents, teachers, administrators, neighbors, and all others committed to growing P.S. 9.”

[3] Petitioners indicate in a footnote in their petition that there is an EIS dated April 14, 2011.  However, petitioners do not raise any claims regarding this EIS (which is not in the record), and it is not relevant for purposes of this appeal.

[4] Petitioners contend that the appropriate standard of review should be strict compliance and, essentially, request that I revisit this issue herein.  However, petitioners raise no legal basis warranting the revisitation of this issue.

[5] The April 8 BUP indicates that P.S. 9 was not allocated any time in the “science demonstration lab” in the K009 building.  However, the record reflects that this room in typically used only by middle school students (which P.S. 9 does not currently serve) and is not relevant for purposes of this appeal.

[6] Petitioners contend that construction schedules for the K009 building are “often inaccurate” and “usually end far beyond their projected finish date.”  However, there is nothing in the record on which to conclude that such is the case with respect to any of the capital projects – including the asbestos and PCB abatement work - described in the petition.

[7] I also note that these issues are addressed in the April 8 BUP.

[8] Petitioners, for example, contend that the playground construction, coupled with P.S. 9’s reduced access to the gym, will cause P.S. 9’s ability to meet physical education requirements to be “cramped and severely limited, if possible at all.”  In addition, petitioners suggest that the use of the public playground by schools in the K009 building will impact the Prospect Heights Community by leading to overcrowding and “use of the playground by disparate age groups.”

[9] The BUP, for example, indicates that the DOE applied its instructional footprint (“footprint”) to each of the schools to be co-located in the K009 building to allocate rooms in an unbiased manner.  This footprint, according to the April 8 BUP, sets forth the baseline number of rooms that should be allocated to a school based on the grade levels served by the school and the number of classes per grade.  Among other things, the April 8 BUP explains that the footprint allocates one full-sized classroom for each general education or Collaborative Team Teaching section, and a full-sized or half-size classroom to accommodate each self-contained special education section served by the school.  In addition, the April 8 BUP indicates that the DOE adjusted P.S. 9’s baseline allocation to give it additional space to accommodate its self-contained classes, and it further states that while the footprint sets forth a baseline space allocation, school leaders are empowered to make decision about how to utilize the space that is allocated to each school.  Moreover, according to the April 8 BUP, the DOE will provide support to the schools to ensure that they use space efficiently in order to maximize capacity to support student needs and maintain appropriate delivery of special education and related services to students.  Petitioners do not allege, nor is there any indication in the record, that DOE misapplied or deviated from its footprint when allocating space to P.S. 9.

[10] The April 8 EIS states, among other things, that the “proposed re-siting and co-location is not expected to change the number of personnel positions assigned to P.S. 9, nor is it expected to significantly alter the duties of current staff at P.S. 9, although [BECCS] may hire additional personnel to support its grade expansion.”

* The following people are also listed as petitioners:  CATHERINE BIRCH, individually and as parent and natural guardian of SAYER BIRCH; ANDRE BOTHMA, individually and as parent and natural guardian of ELENA BOTHMA, infant, and THEO BOTHMA, infant; KIRSTEN COLE and DAVID FRACKMAN, individually and as parents and natural guardians of MAXWELL FRACKMAN, infant; JENNIFER ELSPETH CHAPIN, individually and as parent and natural guardian of MACEO DUVA CRUMP, infant; ROLAND CHARLES, individually and as parent and natural guardian of SHANE CHARLES, infant; NOLENS DARBOUZE and DIANNE DARBOUZE, individually and as parents and natural guardians of ANGELIE DARBOUZE, infant; ANDREW DRAPER, individually and as parent and natural guardian of GEORGIA DRAPER, infant, and ELIJAH DRAPER, infant; IVANA ESPINET, individually and as parent and natural guardian of MATEO TAYLOR, infant; PORTIA SHARON GIM LEN FONG, individually and as parent and natural guardian of RACHEL MEI KELLY, infant; RACHEL ANNE FRANK, individually and as parent and natural guardian of EVELYN TIGHE WORCESTER, infant; JANE HARNICK and ADAM FREIFELD, individually and as parents and natural guardians of ROXIE FREIFELD, infant; REBECCA SHULMAN HERZ and NATHANIEL HERZ, individually and as parents and natural guardians of CHARLOTTE HERZ, infant, and ALEXANDER HERZ, infant;  CAROL SHELDRAKE HERNANDEZ, individually and as parent and natural guardian of KAYDEN SHELDRAKE HERNANDEZ, infant; CHARISE HILL-WILKINS, individually and as parent and natural guardian of MYLES WILKINS, infant; LAURA JAFFE, individually and as parent and natural guardian of HENRY JAFFE, infant; CATHERINE JHUNG, individually and as parent and natural guardian of SHANNON HICKEY, infant; LEANDRE M. JOHN II, individually and as parent and natural guardian of LEANDRE JOHN, infant; STEPHANIE KEITH and TOR EKELAND, individually and as parents and natural guardians of SIGRID EKELAND, infant; KELLIE KNIGHT, individually and as parent and natural guardian of PROPHET LEE DAVISON, infant; DIANA KYU LEE and TODD JEREMY HUFFMAN, individually and as parents and natural guardians of KEIRA LEE HUFFMAN, infant; JONATHAN LUONGO, individually and as parent and natural guardian of LIONEL LUONGO HIGGINBOTHAM, infant; PATRICIA MADLANGBAYAN and JOSHUA SAMUEL GOLDBERG, individually and as parents and natural guardians of MALAYA ESQUIERES GOLDBERG, infant, and PABLO ESQUIERES GOLDBERG, infant; PENELOPE MAHOT, individually and as parent and natural guardian of BEATRIX STEWART-STAND, infant; JOLENE MCAULEY, individually and as parent and natural guardian of CALEB TOPPIN, infant; MARIA MCGRATH, individually and as parent and natural guardian of WASHINGTON MCGRATH, infant; CHRISTOPHER ALAN MEISSNER and ALEXIS ANN VASQUEZ MEISSNER, individually and as parents and natural guardians of GRAYDON ANDREW MEISSNER, infant; SHELBY MITCHELL, individually and as parent and natural guardian of JOLIE SAINT VIL, infant; FIONA BRIDGET NOYES, individually and as parent and natural guardian of CONNOR LELEAND NOYES; VINCENT ANTHONY PALMER, individually and as parent and natural guardian of SANDRA SARAI PALMER, infant, and REBECCA MICHELL PALMER, infant; DEBBYE V. TURNBULL PHILLIP, individually and as parent and natural guardian of KYJAHMY D. PHILLIP, infant; FAYE NIKOLAIDIS RIMALOVSKI, individually and as parent and natural guardian of NICOLAS CHARLES RIMALOVSKI, infant; LISA SANTOS, individually and as parent and natural guardian of CHRISTIAN VEGA, infant, and TRISTAN VEGA, infant; CYNTHIA YAHIA and MATTHEW CURINGA, individually and as parents and natural guardians of  DIEGO ROCCO YAHIA CURINGA, infant; MATEO IVAN ZLATAR and PAZ ANDREA GUZMAN, individually and as parents and natural guardians of MILA ZLATAR-GUZMAN, infant; and all others similarly situated.

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