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Decision No. 16,703

Appeal of HEKETI COMMUNITY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,703

(February 11, 2015)

DLA Piper LLP, attorneys for petitioner, Dennis M. Cariello, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Janice Birnbaum, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Heketi Community Charter School (“Heketi School”), challenges the New York City Department of Education’s (“DOE” or “respondent”) 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 located in Community School District 7.  Its initial charter was issued on December 14, 2010 for a five year term.[1]

Petitioner is authorized to serve students in kindergarten through fifth grade.  When it first opened in the 2012-2013 school year, the Heketi School served students in kindergarten and first grade; it added second grade in the 2013-2014 school year and third grade in the 2014-2015 school year.

By letter to DOE dated July 10, 2014, petitioner requested co-location space for its “newly provided” third grade in a public school building pursuant to Education Law §2853(3)(e).  By email to DOE dated December 9, 2014, petitioner clarified its intention to request co-location space for grades four and five.  By letter dated December 10, 2014, DOE acknowledged petitioner’s July 10, 2014 request for space but stated that it did not have “appropriate space in a DOE building in Community School District (CSD) 7 and therefore cannot extend an offer of co-located space at this time.”  This appeal ensued.

Petitioner asserts that DOE’s failure to offer access to any space was arbitrary and capricious and a violation of Education Law §2853(3)(e).  It seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5) “for all students in the Third, Fourth and Fifth grades, for which the Heketi School has been approved to provide instruction during the term of its charter and for each year the Heketi School is authorized to operate, whether under the current or any subsequent charter.”

Respondent contends that the relief requested exceeds that authorized by law and requests that the appeal be dismissed.  It also contends that the Heketi School has not provided DOE with evidence of the actual rental cost of an alternative privately owned site selected by it.

In its reply, petitioner asserts that DOE makes no argument, offers no affirmative defenses and points to no facts that lead to the conclusion that the Heketi School is not entitled to relief under Education Law §2853(3)(e).  Petitioner also clarifies its request for relief indicating that it is requesting relief for the addition of third grade in the 2014-2015 school year with the “recognition that it will be entitled to the relief it requested for the additional grades (fourth and fifth the grades) when Heketi ultimately adds those grades.”  Further, petitioner acknowledges that it will ultimately have to provide evidence of the actual rental cost to DOE, but that failure to do so at the appeal stage does not render the appeal deficient.

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).

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 approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities ... for such charter schools that require additional space due to an expansion of grade level for those grades newly provided.  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 10, 2014 response to petitioner’s request for space, DOE indicated that it did not have “appropriate space in a DOE building in Community School District (CSD) 7 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 kindergarten through fifth grade and that it commenced instruction in the 2012-2013 school year serving students in kindergarten and first grade.  In the 2013-2014 school year, it began serving students in second grade.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in third 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 co-located space or to an offer of private or other publicly owned space (see Appeal of Great Oaks Charter School, 54 Ed Dept Rep, Decision No. 16,692).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), commencing with the 2014-2015 school year and for the remainder of the charter term, pay petitioner 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 for the remainder of the charter term,[2] 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 the 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 for the remainder of the 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 lesser than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

DOE notes that petitioner has not provided evidence of the actual rental cost of an alternative privately owned site selected by petitioner.  Petitioner acknowledges that it will ultimately have to provide evidence of actual rental cost to DOE.  Upon receipt, petitioner must present such evidence to DOE.

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, for newly-added grades commencing with the 2014-2015 school year for the remainder of the charter term 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 expansion.

END OF FILE

 

 

 

[1] In paragraph 1 of the petition, petitioner asserts that it is authorized to provide instruction for the “2011-2017” school years.  In paragraph 4 of the petition, petitioner asserts that it had planned to commence instruction in the 2011-2012 school year, but due to the unavailability of space, delayed opening until the 2012-2013 school year.  Petitioner claims that, “[a]s a result” of this delay, the duration of its initial charter period was extended by one year.  However, the record indicates that the provisional charter issued to petitioner on December 14, 2010 is valid for a term up through and including December 13, 2015 (see Exhibit A to the Petition).

 

[2] As noted above, the record indicates that the current term of petitioner’s charter ends on December 13, 2015.  The charter may, of course, be renewed and the term extended.