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

Decision No. 16,717

(February 26, 2015)

Herrick, Feinstein LLP, attorneys for petitioner, Susan T. Dwyer and Leah Kelman, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Evan Schnittman, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Bushwick Ascend Charter School (“petitioner”), challenges the New York City Department of Education’s (“respondent” or “DOE”) 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.

Petitioner is a charter school authorized by DOE to serve students in kindergarten through grade five in Community School District (“CSD”) 32.  Bushwick’s initial charter was issued in February 2010 for a five year term.[1]  Prior to the 2014-2015 school year, petitioner served students in kindergarten through grade four.  In the 2014-2015 school year, it expanded to include a fifth grade class and now serves students in kindergarten through fifth grade.

By letter dated July 30, 2014, DOE was notified of petitioner’s need for co-location space in a public school building “for the newly provided Grade 5 ... in close proximity to our current school.”  By letter dated August 7, 2014, DOE acknowledged the July 30, 2014 request for co-location space and stated that the letter had been forwarded “to staff members within the New York City Department of Education’s Office of Charter School Accountability and Support for review.”  By letter dated January 26, 2015, DOE responded to petitioner’s July 30, 2014 request, indicating that it would “not be extending offers of co-located space in DOE buildings at this time.”  Petitioner commenced this appeal on January 28, 2015.[2]

Petitioner asserts that DOE failed to respond to its request for co-located space within the time required by Education Law §2853(3)(e)(1), failed to offer it co-located space in a public school building or in a privately owned or publicly owned facility at DOE’s expense as required by the statute, and that such failure is arbitrary and capricious.  As relief, petitioner seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

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 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 grade five when it was initially chartered in 2010, and that it served students in kindergarten through fourth grade prior to the 2014-2015 school year.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in the fifth 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 initially in a charter action that occurred prior to the enactment of Education Law §2853(3)(e).  In this instance DOE subsequently approved renewal of the charter in January 2015, thereby determining that the grade level expansion of grade five in the 2014-2015 school year should continue.  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.

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 current charter term, 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, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each remaining year of the current charter term, as renewed and extended in January 2015.

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.

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.

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