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Decision No. 16,579

 

 Appeal of CHRISTINE KROENING, on behalf of her children A.K. and R.K., CINDYPREVETE, on behalf of her son C.P., ANNTRINGALI, on behalf of her daughter J.T., LISA DITTMAN, on behalf of her daughter B.D., TONI STORZ, on behalf of her daughter S.S., and R.W., on behalf of her son J.W., from action of the New York City Department of Education and Success Academy Charter School – New York 4 regarding school utilization.

Decision No. 16,579

(December 17, 2013)

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

Emily A. Kim, Deanna Durrett, Daniel N. Soleimani, and Michele Listokin, Esqs., attorneys for respondent Success Academy Charter School – New York 4

KING, JR., Commissioner.--Petitioners challenge a determination of the New York City Department of Education(“DOE”) relating to the co-location of Success Academy Charter School – New York 4 (“SACS -New York 4”)(collectively “respondents”) for the 2014-2015 school year in a public school building. The appeal must be dismissed.

Petitioners are parents of children who attend school at J.H.S. 78 Roy H. Mann (“J.H.S. 78”) in Brooklyn.1 J.H.S. 78 serves students in grades six through eight and is located in building K078 (“K078” or “the building”) in Community District 22 (“District 22”).

SACS – New York 4 is a proposed charter school anticipated to open and serve students in kindergarten and first grade in September 2014.2 It will add one grade each year until it reaches grade four in the 2017-2018 school

1 Petitioners allege that petitioners Kroening, Prevete and Tringali a remembers of J.H.S. 78’s School Leadership Team (“SLT”) and that petitioner Dittman is the SLT chairperson.2 Pursuant to Education Law §2851(3), the State University of New York(“SUNY”) is a charter entity. As a charter entity, it has authority to approve applications to establish charter schools. On October 28,2013, SUNY approved the application to establish SACS – New York 4.

year. SACS – New York 4 will be operated by Success Academy Charter Schools, a charter management organization.

In connection with the application to establish SACS –New York 4, DOE held a public hearing on October 3, 2013pursuant to Education Law §2857(1). Additionally, as part of the application process, by letter dated October 9,2013, the Chancellor of the City School District of the City of New York (“Chancellor”), advised the State University of New York’s (“SUNY”) Charter Schools Institute(“Institute”) that he supported the application to establish SACS – New York 4 (see Education Law §2857[1]).

Regarding its proposal to co-locate SACS – New York 4in the K078 building commencing in the 2014-2015 school year, on August 29, 2013, DOE issued an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”)pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3).The EIS included information about a planned enrollment reduction at J.H.S. 78 in which J.H.S. 78 would gradually reduce its enrollment by 160-190 students so that it will serve approximately 795-825 students in the 2017-2018 school year. The EIS also indicated that the proposal was contingent upon SUNY’s approval of the application to establish SACS – New York 4.

According to DOE, it posted the EIS and BUP on its website and mailed hard copies to all “mandated parties”; it also emailed notice of the proposal to all “mandated parties” including CEC 22, Community Board 183, and principals, including J.H.S. 78’s principal. The email to principals directed them to send the documents to their School Leadership Teams (“SLT”). The notice included information regarding the proposal, including links to the EIS and BUP and information on how to submit comments. The notice also indicated that a joint public hearing on the proposal was scheduled for October 8, 2013.

By email dated August 30, 2013, a representative of DOE’s Division of Portfolio Planning (“DPP”) emailed J.H.S.78’s principal copies of the EIS and BUP, a parent letter describing the co-location proposal and notice of the October 8, 2013 joint public hearing. DPP’s representative instructed the principal to “backpack home” the parent letter and the notice of the joint public hearing, as well as forward the email message and attachments to the SLT. The principal was also instructed to make available hardcopies of the notice, EIS and BUP in the main office. The

3In its verified answer, DOE indicates that recipients of the email were blind-copied. DOE further indicates that it uses the blind copy option to preserve the privacy of the email addresses.

record indicates that on September 9, 2013, the parent letter and the notice of the October 8, 2013 joint public hearing were sent home with J.H.S. 78 students.

On October 8, DOE held a joint public hearing pursuant to Education Law §2590-h(2-a)(d) regarding the proposal to co-locate SACS – New York 4 in the K078 building. Over 700 people attended the hearing and over 60 people signed up to comment.

On October 11, 2013, DOE amended the EIS and BUP to correct an error regarding the number of students that SACS

– New York 4 would serve if the proposal were approved. According to DOE, the error was only on the first page of each document, and the enrollment charts, building utilization calculations and space allocation charts in the remaining pages of the documents contained and utilized the correct enrollment information. Also on October 11, 2013,DOE posted the Amended EIS and Amended BUP on its website and, according to DOE, emailed notice of the Amended EIS and Amended BUP to, among others, CEC 22, Community Board18 and J.H.S. 78’s principal.

In addition, according to DOE, on October 11, 2013, it emailed J.H.S. 78’s principal a copy of the Amended EIS and Amended BUP and a parent letter notifying families of the amended documents. DOE instructed the principal to backpack home the documents with his students and to make hard copies available in J.H.S. 78’s main office.

On October 14, 2013 at approximately 7:00 p.m., DOE posted the Public Comment Analysis (“Analysis”) on its website. On October 15, 2013, the Amended EIS and Amended BUP and a parent letter notifying families of the amended documents were sent home with J.H.S. 78 students.

At its October 15, 2013 meeting, the Panel on Educational Policy (“PEP”) voted to approve the co-location of SACS – New York 4 with J.H.S. 78 in the K078 building beginning in the 2014–2015 school year. This appeal ensued.

Petitioners argue that DOE failed to comply with the notice and hearing requirements of Education Law §§2590­g(8)(a),2590-h(2-a) and Chancellor’s Regulation A-190 in several respects. Petitioners also claim that there was a substantial revision to the EIS triggering the notice and hearing procedures required by Education Law §§2590-g(8)(b)and2590-h(2-a)(d-1) and Chancellor’s Regulation A-190. In addition, petitioners claim that the Analysis was not timely issued. Further, petitioners challenge the procedures relating to the application to establish SACS –New York 4. Petitioners also allege that they did not

understand that there were separate hearings for the co­location proposal and the charter application, and that DOE failed to explain both processes to them. They seek annulment of the determination to co-locate SACS – New York 4 with J.H.S. 78 in the K078 building.

Respondents deny petitioners’ allegations and contend that DOE complied with the relevant portions of Education Law and the applicable Chancellor’s Regulation. They allege that certain petitioners lack standing and that petitioners have failed to state a claim upon which relief can be granted. In addition, respondent SACS – New York 4asserts that petitioners have failed to join a necessary party and that petitioners seek relief outside the scope of the Commissioner’s authority. 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.4 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)] ...

4By letter dated November 15, 2013 and sent via facsimile and regular mail, my Office of Counsel advised the parties that the Notice of Petition served upon respondents on November 13, 2013 did not comply with the requirements of §276.11(c)(2) of the Commissioner’s regulations and that pursuant to §276.11(c)(3) of the Commissioner’s regulations, the appeal was deemed to be a non-expedited appeal pursuant to Education Law §310. The parties were further advised that the timelines set forth in Part 275 of the Commissioner’s regulations were applicable. Petitioners responded and advised my Office of Counsel of an omission on the State Education Department’s website regarding the content of the notice required by §276.11(c)(2) of the Commissioner’s regulations. By letter dated November 18, 2013 and sent via facsimile and regular mail, my Office of Counsel notified the parties that the appeal would be expedited, that the expedited timeframe would be calculated as though the petition were served on the date of the letter and that respondents’ answers must be served no later than December 3, 2013. Petitioners objected and requested that the original date of service be “documented” as the date of service for the appeal. Given the timing of the discovery of the omission on the Department’s website and in fairness to the parties, the November 18,2013 date was used solely for the purpose of calculating applicable dates relating to the remaining pleadings.

[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 must address several procedural issues. Respondent SACS – New York 4 urges that I not consider the15 affidavits from parents “detailing the tremendous hardship that the charter proposal will cause to their children and all the students within our community” which are attached to the petition. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).Accordingly, I decline to consider the affidavits as petitioners’ claims and demand for relief must be set forth in the petition (see 8 NYCRR §275.10).

Petitioners also submitted two replies, one in response to DOE’s answer and one in response to SACS – New York 4’s answer. 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, 48id. 418, Decision No. 15,901). Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answers.

Respondents assert that petitioners Prevete, Dittman and Tringali do not have standing to maintain this appeal because their children are currently enrolled in eighth grade and will not attend school in building K078 in the2014-2015 school year, when the proposed co-location is scheduled to begin. 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. 5

15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

The record indicates that SACS – New York 4 is scheduled to open in building K078 in September 2014. The record further indicates that building K078 is a middle school serving students in grades six through eight. Petitioners Prevete, Dittman, and Tringali allege that they are parents of students who are in eighth grade in either the Center for the Intellectually Gifted program or the Excelsior program at J.H.S. 78. In their reply, petitioners assert that while it is likely that their children will “matriculate out” of J.H.S. 78, it is not a certainty, as there are numerous scenarios in which one or all of the students will remain in the building next year. However, petitioners fail to allege the specific circumstances that would result in their current eighth grade children remaining in middle school and attending school in the building for the 2014-2015 school year when SACS – New York 4 is scheduled to begin enrolling students in the building. As petitioners Prevete, Dittman, and Tringali have failed to demonstrate that they or their children are directly affected by the co-location, they lack standing, and the appeal must be dismissed as to them(seeAppeal of Amponsah, et al., 53 Ed Dept Rep, Decision No. 16,549; Appeal of Williams, et al., 53 id., Decision No. 16,548, Appeal of T.T., et al., 51 id., Decision No.16,361; Appeal of Collier, et al., 51 id., Decision No.16,289).

Respondent SACS – New York 4 raises additional challenges to petitioners’ standing. It alleges that none of the petitioners have demonstrated that they are directly affected by the co-location because none claim that his orher child will attend J.H.S. 78 once the co-location begins in the 2014-2015 school year. However, the remaining petitioners, Kroening, R.W. and Storz, allege that their children attend sixth and seventh grade at J.H.S. 78. The record indicates that J.H.S. 78 serves students in gradessix through eight, grades to which the remaining petitioners’ children will matriculate when the proposed co-location is scheduled to begin in the 2014-2015 school year. Accordingly, I find that petitioners Kroening, R.W.and Storz have standing.

Respondent SACS – New York 4 also alleges that all of the petitioners lack standing because none have alleged that they will be injured by the co-location beyond that which is conjectural and generalized. Petitioners Kroening, R.W. and Storz challenge DOE’s actions relating

to the use of the building where their children attend school. Accordingly, I find that petitioners Kroening,

R.W. and Storz have standing (see Appeal of T.T., et al., 51Ed Dept Rep, Decision No. 16,361, Appeal of Santos, 50 EdDept Rep, Decision No. 16,116).

Respondent SACS – New York 4 also contends that the appeal must be dismissed because petitioners failed to name a necessary party. Specifically, respondent SACS – New York 4 asserts that it is “governed” by Success Academy Charter Schools – NYC and that Success Academy Charter Schools – NYC is the proper respondent in this proceeding. 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).

In her affidavit, the attorney for Success Academy Charter Schools – NYC explains that Success Academy Charter Schools – NYC is the “governing entity” for SACS – New York

4. Petitioners have clearly named SACS – New York 4, an admitted component of Success Academy Charter Schools –NYC, as a respondent in the caption. In addition, Success Academy Charter Schools – NYC accepted service of the petition on behalf of SACS – New York 4, and does not assert an affirmative defense in its answer that service was improper or incomplete. Nor does Success Academy – NY Callege any prejudice resulting from the naming of its component school as respondent in the caption. Consequently, I will not dismiss the appeal for failure to join a necessary party.

Respondent SACS – New York 4 also asserts that petitioners’ challenge to SUNY’s decision to grant the application to establish SACS – New York 4 must be dismissed. Specifically, SACS – New York 4 asserts that I lack jurisdiction to hear such claims in this expedited proceeding. I agree. As noted above, the scope of this 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 7

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 the granting of a charter application by a charter entity are not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5) and must be dismissed (see Appeal of T.T., et al., 51 Ed Dept Rep, Decision No. 16,361; see also Appeal of Ross Global Academy Charter School, 50 Ed Dept Rep, Decision No. 16,194).Moreover, SUNY would not be a proper respondent in an appeal commenced pursuant to Education Law §310 (see Appeal of a Student with a Disability, 48 Ed Dept Rep 345,Decision No. 15,880; Appeal of Tylicki, 46 id. 414,Decision No. 15,549).

Turning to the merits, 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 Rep523, 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 they did not have sufficient notice of the proposed co-location. Specifically, they argue that they did not receive notice of the proposal until September 9, 2013, less than 45 days in advance of the PEP vote in violation of Education Law 2590-g(8)(a) and Chancellor’s Regulation A-190. They also argue that the EIS and BUP were sent to J.H.S. 78’s principal on August30, 2013, the Friday of Labor Day weekend and during the summer when the SLT members were not available.

Education Law §2590-(g)(8)(a) provides that prior to its approval of a proposed school closing or significant change in school utilization, the PEP must undertake a public review process “to afford the public an opportunity to submit comments on the proposed item.” It further provides that notice of the item under consideration shall be made available to the public including via the board’s official internal website and specifically circulated to all community superintendents, community district education councils, community boards and school based management teams at least 45 days in advance of the PEP vote on the item.

The record indicates that on August 29, 2013, DOE issued the EIS and BUP and posted them on its website. In addition, according to DOE, on August 29, 2013, it mailed hard copies of the documents to all “mandated parties.” The record also indicates that on August 29, 2013, DOE emailed notice of the proposed co-location to, among others, principals, including J.H.S. 78’s principal. DOE asked principals to send the email to their SLTs. The notice attached to the email included information regarding the proposal, including links to the EIS and BUP and information on how to submit comments. The notice also indicated that a joint public hearing regarding the proposal was scheduled for October 8, 2013.

In addition, the record indicates that by email dated August 30, 2013, a representative of DOE’s DPP emailed

J.H.S. 78’s principal copies of the EIS and BUP, a parent letter describing the co-location proposal, and notice of the October 8, 2013 joint public hearing. DPP’s representative instructed the principal to backpack home the parent letter and the notice of the joint public hearing, as well as forward the email and attachments to the SLT. The record indicates that on September 9, 2013,the parent letter and the notice of the October 8, 2013joint public hearing were sent home with J.H.S. students.

In Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), in considering a challenge to the notice and filing requirements of Education Law §2590-h(2-a), the Commissioner found that the appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance. Similarly, I find that the appropriate standard of review of the notice requirements under Education Law §2590-g(8) is substantial compliance and I find that, on this record, DOE’s actions as set forth above substantially complied with the notice requirements of Education Law §2590-g(8)(a).

Contrary to petitioners’ claim that the SLT did not receive notice of the proposal until September 9, 2013, the record indicates that DOE provided copies of the documents via email to J.H.S. 78’s principal, a member of the SLT, on August 29, 2013 and directed him to share the documents with the SLT. In addition, petitioners acknowledge that the August 30, 2013 email to the principal was at least 45days prior to the PEP vote and provide no support for their claim that the notice should not have been sent during the summer when the SLT was unavailable. Moreover, I note that by email dated June 26, 2013, J.H.S. 78’s principal was advised of the plans regarding the building and was asked

to share the email with the SLT before the last day of school. Petitioners have failed to carry their burden of proof on this issue.

Petitioners also claim that the Chancellor knew of the PEP’s decision to pass the proposal on October 9, 2013 when he advised the Institute of his support for the application to establish SACS – New York 4. They argue that the PEP’s decision was made by October 9, 2013 and that they should have received notice of the co-location proposal at least45 days prior to October 9, 2013. However, petitioners provide no support for their position. The Chancellor’s October 9, 2013 letter states that “support for an application does not guarantee the availability or viability or public school space,” and that the “pending co-location proposals ... will be voted on by the Panel for Educational Policy during the month of October.” Petitioners have failed to carry their burden of proof on this issue.

Petitioners also claim that Community Board 18 was never notified of the October 8, 2013 joint public hearing. To support their claim, petitioners attach an affidavit from the District Manager of Community Board 18 stating that “Community Board No. 18 did not receive any notifications whatsoever prior to the public hearing[] on October 8, 2013.”

Education Law §2590-h(2-a) requires the 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. Education Law §2590-h(2-a) also prescribes notice and filing requirements for such statements. 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, 50 Ed Dept Rep, Decision No. 16,115). As noted above, the appropriate standard of review of the notice and filing requirements under Education Law §2590-h(2-a) is substantial compliance (Appeal of Battis, 50 Ed Dept Rep, Decision No. 16,115).

Education Law §2590-h(2-a)(d) requires that a joint public hearing be held regarding a significant change in school utilization no sooner than thirty days, but no later than forty-five days following the filing of the EIS. It further requires that the Chancellor or his designee shall hold the joint public hearing with the impacted community council and school based management team at the school that is subject to the proposed significant change in school 10

utilization. In addition, Education Law §2590-h(2-a)(d)requires that interested parties shall be allowed an opportunity to present comments or concerns regarding the significant change in school utilization.

Further, Education Law §2590-h(2-a)(d) requires that the Chancellor ensure that notice of the hearing is widely and conspicuously posted in such a manner as to maximize the number of affected individuals that receive notice, including providing notice to affected parents and students. In addition, the statute requires that the Chancellor shall also notify members of the community boards and the elected state and local officials who represent the affected community district.

In its answer, DOE indicates that on August 29, 2013,it issued the EIS and BUP, posted the EIS and BUP on its website, and mailed hard copies of the documents to all “mandated parties,” including Community Board 18. DOE also indicates in its answer that on August 29, 2013 it emailed notice of the co-location proposal to all “mandated parties,” including Community Board 18, and that the notice included information regarding the date, time and place of the joint public hearing. According to DOE, the August 29,2013 email was blind copied to Community Board 18 at its published email address, bkbrd18@optonline.net.

As noted above, petitioners claim that Community Board18 was never notified of the October 8, 2013 joint public hearing and submit an affidavit from the District Manager of Community Board 18 stating that “Community Board No. 18did not receive any notifications whatsoever prior to the public hearing[] on ... October 8, 2013.” However, this is disputed by DOE, which asserts that Community Board 18 was provided with email notice of the co-location proposal including the date, time and place of the hearing as well as a hard-copy mailing of the EIS and BUP. However, I need not resolve that dispute, because petitioners do not allege that they are members of Community Board 18, and the refore they would not be aggrieved by a failure on the part of DOE to provide notice to Community Board 18. As noted above, 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, 48Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson,47 id. 261, Decision No. 15,689). Only persons who a redirectly 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. 11

261, Decision No. 15,689). Petitioners lack standing to assert the rights of Community Board 18 and that claim must be dismissed.

In any case, it appears from the record that DOE did provide petitioners and members of the community a full opportunity to comment on the co-location proposal. The record indicates that over 700 people attended the joint public hearing. Moreover, I note that there is no indication in the record that petitioners, at least one of whom attended the joint public hearing, were unaware of the hearing or were denied the opportunity to comment on the co-location proposal. Indeed, petitioners admit that the “DOE Office of Portfolio Management explained to us in detail of the Public Hearing on October 8, 2013 that was being held at our school....” Based on this record, I find that DOE substantially complied with Education Law §2590­h(2-a)(d).

Petitioners also claim that there was a substantial revision to the EIS triggering the notice and hearing procedures required by Education Law §§2590-g(8)(b)and2590-h(2-a)(d-1) and Chancellor’s Regulation A-190. Respondents claim that the Amended EIS and Amended BUP merely corrected a typographical error on the first page of each document concerning the number of students that SACS –New York 4 would ultimately serve. They assert that the error was not substantive as the enrollment charts, building utilization calculations and space allocation charts in the rest of the original EIS and BUP contained the correct enrollment information. 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 than15 days following the filing of such revised” EIS (Education Law §2590-h[2-a][d-1]). In addition, Education Law §2590-g(8)(a) provides that prior to its approval of a proposed school closing or significant change in school utilization, the PEP must undertake a public review process “to afford the public an opportunity to submit comments on the proposed item.” If such proposal is “substantially revised” at any time following the public notice” the PEP shall issue a revised public notice which shall be available at least 15 days in advance of any vote on the proposed item (Education Law §2590-g[8][b]). 12

Petitioners have not carried their burden of

establishing that there was a substantial revision to the EIS triggering the requirements of Education Law §§2590­g(8)(b) and 2590-h(2-a)(d-1). Other than their conclusory assertion that DOE made “significant changes” to the EIS, petitioners provide no evidence that such clarification constituted a substantial revision to the EIS (Appeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).

Petitioners also argue that the Analysis was not posted in a timely manner and that they were advised by a representative from DOE’s Office of Portfolio Management(“OPM”) that the Analysis would be available on October 11,2013. Education Law §2590-g(8)(c) and Chancellor’s Regulation 190-A require that following the public review process, but prior to voting on a proposed school closing or significant change in school utilization, DOE shall make available to the public, including via the city board’s official internet website, an assessment of all public comments concerning the item under consideration received prior to 24 hours before the PEP meeting at which such item is subject to a vote. Petitioners appear to misconstrue this provision as requiring that the Analysis be posted at least 24 hours before the PEP vote on the item, rather than that the Analysis, which must be made available to the public “prior to voting,” assess all public comments received prior to 24 hours before the PEP meeting at which the vote will occur (Education Law §2590-g[8][c]). In this case, the record indicates that the Analysis was posted on DOE’s website on October 14, 2013 at approximately 7:00p.m., which was prior to the October 15, 2013 PEP vote. I therefore find that DOE substantially complied with the notice and filing requirements (see Appeal of Small, et al.,52 Ed Dept Rep, Decision No. 16,420).

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

THE APPEAL IS DISMISSED. END OF FILE