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Decision No. 16,708

Appeal of THE NEIGHBORHOOD CHARTER SCHOOL OF HARLEM from action of the New York City Department of Education regarding school utilization.

Decision No. 16,708

(February 17, 2015)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Cliff S. Schneider and Lisa J. Holtzmuller, Esqs., of counsel

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

BERLIN, Acting Commissioner.--Petitioner, The Neighborhood Charter School of Harlem (“Neighborhood” or “the school”), 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 located in private space in Community School District (“CSD”) 5.  Its initial charter was issued on September 13, 2011 for a five year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).

Petitioner is authorized to serve students in kindergarten through fifth grade.  When it first opened for instruction in the 2012-2013 school year, petitioner 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.  Petitioner intends to complete its expansion in the 2016-2017 school year when it will serve students in kindergarten through fifth grade.

By letter to DOE dated July 18, 2014, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) in the 2014-2015 school year when it expands to serve third grade.[2]  By letter dated December 23, 2014, DOE acknowledged petitioner’s July 18, 2014 request for co-located space, but stated that “[s]ince this grade level is currently being accommodated in your private space and the timeline did not align with our ability to consider your July 18, 2014 request for the 2014-2015 school year, we will not be extending an offer of co-located space for the school’s grade 3 in a DOE building in Community School District (CSD) 5 at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to make an offer of facilities for the school’s third-grade expansion within the statutorily prescribed five-month period in violation
of Education Law §2853(3)(e).[3]  As relief, it seeks an order directing DOE to pay rental assistance for such expansion in accordance with Education Law §2853(3)(e)(5).

Respondent generally denies petitioner’s allegations[4] and requests that the appeal be dismissed in its entirety.

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 petitioner’s July 18, 2014 request within the statutorily prescribed five-month period and also claims that in its December 23, 2014 letter, DOE failed to offer petitioner a co-location site in a public school building or space in a privately owned or other publicly owned facility at no cost to petitioner, in violation of Education Law §2853(3)(e).

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.  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]).

Here, petitioner made a written request for co-location space in a public school building on July 18, 2014.  The record indicates that DOE failed to respond to that request by December 18, 2014, within five months of petitioner’s request.  Moreover, the record indicates that ultimately, in its December 23, 2014 response, DOE stated that “[s]ince this grade level is currently being accommodated in your private space and the timeline did not align with our ability to consider your July 18, 2014 request for the 2014-2015 school year, we will not be extending an offer of co-located space for the school’s grade 3 in a DOE building in Community School District (CSD) 5 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 indicated in its December 23, 2014 response only that it would not be extending 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 commenced instruction in the 2012-2013 school year serving students in kindergarten and first grade.  The record further indicates that in the 2013-2014 school year, petitioner 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 a co-location 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 in response to petitioner’s request for space for its expansion into third grade in the 2014-2015 school year, 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 the newly-added third grade 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 an amount attributable to its expansion to grade three, commencing with the 2014-2015 school year and for each remaining year of the charter, that is equal to 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 2013-2014 school year.  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 initial charter term.

In this instance, petitioner also has not been afforded the opportunity to 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 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] Petitioner currently serves its third grade in the private space where it serves its kindergarten through second grade and has incurred rental costs and fees.

 

 

[3] In the petition, petitioner quotes the following language from DOE’s December 23, 2014 response, “[s]ince this grade level is currently being accommodated in your private space and the timeline did not align with our ability to consider your July 18, 2014 request for the 2014-15 school year.” In its memorandum of law, petitioner asserts further that there is no requirement in Education Law §2853(3)(e) that the charter school lack the physical space to serve the grade into which it is permitted to expand or that the request be made by a certain date.  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 petitioner’s memorandum of law, I have not considered those portions containing new allegations that are not set forth in the petition.

 

 

[4] 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 15, 2015, within the time period required by Education Law §2853(3)(e)(2).