Skip to main content

Search Google Appliance

Search Google Appliance

Decision No. 16,457

Appeal of KENNETH WRIGHT, on behalf of his children YUSHA and AAISHAH, from action of the New York City Department of Education and Success Academy Charter School - Brooklyn 6 regarding school utilization.

Decision No. 16,457

(February 21, 2013)

South Brooklyn Legal Services, attorneys for petitioner, Nancy Bedard, Esq., of counsel

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

Emily A. Kim, Deanna L. Durrett, and Daniel N. Soleimani, Esqs., attorneys for respondent Success Academy Charter School – Brooklyn 6

BERLIN, Acting Commissioner.--Petitioner challenges a determination of the New York City Department of Education (“DOE”) relating to the co-location of Success Academy Charter School - Brooklyn 6 (“SACS – Brooklyn 6”, collectively “respondents”) in a public school building.  The appeal must be dismissed.

Petitioner is the parent of children attending P.S. 138 in Brooklyn during the 2012-2013 school year.  P.S. 138 serves students in grades pre-kindergarten through eight and is located in Building K138 (“K138 building” or “the building”) in Community School District 17.  Also located in the K138 building is the Medgar Evers College Beacon program, a community-based organization which provides after-school youth development activities for the P.S. 138 community.  In addition, the District 17 Community Education Council’s office is located in the building.

SACS – Brooklyn 6 is a new charter school authorized to serve students in grades kindergarten through five.  It is scheduled to open and serve students in kindergarten and first grade in September 2013 and will add one grade each year until it reaches grade five in 2017-2018.

On November 5, 2012, DOE issued an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”) (collectively referred to as the “November 5, 2012 EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3) proposing the co-location of SACS – Brooklyn 6 in the K138 building.[1]  A public hearing was held on December 13, 2012, and on December 20, 2012, the Panel on Educational Policy (“PEP”) voted to approve the co-location of SACS – Brooklyn 6 with P.S. 138 in the K138 building beginning in the 2013–2014 school year.  This appeal ensued.

Petitioner alleges that a substantial revision was made to the November 5, 2012 EIS and that the DOE failed to comply with the requirements of Education Law §2590-h(2-a).  Petitioner further alleges that the November 5, 2012 EIS is “full of inaccuracies and omissions” resulting in an inequitable sharing of space.  In addition, petitioner challenges the Building Safety and Security section of the BUP and alleges that the K138 building cannot accommodate the proposed target capacity safely.  Petitioner requests annulment of the determination to co-locate SACS – Brooklyn 6 in the K138 building.

Respondents deny petitioner’s allegations and contend that DOE substantially complied with all statutory requirements.  Respondent SACS – Brooklyn 6 asserts that the petition should be dismissed for failure to name a necessary party and that petitioner lacks standing to maintain the appeal.

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 to the Commissioner of Education 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 and 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]).

Initially, I will address the procedural issues. Respondent SACS – Brooklyn 6 asserts that petitioner failed to allege that his children will attend P.S. 138 for the 2013-2014 school year and contends that petitioner, therefore, lacks standing to maintain the appeal.  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). 

The record indicates that SACS is scheduled to open in September 2013.  In his petition, petitioner alleges that he is the father of “Yushia Wright, who attends P.S. 138 grade [sic] and Aaaishah Wright who attends P.S. 138 for the 2012-2013 school year.”  However, petitioner does not allege that his children will attend P.S. 138 during the 2013-2014 school year, the year that SACS – Brooklyn 6 is scheduled to open in the building, nor does he specify which grade(s) his children attend in the current school year.  I note that, although petitioner had an opportunity to reply to each affirmative defense pursuant to Commissioner’s regulations §276.11(e), he failed to do so.  As petitioner failed to demonstrate that he is directly affected by the co-location, he lacks standing, and the appeal must be dismissed (seee.g.Appeal of T.T., et al., 51 Ed Dept Rep, Decision No. 16,361; Appeal of Collier, et al., 51 id., Decision No. 16,289).

Respondent SACS – Brooklyn 6 also contends that the appeal must be dismissed because petitioner failed to name a necessary party.  Specifically, SACS – Brooklyn 6 asserts that “Success Academy Charter Schools”, named as respondent in the caption, is the charter management organization that will contract with SACS – Brooklyn 6’s Board of Trustees to operate the charter school.  It argues that petitioner named only the charter management organization as a respondent in the caption of this appeal and failed to properly name the charter school.  SACS – Brooklyn 6 maintains that the charter management organization is a separate legal entity from SACS – Brooklyn 6 and, therefore, is not a proper respondent.

I note that contrary to SACS – Brooklyn 6’s contention, the caption does not name the charter management organization: Success Academy Charter Schools (emphasis supplied).  Rather, it names “Success Academy Charter School” (singular).  While I disagree with SACS – Brooklyn 6’s assertion that petitioner names the charter management organization, I do find, however, that petitioner failed to properly join the charter school, SACS – Brooklyn 6, as a party.

In a co-location appeal, a determination in the petitioner’s favor could adversely affect the charter school (Appeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, SACS – Brooklyn 6 is not clearly named in the caption as a respondent.  The caption names Success Academy Charter School, generally, but fails to identify Brooklyn 6 or any specific school among those within the Success Academy Charter Schools network.  I note that the November 5, 2012 EIS indicates that Success Academy Charter Schools currently operates 12 public elementary charter schools in New York City and that, beginning in the 2013–2014 school year, it has been authorized to operate six additional new public elementary charter schools.  Not only did petitioner fail to name the SACS – Brooklyn 6 charter school as a respondent, his affidavit of service avers only that “Success Academy Charter School” was served at 310 Lenox Avenue, New York, New York.  SACS – Brooklyn 6 has objected to service in its answer and petitioner has submitted no reply.  Accordingly, petitioner has not denied respondent charter school’s affirmative defense that service was improper and incomplete.  Moreover, there is no evidence that any individual authorized to accept service for the charter school was served, nor was the charter school clearly named as a respondent.  Consequently, the appeal must be dismissed for failure to join a necessary party.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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.  The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).

Petitioner alleges that a substantial revision was made in the November 5, 2012 EIS and that DOE failed to comply with the requirements of Education Law §2590-h(2-a)(d-1) and Chancellor’s Regulations A-190.[2]  He argues that the Public Comment Analysis, which was prepared after the December 13, 2012 public hearing, contained updated target capacity figures and such figures formed the basis for the PEP’s vote in favor of the co-location.  Respondents deny petitioner’s claim.

Education Law §2590-h(2-a)(d-1) provides that after receiving public input, DOE may “substantially revise” a proposed school closing or significant change in school utilization.  In such cases, DOE must publish and file a revised EIS and must hold a public hearing “no sooner than 15 days following the filing of such revised” EIS (Education Law §2590-h[2-a][d-1]).

Petitioner has not carried his burden of establishing that there was a substantial revision to the November 5, 2012 EIS triggering the requirements of Education Law §2590-h(2-a)(d-1).  On November 5, 2012, DOE issued the EIS proposing the co-location and posted notice that a joint public hearing on the proposal would be held on December 13, 2012.  According to the December 19, 2012 Public Comment Analysis, several individuals addressed the target capacity figures, which were updated after the EIS was initially prepared.[3]  The Public Comment Analysis explains that target capacity figures are used to calculate building utilization rates.  The building’s target capacity figures and utilization rates were discussed and clarified by DOE in the Public Comment Analysis.  In an affidavit, the Chief Portfolio Officer of DOE’s Office of Portfolio Management (Chief Portfolio Officer) stated that the updated target capacity figures and utilization rates did not affect the projected enrollment for the schools or the number of sections each school would serve per grade.  She indicated that the updated target capacity figures resulted in no change to the BUP because the room allocations remained constant based on enrollment/section counts.  Consequently, no aspect of the co-location proposal was revised as a result of the updated 2011–2012 target capacity figures.  Because no revision to the November 2012 EIS occurred, DOE was not required to publish anything further prior to the PEP approving the proposal.

Moreover, I note that the November 5, 2012 EIS reflects a building utilization rate of approximately 55 percent for the 2012-2013 school year.[4]  The Public Comment Analysis includes a chart using the updated 2011-2012 target capacity figures, which were used to calculate a building utilization rate of 57 percent for the 2012-2013 school year.[5]  While the updated target capacity figures caused an increase in the building utilization rate, such increase amounted to only two percentage points and the building utilization rate remains well below 100 percent.  Therefore, I find the change deminimus and I cannot conclude that DOE was unreasonable in deciding not to revise the EIS (seeAppeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).

Petitioner also argues that because the updated rates were not included in the November 5, 2012 EIS, individuals attending the December 13, 2012 public hearing were not provided an opportunity to review and comment on the revised building utilization rate.  As petitioner notes, 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 a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  While the updated target utilization rates were not included in the November 5, 2012 EIS, the Public Comment Analysis indicates that several individuals did address the issue of target capacity at the December 13, 2012 public hearing and the revised rates were discussed and clarified.  Accordingly, I find that petitioner has not carried his burden with respect to this claim.

Turning to petitioner’s substantive claims, 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 (seealsoAppeal of Espinet, et al., 50 Ed Dept Rep, 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 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).

Petitioner contends that the November 5, 2012 EIS is “full of inaccuracies and omissions” in a number of respects and will not result in an equitable and comparable use of the K138 building.  First, petitioner asserts that the students at P.S. 138 will be “detrimentally affected” by not having the space that is essential to the delivery of its winning academic performance.  Petitioner indicates that sixth grade students at P.S. 138 are taught in self-contained classes and that seventh and eighth grade students move minimally from class to class, and he argues that because the November 5, 2012 EIS assumes that students in grades six through eight move from class to class, the method in which students at P.S. 138 are served would have to be substantially adjusted.

Petitioner’s assertion is speculative.  The Citywide Instructional Footprint (“Footprint”) 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.  While petitioner is correct that the Footprint assumes that students in grades six through eight move from class to class, the BUP provides that for the 2013-2014 school year, P.S. 138’s adjusted baseline allocation will remain the same as the previous year.  In addition, in her affidavit, the Chief Portfolio Officer indicates that if P.S. 138 chooses to serve all of its students in self-contained classrooms, it may do so because DOE has allocated enough classrooms based on the number of sections in each grade, although such programming may result in less space for “dedicated specialty (i.e., cluster) room use at the middle school level.”  On this record, I find that petitioner has failed to meet his burden on this issue.

Petitioner has also failed to meet his burden regarding his assertion that the November 5, 2012 EIS incorrectly assumes that P.S. 138 requires only four cluster rooms.  Although the petition is not clear, to the extent that petitioner is challenging the Footprint’s formula for allocating cluster rooms, such claim is not properly raised in a co-location appeal commenced pursuant to Educational Law §2853(3)(a-5) and must be dismissed without prejudice (seeAppeal of T.T., et al., 51 Ed Dept Rep, Decision No. 16,361).  To the extent petitioner is arguing that the co-location affected the allocation of cluster rooms, petitioner has not alleged any facts to support such challenge.  Other than his conclusory assertion, petitioner has not submitted any evidence to support his claim, which must be dismissed.

Petitioner also challenges the November 5, 2012 EIS because it allegedly fails to consider the science labs, computer labs and a “stepped” music room.  However, petitioner has not demonstrated that the proposed classroom space allocation is inequitable.  In fact, the BUP assumes that P.S. 138 will continue to use all the space in the building as it did in 2011–2012.  In addition, in her affidavit, the Chief Portfolio Officer states that P.S. 138 has been allocated use of both science labs for the 2013-2014 school year.  Moreover, she states that DOE will assist in moving any science or music equipment, if necessary to outfit other classrooms, and will wire other rooms allocated to P.S. 138 for computers, as needed, so as to ensure that it functions programmatically in the same manner as it does currently.  Thus, I find that petitioner has failed to carry his burden with respect to this claim.

Petitioner also challenges the allocation of space in the cafeteria, “outdoor play yard” and auditorium.  The BUP contains a detailed proposal for the use of shared space, including a table indicating the weekly amount of time each co-located school would have access to the cafeteria, library, gymnasium and auditorium.  The BUP also provides justification for how the proposed allocations result in “equitable and comparable” use of space, as required by statute.

With respect to the cafeteria, petitioner asserts that posted signs in the cafeteria state that the room only holds 300 students.  Contrary to petitioner’s unsupported claim, the Chief Portfolio Officer indicates that DOE confirmed that the occupancy for the cafeteria in the K138 building is 570, as stated in the BUP.  Petitioner also asserts that P.S. 138 cannot serve lunch and allow for time in the “outdoor play yard” if the lunch period is reduced to 40 minutes.  However, according to the Public Comment Analysis, P.S. 138 currently programs three daily 50-minute lunch periods between 10:30 a.m. and 1:10 p.m.[6]  According to the BUP, the proposed schedule allocates time to P.S. 138 in the cafeteria from 10:30 a.m. to 1:10 p.m.  Therefore, P.S. 138 will continue to maintain its current lunch schedule with no time reduction as alleged by petitioner.

With respect to petitioner’s claim that the BUP fails to address use of the “outdoor play yard,” DOE notes that the K138 building does not, in fact, have an outdoor playground or play yard with equipment.  Rather, she explains that the only outdoor area is a blacktop space that students are free to use during their designated time in the cafeteria.  However, it is not otherwise designated as, for example, “recess,” nor used other than voluntarily during cafeteria time. Therefore, it is not “shared space” within the meaning of Education Law §2853(3)(a-3).  I also note that the Chief Portfolio Officer states in her affidavit that, should the Building Council consider the blacktop area as shared space in the future, it may propose to allocate time in such shared space, as required.

Petitioner asserts that the November 5, 2012 EIS fails to note that the auditorium is under construction and cannot be used, and that there is no adequate justification for the proposed shared space schedule.  Both schools would be impacted by any construction and I am unable to find from the record that the auditorium construction will impact P.S. 138 students any more than it will impact SACS – Brooklyn 6’s students.  In any event, the record shows that DOE anticipates that the construction will be completed by September 2013 and has allocated time in the auditorium to both schools, with P.S 138 receiving more time because it will serve more students and grade levels compared to SACS – Brooklyn 6.  I am unable to find from the record that the auditorium construction will impact P.S. 138 students more than it will impact SACS – Brooklyn 6’s students.  Accordingly, petitioner has not carried his burden with respect to his claims regarding shared space allocation.

Petitioner also asserts that the BUP does not allocate space or propose a shared space schedule for after school programs currently at P.S. 138.  The BUP indicates that shared space is not currently allocated for after school programs and that the Building Council will address any future request for the use of shared space after school hours and may then allocate such space as needed.  In addition, the November 5, 2012 EIS notes that P.S. 138 offers several programs, initiatives and extracurricular activities and indicates that DOE does not anticipate that the co-location proposal will impact such activities which are based on student interest, available resources and staff support.

Similarly, the November 5, 2012 EIS indicates that the Medgar Evers College Beacon program is not expected to lose any space or reduce the services offered as a result of the proposal to co-locate.  The November 5, 2012 EIS provides that that the Medgar Evers College Beacon program will continue to operate in the K138 building subject to interest and demand.  Based on the record before me, I find that petitioner did not meet his burden of proof regarding his claim that that the November 5, 2012 EIS fails to address after school programs currently offered at the K138 building.

With respect to petitioner’s challenge to the Building Safety and Security section of the BUP, the Education Law §2853(3)(a-3)(2)(D) states that the BUP must address “building safety and security,” but does not specify the information that a BUP should include and DOE is afforded a “considerable measure of discretion in this regard” (seeMulgrew, et al. v. Bd. of Educ. of the City School Dist. of the City of New York, et al., 75 AD3d 412 [1st Dept 2010]).  Here, the BUP states that every school must have a School Safety Committee and further explains the committee’s role and responsibilities, including the establishment of a Building Response Team.  I conclude that that information is sufficient, and petitioner has failed to establish that the BUP is in any was deficient in this respect.

Petitioner also claims that the co-location will result in overcrowding and attempts to illustrate his claim by referring to the previous co-location of Explore Empower Charter School (“Explore”) in building K138.  DOE denies that Explore was re-sited because of overcrowding.  In her affidavit, the Chief Portfolio Officer stated that at the time DOE proposed the re-siting of Explore, P.S. 138’s enrollment was higher than it currently is and Explore required more space than what was available in the K138 building to grow to full scale.

Petitioner also asserts that the K138 building cannot accommodate the target capacity safely, but provides no evidence to support his assertion.  According to the BUP, each school’s target capacity is calculated based upon the scheduled use of individual rooms as reported by principals during an annual facilities survey, the DOE’s standards for goal classroom capacities and the efficiency with which classrooms are programmed.  As noted by the Chief Portfolio Officer in her affidavit, the building’s target capacity is 1,430 students and the projected combined total enrollment for both schools during the final year of phase in is 1,158 - 1,370 students.

In addition, petitioner asserts that the November 5, 2012 EIS incorrectly assumes student enrollment will decrease over the next five years.  However, petitioner merely speculates that enrollment will increase due to the school’s performance reputation.  Contrary to petitioner’s speculation, the Chief Portfolio Officer avers that DOE projects a modest decrease in enrollment in kindergarten through grade two.  Accordingly, petitioner has failed to establish facts on which to meet his burden.

Petitioner’s claim that P.S. 138 will lose 15.25 classrooms and one office in the first year of the co-location is not supported by the record.  The BUP indicates that P.S. 138’s baseline allocation will remain the same as the year before and that seven of nine excess rooms were also allocated to P.S. 138.

As a final matter, I note that the Public Comment Analysis indicates that the general issues in this appeal were addressed through that process.  Accordingly, the record indicates that DOE provided sufficient information to inform such public comment.  As set forth above, I cannot conclude from the record before me that DOE’s decision was arbitrary, capricious or lacked a rational basis and find that petitioner has not met his burden of proof.

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

THE APPEAL IS DISMISSED except that, as indicated above, the claim not properly raised in an appeal commenced pursuant to Education Law §2853 (3(a-5), specifically, petitioner’s challenge to the Footprint’s formula for allocating cluster rooms is dismissed without prejudice to commencing a non-expedited appeal on that claim pursuant to Education Law §310 and parts 275 and 276 of the Commissioner’s regulations within 10 days after receipt of this decision.

END OF FILE.

[1] The EIS proposing the co-location was initially issued in September 2012.  Because of Hurricane Sandy, DOE withdrew that proposal and reissued the same proposal on November 5, 2012.

[2] Although the Chancellor’s Regulations have not been submitted as part of the record in this appeal, I take administrative notice of the regulations posted on the official website of the New York City Department of Education.

[3] As noted in Footnote 1, the EIS proposing the co-location was initially issued in September 2012 before the target capacity figures for the 2011-2012 school year had been released.  The target capacity figures for the 2011-2012 school year were published in the Enrollment Capacity Utilization Report (“Blue Book”) dated September 21, 2012.  Because of Hurricane Sandy, DOE withdrew its September 2012 proposal and reissued the same proposal on November 5, 2012.  As the November 5, 2012 EIS was the same as the September 2012 proposal, it did not incorporate the updated 2011-2012 target capacity data.

[4] The November 5, 2012 EIS further shows that by the 2017-2018 school year, when all SACS – Brooklyn 6 grades would be phased in, the projected building utilization rate would be 79 – 93 percent.

[5] The chart reflects that the projected utilization rate for the 2017 - 2018 school year would be 81 – 95 percent.

[6] According to the affidavit of the Chief Portfolio Officer, the BUP contained a typographical error incorrectly stating that P.S. 138 serves lunch between 10:30 a.m. and 1:30 p.m., but that the Public Comment Analysis correctly indicates that P.S. 138 currently serves lunch between 10:30 a.m. and 1:10 p.m.