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Decision No. 16,289

Appeal of WAYNE COLLIER, on behalf of his children ETHAN and ALTHEA, REBEKAH HAMMONDS, on behalf of her children NEHANDA, TOUSSANT, MAROON and THANDIWE, ABIGAIL S. MILLER, on behalf of her son ADAM, AISHAH ABDULLAH-YISHRAEL, on behalf of her daughter ALIYYAH, NAJAH VELAZQUEZ, on behalf of her children VINCENT and KENNETH, and VICTORIA GEORGE, on behalf of her children CALVIN and KELVIN, from action of the New York City Department of Education and the East Harlem Scholars Academy Charter School regarding school utilization.

Decision No. 16,289

(August 18, 2011)

Marcia Lynn Sells, Esq., attorney for petitioners

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

KING, JR., Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the East Harlem Scholars Academy Charter School (“EHSA”) (collectively “respondents”) in a public school building.  The appeal must be dismissed.

Petitioners are parents of children who attend schools located in the Jackie Robinson Educational Complex Building (“M013”).  M013 houses Central Park East 1 elementary school (“CPE 1”), Jackie Robinson JHS 13 (“J13”) and Central Park East High School (“CPEHS”).  On February 5, 2011, DOE issued an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3) that was later amended on February 17, 2011 (collectively the “February 17 EIS”).  Among other things, the February 17 EIS proposed that, in the 2011-2012 and 2012-2013 school years, EHSA would be “temporarily” co-located in M013 with the three DOE schools.  On March 22, 2011, a public hearing was held regarding the February 17 EIS.  On March 23, 2011, the Panel for Educational Policy (“PEP”) voted to approve the February 17 EIS.

On or about April 21, 2011, petitioners appealed the PEP’s March 23 vote.  Thereafter, DOE submitted a letter dated May 2, 2011 stating that it would revise the February 17 EIS, hold a public hearing and PEP vote, and not take any action based on the prior March 23 PEP vote.  Subsequently, petitioners withdrew their appeal.

On May 13, 2011, DOE issued an EIS and BUP (collectively the “May 13 EIS”) that made changes to the February 17 EIS.  The May 13 EIS included changes in the adjusted projected enrollment for CPEHS, the total number of students projected to be served by all four schools in M013, the projected building utilization rate for the following school year and additional information on extracurricular activities and the admissions process at CPE 1, J13 and CPEHS.  It also included changes to the number of students that CPEHS is projected to serve, the number of sections CPEHS will program to serve its students, CPEHS’s baseline allocation of space in future years, the allocation of space among all of M013's schools, CPE 1’s baseline allocation, and proposed shared space schedule with more clarification of the rationale for the amount of time that each co-located school is allocated in the shared spaces.  It also noted the floors on which each school would be located.  On June 6, 2011, a public hearing was held on the May 13 EIS and, on June 27, 2011, the PEP approved the proposal.  This appeal ensued.

Petitioners contend, among other things, that DOE failed to comply with the substantive requirements of Education Law §§2590-h(2-a) and 2853(3)(a-3) in a number of respects.  In addition, petitioners assert that the May 13 EIS is a new proposal which was not made publicly available at least six months prior to the first day of school, as required by Education Law §2590-h(2-a)(c) and, further, that no “emergent situation” existed.  Petitioners also allege that DOE failed to comply with the notice and filing requirements of Education Law §2590-h(2-a).  Petitioners request that I annul the June 27, 2011 PEP vote.[1] 

In its verified answer, DOE asserts that the May 13 EIS is not a “new proposal” but is only a revision of the February 17 EIS.  DOE contends that the May 13 EIS complies with the Education Law in all respects, and that any errors in the EIS or the BUP are deminimus.

I must first address several procedural issues, beginning with petitioners’ memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  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. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioners’ memorandum of law in this matter, I have not considered those portions containing additional allegations or exhibits that could have been raised in, or submitted with, the petition.

In their reply, petitioners prospectively assert that the charter school’s answer -- not yet served at the time of the reply -- would be untimely and, if received, should not be considered.  Commissioner’s regulation §275.8(a) requires that service must be made upon each named respondent.  An answer in a charter school co-location appeal must be served within ten business days of service of the petition (8 NYCRR §276.11[e][1]).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (8 NYCRR §276.11[e][1]).

The record indicates that, on July 18, 2011, petitioners served Cohen Schneider, LLP, as attorneys for EHSA.  However, by letter dated July 27, 2011, Cohen Schneider, LLP indicated that it was not authorized to accept service on behalf of EHSA.  Petitioners re-served the charter school on July 26, 2011, and EHSA served its answer on August 9, 2011, admitting service on July 26, 2011.  While petitioners correctly note that EHSA’s answer was served more than the ten business days after petitioners’ attempt to serve Cohen Schneider, LLP on July 18, 2011, the charter school’s answer was served within the ten business days of admitted service on the charter school on July 26, 2011.  Therefore, respondent charter school’s answer is timely and I have considered it.

Petitioners’ appeal must be dismissed to the extent that they raise claims that pertain solely to J13, another school co-located with CPE 1 and CPEHS in the M013 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).  Petitioners in this matter are all parents of students who attend CPE 1 or CPEHS and, thus, lack standing to assert claims that solely affect or pertain to J13, its students or those in parental relation to its students.

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]).

Petitioners’ appeal must be dismissed to the extent that they argue that CPE 1 should be allowed to expand and/or challenge DOE’s decision not to allow CPE 1 to expand.  As noted above, 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 a school should be allowed to expand and/or whether such expansion would be a better alternative to the co-location of EHSA in the M013 building are not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5) and must be dismissed (seeAppeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259).

Turning to the merits of petitioners’ remaining claims, Education Law §2590-h(2-a) was added 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, 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, Appeal of Anderson, et al., 51 Ed Dept Rep, Decision No. 16,259; Appeal of Espinet, et al., 50 id., Decision No. 16,212).  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 Anderson, et al., 51 Ed Dept Rep, Decision No. 16,259).  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 Anderson, et al., 51 Ed Dept Rep, Decision No. 16,259).  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).

Petitioners claim that the May 13 EIS is flawed in a number of respects.  For example, petitioners contend that the May 13 EIS does not “define plans for EHSA’s exit” from the M013 building or include any other information to indicate that EHSA will move out of the building at the end of its proposed two-year co-location.  However, petitioners provide no legal authority to support the contention that an EIS is required to contain such information, and Education Law §2590-h(2-a)(b), which sets forth what an EIS must include, contains no such requirement.  Accordingly, I find that petitioners’ contention lacks merit.

In addition, petitioners raise a number of challenges to the May 13 EIS that relate to space allocation.  For example, although not clearly articulated, petitioners appear to claim that the May 13 EIS fails to comply with the “minimum requirements” of Education Law §2853(3)(a-3); namely that it fails to provide information regarding “[t]he actual allocation and sharing of classroom and administrative space between the charter school and non-charter schools.”  However, contrary to petitioners’ assertion, the May 13 EIS and BUP provide detailed information regarding the actual allocation of classroom and administrative space for all four schools under the co-location proposal.  Accordingly, I am unable to find that this claim has merit.

In addition, petitioners contend that the “May-EIS lacks any description of how the shared spaces will be used.”  While Education Law §2853(3)(a-3)(2) requires, among other things, that a BUP include a proposal for the collaborative use of shared space between a charter school and non-charter school in a shared building, the BUP prepared by DOE, and included within the EIS filed on May 13, 2011, does this for EHSA, CPE 1, J13 and CPEHS.  Accordingly, I find that petitioners’ contention lacks merit.

Finally, petitioners raise a number of challenges to the actual proposed allocation of shared spaces in the May 13 EIS.  However, decisions on the allocation of space in a school building containing multiple schools are complex, with needs changing over time, as programs and enrollment change.  Such decisions necessarily involve pedagogical judgments and cannot reasonably be expected to be made with scientific precision.  For those reasons, such decisions, like decisions on school closings, must be left to the sound discretion of local school officials, in this case DOE.  Accordingly, I will not substitute my judgment for that of DOE in determining whether the allocation and shared use of space in a building usage plan result in equitable and comparable use of the building.  Absent proof that DOE’s determination lacked a rational basis, it will not be set aside (cf. Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).

Petitioners, for example, contend that the gymnasium, cafeteria, outdoor recreation area and auditorium must be shared among the co-located schools and complain that the EIS contains only “a series of vague, general statement [sic] regarding the implementation of the co-location, stating only that ‘[decisions] regarding the programming of shared spaces in M013 will be made by school leaders.[’]”  I find no merit to such claim.  Contrary to petitioners’ assertions, the BUP contains a detailed proposal for the use of shared spaces including a table indicating the amount of time per week each co-located school would have access to the cafeteria, library, gymnasium, auditorium and playground.  The BUP also provides a justification for how the proposed allocations result in “equitable and comparable” use as required by the statute.  For example, the BUP explains that the proposal “maintains each school’s current use of the shared spaces ... and/or calls for each school to use a given shared space in proportion to its enrollment; thus, the DOE believes the plan treats all schools equitably and comparably.  The Building Council is empowered to make alternative arrangements to the ... proposal.”

The gravamen of petitioners’ claim regarding the shared space plan appears to be centered on the use of the gymnasium.  First, petitioners assert that the proposal “lacks any information” relating to the co-location’s impact on physical education graduation requirements.  However, as DOE notes, the BUP clearly provides that “CPEHS is allocated time in the gymnasium based on its current schedule.  CPEHS is allocated 22.5 hours per week (5 of those hours are shared) because it will serve the largest number of students and because its students must meet certain graduation requirements for physical education.”  In its discussion of the allocation of playground space, the BUP further notes that CPEHS is “allocated the least amount of time [for playground use] relative to its enrollment, but its physical education requirements are fully met through its gymnasium allocation.”  Petitioners offer no evidence to suggest that the amount of time allocated to CPEHS is insufficient to meet the physical education requirements for graduation.  Accordingly, I find that petitioners have failed to carry their burden with respect to this claim.

Although not clearly articulated, petitioners also appear to claim that DOE’s proposal relies on a parent-funded ice-skating program as a justification for limiting CPE 1’s access to the gymnasium and other shared recreational spaces.  Petitioners claim that the EIS “notes that CPE 1 students [use an off-site ice rink] as a way to construct physical education activities away from the building.  However, it fails to note that this skating program is only possible, because parents at CPE 1 raise money beyond the CPE 1 DOE budget allocation to pay for such a program.”  In an affidavit in support of the petition, petitioner Collier asserts that DOE relies on such program “as a rationale for reducing CPE 1’s use of shared spaces such as the playground or the gym.”

However, contrary to petitioners’ assertions, the EIS specifically refers to the ice-skating program as one of CPE 1’s existing “academic, instructional, extracurricular and partnership programs” which is “currently funded through funds raised by CPE parents.”  Nor does the record support petitioners’ contention that the proposal reduces CPE 1’s gymnasium and playground access in reliance on this program.  Indeed, the BUP clearly notes:

Based on the 2010-2011 gymnasium schedule, CPE I is currently not allocated any time in the gymnasium because it currently utilizes the dance room, which is part of its room allocation, to satisfy gym requirements.  CPE I also utilizes the playground and other facilities to provide physical education instruction.  However, the proposed schedule ... provides CPE I with 5 hours per week in half of the gymnasium.  In order to ensure that CPE I still provides recess in the event of inclement weather, CPE I has been allocated ½ the gym during its lunchtime.  It is also allocated ½ of the gym between 2:00-2:30 pm each day.

The BUP also states that CPE 1 is “scheduled to use the playground during more time than it currently uses it in the 2010-2011 school year.  CPE I is allocated 16.25 hours per week.  East Harlem Scholars is allocated 7.5 hours per week....  A portion of CPE I’s playground time is currently successfully shared with J13.  We anticipate that the two schools will continue to share the time successfully next year.”  Accordingly, I find no merit to petitioners’ claims regarding the allocation of shared spaces in relation to physical education requirements.

Petitioners also allege that the May 13 EIS fails to “assess the impact of morning lunch period [sic] on CPEHS students.”  To the extent petitioners attempt to challenge the allocation of shared spaces for breakfast, I find no merit to such claim.  While the BUP proposes that J13 and CPEHS eat breakfast together, it also states that “[h]istorically, not all students have opted to participate in the breakfast program and therefore the DOE believes that the time allocated to each school will be sufficient to serve breakfast.”  The BUP notes that, in 2010-2011, only 94 J13 students participated in the breakfast program.  Accordingly, I find that the BUP sufficiently addresses M013’s capacity to serve breakfast to CPEHS students and that petitioners have failed to carry their burden with respect to this claim.

Petitioners state that the “joint lunch schedule for CPEHS students and J13 will not leave much space or time for them to eat.”  However, petitioners do not clearly explain why they believe this to be the case.  By contrast, DOE asserts that the cafeteria has the capacity to accommodate 375 students and that, under the proposed schedule, “at no point will the capacity of the cafeteria in the building be exceeded.”  The BUP also explains that the proposed lunch schedule is “consistent with the current lunch schedule for the 2010-2011 school year” and that, as noted above, the Building Council is empowered to make alternative arrangements if necessary.  Further, the record indicates that CPEHS and J13 will both be given two lunch periods that they will share,[2] and that based on each co-located school’s projected enrollment as outlined in the EIS (which petitioners do not dispute), it appears that the cafeteria will be able to accommodate this usage.  Accordingly, I find that the BUP adequately explains the allocation of cafeteria space, and that petitioners have not carried their burden with respect to this claim.

Petitioners also contend that the May 13 EIS is deficient because, under the co-location proposal, CPE 1 will not have sufficient space to provide services to students with disabilities.[3]  Petitioners further assert that the co-location proposal will require CPE 1 to abandon plans to provide additional space to Harlem Family Institute (“HFI”), a community based organization, to provide occupational therapy services to its students.

As noted above, petitioners bear the burden of proof in an appeal to the Commissioner.  The May 13 EIS discusses the capacity of building M013 and indicates that CPE 1 will actually gain space under the co-location proposal as compared to its current use.  It further provides that the proposed co-location would have no impact on the types of classes and mandated services afforded to students with disabilities other than that therapy for some students may need to be provided in a different part of the building than where it is currently offered.  The May 13 EIS also indicates that HFI would continue to occupy one half-size classroom in the building and DOE explains that CPE 1 may allocate space from its own allocation if it wants to proceed with plans to afford HFI additional space to provide services to its students.  Petitioners speculate that the co-location will adversely impact CPE 1’s students with disabilities, but have offered no proof that such is the case.  Based on the record before me, I find that petitioners failed to meet their burden of proof on this issue.

Petitioners further argue that the May 13 EIS is flawed because it “provides no information on potential impact on personnel to service all students in M013 with special needs or IEP’s.”  However, the May 13 EIS expressly addresses personnel in the schools to be located in the M013 building, stating that the proposed co-location “is not expected to change the number of personnel positions assigned to J13, CPE 1, or CPEHS, nor is it expected to significantly alter the duties of current staff ....”  In particular, petitioners suggest that access to a school-based psychologist will be reduced as a result of EHSA’s co-location (and that this will have a “negative impact” on the education of students with special needs).  Petitioners offer no evidence from which I can conclude that such is the case.  The May 13 EIS provides that the co-location of EHSA “will not place additional burdens on non-pedagogical positions at [J13, CPE 1, or CPEHS], including members of the School Based Support Team.”  The record indicates that the school-based psychologist is a member of the M013 School Based Support Team and that EHSA will not have access to the team.  Accordingly, I find that petitioners have failed to carry their burden with respect to these claims.

Petitioners also allege that the co-location proposal will negatively impact CPE 1’s educational program, citing CPE 1’s focus on outdoor activity and its practice of scheduling outdoor time for students at least two times a day.  Assuming petitioners are referring to CPE 1’s access to the playground, according to the BUP, “CPE I is scheduled to use the playground during more time than it currently uses it in the 2010-2011 school year” (emphasis added).  The BUP indicates that CPE 1 students will have access to the playground four times each day.  Moreover, the May 13 EIS states that “the proposed co-location of [EHSA] is not expected to impact current or future student enrollment or instructional programming at J13, CPE I or CPEHS.”  Petitioners offer no evidence to the contrary or to otherwise support their contention.  Accordingly, I find that petitioners have not met their burden on this issue.

Petitioners also contend that “[t]he EIS lacks information concerning potential or proposed uses for M013 by CPE 1.”  Specifically, petitioners seem to assert that the May EIS should have mentioned the expansion requests by CPE 1.  However, there is no requirement that an EIS 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 (seeAppeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259).  Accordingly, to the extent that petitioners suggest that the EIS was required to mention request(s) to expand CPE 1, I find that their claim lacks merit.

Moreover, petitioners contend that the EIS “failed to assess the impact of the denial of CPE 1’s grade extension on the Community School District 4 families applying for middle school.”  As stated above, 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).  Here, the EIS clearly explains that, under the co-location proposal, EHSA would be located in the M013 building for two years.  This was sufficient to inform the public that the proposal would impact grade expansion requests related to any of the co-located schools for that period and to inform public comments on this issue.  In fact, the record indicates that public comment regarding CPE 1’s desire to expand were made at the joint public hearing on June 6 and prior to the PEP vote.  Accordingly, I find that the May 13 EIS and BUP were sufficient to inform public comment with respect to CPE 1’s expansion request and thus, petitioners’ claim lacks merit.

Petitioners appear to further contend that the EIS was required to contain certain data trends.  In support of this contention they cite to “Chancellors Regulation 190.”  While the Chancellor’s Regulations do contain a section A-190, I note that petitioners fail to indicate where in the regulation such requirement exists.  Indeed, DOE states that no such requirement exists.  Accordingly, I find that that petitioners have failed to meet their burden on this issue.

Finally, petitioners assert that, because “DOE pulled the March 23, 2011 PEP proposal and vote,” the changes to the EIS and BUP in May 2011 were in response to petitioners’ appeal, rather than to any public comment.  Petitioners maintain that the May 13 EIS was therefore a new EIS which was required to be filed at least six months in advance of the first day of school in the 2011-2012 school year.  I disagree.

In addition to the requirements noted above, Education Law §2590-h(2-a) prescribes a number of notice and filing requirements that DOE must comply with.  For example, Education Law §2590-h(2-a)(c) requires that an EIS be filed “at least six months in advance of the first day of school in the succeeding school year.”  However, Education Law §2590-h(2-a)(d-1) specifically authorizes the Chancellor, after receiving “public input,” to substantially revise a proposed school closing or significant change in school utilization “[s]o long as the revised proposal does not impact any school other than a school that was identified in the initial [EIS]” and is published and filed in the same “manner” as a new one.  As the Commissioner noted in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), time and manner are generally two different things, and treating them otherwise here would only discourage the making of revisions in response to public input, which would be contrary to the statute’s intent.

Initially, I note that the record indicates that both the February 17 and May 13 EISs propose the co-location of EHSA with the schools presently housed at M013 for the 2011-2012 and 2012-2013 school years.  Accordingly, since the changes made in the May 13 EIS did not change the nature of the February 17 proposal, I find that the May 13 EIS was a revised EIS for purposes of the statute (Education Law §2590-h(2-a)(d-1); seeAppeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).

Contrary to petitioners’ assertions, the fact that DOE decided not to act upon the PEP’s March 23 vote does not dictate a different result.  In an affidavit, DOE’s Executive Director of the Office of Portfolio Management (“director”) explains that “[a]fter receiving significant public comment on the proposal, including petitioner’s [sic] April 21, 2011 petition ... DOE ultimately decided not to move forward on the PEP’s vote approving the [February 17 EIS] and instead revise th[at] proposal to address public comment.”  As noted above, while Education Law §2590-h(2-a)(d-1) permits the Chancellor to substantially revise an EIS after receiving “public input,” such language does not prohibit revision of an EIS under the circumstances presented here.  Therefore, based on the record before me, I cannot conclude that DOE’s decision not to act upon the March 23 PEP vote and/or its consideration of a related legal challenge among the public input received regarding such EIS renders the May 13 EIS subject to the same six-month requirement as the initial February 17 EIS (seeAppeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  Finally, in light of this disposition, I need not consider petitioners’ related claim that the May 13 EIS does not meet the standard for an “emergency EIS that would allow DOE to circumvent the six month notice requirement.”

I find no merit to petitioners’ claims that the June 27, 2011 vote must be annulled because DOE failed to “reach out ... to families” prior to the June 6 hearing.  Petitioners provide no legal authority to support their claim.  Indeed, there is no statutory requirement for such consultation and, under the statutory scheme, the EIS process itself is intended to provide an opportunity for public information and comment (seeAppeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212; Appeal of Battis, et al., 50 id., Decision No. 16,115).  Although consultation and collaboration regarding co-location proposals is encouraged wherever practicable, absence of such does not warrant annulment of DOE’s determination.

Although not clearly articulated, petitioners appear to further contend that DOE failed to comply with the notice and filing requirements of Education Law §2590-h(2-a).  I disagree.  Petitioners allege no facts and provide no relevant evidence to support these claims.  With respect to the May 13 EIS and June hearing and PEP vote, DOE maintains that all required notices were provided in accordance with the provisions of Education Law §2590-h(2-a).  The director’s affidavit explains that such notices were “properly distributed to all appropriate parties, including all principals citywide” and were also “sent home with students.”  They assert in conclusory fashion only that the notices sent home with students may not have been received by all parents on May 13, 2011 -- the date the EIS was issued.  However, there is no requirement that such notices were required to be received on that date and petitioners have submitted no evidence to the contrary.  Based on the record before me, I conclude that petitioners have failed to carry their burden of establishing that DOE’s actions violated the statute’s requirements.

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioners seek annulment only of the June 27, 2011 PEP vote approving the proposal set forth in the May 13 EIS.  Accordingly, I need only address claims related to the May 13 EIS. 

[2] I note that the BUP contains a chart which indicates that CPEHS is only allocated one lunch period.  However, there is contradictory narrative in the BUP that precedes this chart which states that “CPEHS and J13 are both allocated two lunch periods, which they share.”  In addition, DOE’s Executive Director of its Office of Portfolio Management submitted an affidavit in this matter in which he states that both CPEHS and J13 were both allocated two lunch periods and that they would share these periods with each other.  Accordingly, I find that the narrative preceding the chart is controlling.

[3] To the extent that petitioners assert the same claim with respect to students with disabilities attending J13, as set forth above, petitioners have no standing regarding the same.