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

Decision No. 16,876

(February 11, 2016)

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, Martin Bowe, Esq., of counsel

ELIA, Commissioner.--Petitioner, Hebrew Language Academy Charter School (“the 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 currently authorized to serve students in kindergarten through grade eight in Community School District (“CSD”) 22.  The record indicates that petitioner’s initial charter was issued in January 2009 for a five-year term and authorized the school to serve students in kindergarten through grade five.  The charter was subsequently amended and extended in January 2014.  In March 2015 the charter was again amended and its term extended up through and including June 30, 2019 during which the school will expand to serve students in grades six through eight.

Prior to the 2015-2016 school year, petitioner served students in kindergarten through grade five.  In the 2015-2016 school year, the school expanded to serve students in grade six.  Petitioner will expand to serve grade seven in the 2016-2017 school year and grade eight in the 2017-2018 school year.

By letter to DOE dated October 8, 2015, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) due to its expansion to include sixth, seventh and eighth grades.[1]  By letter dated December 17, 2015, DOE acknowledged petitioner’s October 8, 2015 request for co-located space, but stated that “[w]e will not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer any facilities in violation of Education Law §2853(3)(e) and that such failure was arbitrary and capricious or an abuse of discretion.  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5), beginning with the 2015-2016 school year and continuing thereafter.  Respondent disputes petitioner’s allegations and claims.

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 offer it 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 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]).

Here, petitioner made a written request for co-location space in a public school building on October 8, 2015.  Specifically, petitioner requested space for its expansion to serve sixth through eighth grades under its current charter, beginning in the 2015-2016 school year.  The record indicates that in its December 17, 2015 response, DOE stated that it would “not be extending an offer of 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 indicated in its December 17, 2015 response only that it would not be extending an offer of 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 initially approved by its charter entity to serve students in kindergarten through fifth grade through the 2014-2015 school year.  The record further indicates that, in March 2015, petitioner’s charter was extended through June 30, 2019 and petitioner was authorized to expand to serve grades six through eight.  Specifically, petitioner expanded to serve students in sixth grade in the 2015-2016 school year and will add seventh grade in the 2016-2017 school year and eighth grade in the 2017-2018 school year, expansions for which it requires 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, commencing in the 2015-2016 school year with its sixth grade expansion, as approved by its charter entity in March 2015.  Petitioner has thus 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 Education Law §2853[3][e]).

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 in the 2015-2016 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 its 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 2015-2016 school year and for each remaining year of the current charter term, an amount attributable to its expansion 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 school year prior to the first year of expansion (i.e. the 2014-2015 school year).  As noted above, commencing with the 2015-2016 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 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) and respondent must afford petitioner an opportunity to do so.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent 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 2015-2016 school year and for each remaining year 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.

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