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Decision No. 16,701

Appeal of HARLEM VILLAGE ACADEMY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,701

(February 9, 2015)

Cohen Schneider & O’Neill, LLP, attorney for petitioner, Paul T. O’Neill, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Thomas Roberts, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Harlem Village Academy Charter School (“the school” or “petitioner”), challenges the New York City Department of Education’s (“DOE” or “respondent”)[1] failure to offer it a co-location site in a public school building or space in a privately owned or publicly owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be sustained in part.

Petitioner is a charter school authorized to serve students in grades kindergarten through twelve in Community School District (“CSD”) 5.  Petitioner’s initial charter was issued by the Board of Regents in September 2002 for a term of five years, and has subsequently been renewed for two additional five-year terms.[2]  Prior to the 2014-2015 school year, petitioner served kindergarten, first grade and grades five through twelve; petitioner expanded to include second grade in the 2014-2015 school year.  Petitioner will continue to expand by adding a third grade class in the 2015-2016 school year and a fourth grade class in the 2016-2017 school year.

By letter dated July 16, 2014, DOE was notified of petitioner’s need for space to house its expansion of grades kindergarten through grade four in CSD 5.  By letter dated December 17, 2014, DOE acknowledged the July 16, 2014 request for space but stated that it did not have “appropriate space in a DOE building in Community School District (CSD) 5 for grades kindergarten through four and therefore cannot extend an offer of co-located space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to respond to its request for collocated space within the time required by Education Law §2853(3)(e)(1) and that, when it did respond, DOE failed to offer facilities in violation of Education Law §2853(3)(e).  As relief, petitioner seeks a finding that respondent failed to make an offer of facilities in violation of §2853(3)(e), and that such refusal to make an offer of facilities was arbitrary and capricious or an abuse of discretion.  Petitioner also seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) beginning with the 2014-2015 school year and thereafter.

Respondent denies petitioner’s allegations and requests that the appeal be dismissed in its entirety.[3]

Preliminarily, I note that this appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014. Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5).  Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803.

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 asserts that DOE failed to respond to its request for co-location space with an offer of either co-location space in a public school facility or space in another public or private facility at no cost to petitioner.  Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter and request co-location in a public school building shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to the charter school (Education Law §2853[3][e][1]).

The record indicates that in its December 17, 2014 response to petitioner’s request for space, DOE stated that it did not have “appropriate space in a DOE building in Community School District (CSD) 5 for grades kindergarten through four and therefore cannot extend an offer of co-located space at this time.”  However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner.  Instead, DOE stated only that it could not extend an offer of co-located space.  As it did not offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78.  The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law.  The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.  Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

The record in this case indicates that petitioner was approved by its charter entity to serve students in grades kindergarten through twelve when it was initially chartered in 2002, and that it served students in kindergarten through first grade and grades five through twelve prior to the 2014-2015 school year.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in the second grade, for which it required additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level in the 2014-2015 school year that was approved by its charter entity, albeit in a charter action that occurred prior to the enactment of Education Law §2853(3)(e).  There being no language in the statute limiting its applicability to expansions of grade level approved by a charter entity on or after the effective date of Education Law §2853(3)(e), I find that petitioner has met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space (see Appeal of Global Community Charter School, 54 Ed Dept Rep, Decision No. 16,694; Appeal of Great Oaks Charter School, 54 id., Decision No. 16,692).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner in each remaining year of the charter term, commencing with the 2014-2015 school year, rental assistance based on student enrollment in any newly added grade level(s) for which petitioner has been approved to provide instruction.  Specifically, with respect to an existing charter school whose expansion of grade level is approved by their charter entity before October 1, 2016, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article, before [October 1, 2016], the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner, for newly added grades commencing with the 2014-2015 school year and for each remaining year of the charter, the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.  As noted above, commencing with the 2014-2015 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each year of the current charter term.

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the charter school an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of an alternative privately owned site so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner an amount attributable to the grade level expansion that is the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion.

END OF FILE

 

 

[1] In its answer, respondent refers to itself as the City School District of the City of New York and asserts that it was “improperly sued herein as the New York City Department of Education.”  In this regard, I take administrative notice that respondent’s official website contains a document entitled “Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York” (“by-laws”) (see Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).  In its preamble, the by-laws state in pertinent part as follows:  “The thirteen member body designated as the Board of Education in section 2590-b of the Education Law shall be known as the Panel for Educational Policy. The Panel for Educational Policy is a part of the governance structure responsible for the City School District of the City of New York, subject to the laws of the State of New York and the regulations of the State Department of Education. Other parts of the structure include the Chancellor, superintendents, community and citywide councils, principals, and school leadership teams. Together this structure shall be designated as the Department of Education of the City of New York” (emphasis supplied).  Accordingly, for purposes of an appeal brought pursuant to Education Law §310 challenging the actions of the City School District of the City of New York, such district shall be referred to as the DOE, as described herein.

 

[2] I note that petitioner was originally chartered under the name East Harlem Village Academy Charter School and, by amendment to its Provisional Charter on July 21, 2005, changed its corporate name to Harlem Village Academy Charter School.

 

[3] I note that, although respondent generally denies petitioner’s assertion that the appeal is timely, it does not raise timeliness as a defense.  In any event, petitioner commenced this appeal on January 13, 2015, within the time period required by Education Law §2853(3)(e)(2).