Decision No. 16,889
* Subsequent History: Matter of New York City Dept. of Educ. v Boys Preparatory Charter School of N.Y.; Supreme Court, Albany County; Decision and Order dismissed petition to review; April 19, 2017. *
Appeal of BOYS PREPARATORY CHARTER SCHOOL OF NEW YORK from action of the New York City Department of Education regarding school utilization.
Decision No. 16,889
(March 24, 2016)
Mayer Brown LLP, attorneys for petitioner, Philip O. Brandes, Joseph De Simone and Niketa K. Patel, Esqs., of counsel
Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel
BERLIN, Acting Commissioner.--Petitioner, Boys Preparatory Charter School of New York (“Boys Prep” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it access to facilities 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 the Board of Trustees of the State University of New York (“SUNY”) and currently co-located with P.S. 107 in Building X107 in Community School District (“CSD”) 8. Its current charter expires on July 31, 2019.
Petitioner is authorized to serve students in kindergarten through fifth grade. On May 2, 2013, DOE issued an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”), pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3), proposing the co-location of Boys Prep with P.S. 107 in Building X107, with a maximum charter school enrollment between 270 and 360 students. A public hearing was held on June 11, 2013 and, on June 19, 2013, respondent’s Panel for Educational Policy (“PEP”) approved the co-location of Boys Prep with P.S. 107 in Building X107, beginning in the 2014-2015 school year. When it first opened for instruction in the 2014-2015 school year, petitioner served students in kindergarten and first grade It expanded to serve students in second grade in the 2015-2016 school year. Petitioner will add third grade in the 2016-2017 school year and plans to expand one grade level in each succeeding school year until the 2018-2019 school year, when it will serve students in kindergarten through fifth grade.
By letter to DOE dated October 20, 2015, petitioner requested “space in a building located in Bronx Community School District 8 (‘CSD 8’) for grades Pre-Kindergarten-5.” In its letter, petitioner indicated that “[a]s Boys Prep Bronx opened in August 2014, and requires additional space due to grade expansion, we are entitled to an adequate facility.” By letter dated February 8, 2016, DOE acknowledged petitioner’s October 20, 2015 request for space, but stated that it would “not be extending an offer of space at this time.” This appeal ensued.
Petitioner asserts that it is eligible for facilities under Education Law §2853(3)(e) because its current space is and always has been insufficient. It further asserts that it first commenced instruction in 2014, was approved by SUNY to serve kindergarten through grade five, submitted a written request to DOE for space and was not offered “reasonable, appropriate and comparable” space in response to its request. It argues that DOE’s failure to offer space is a violation of law and arbitrary and capricious. Petitioner seeks an order directing DOE to either provide adequate space at no cost to petitioner, or rental assistance in accordance with Education Law §2853(3)(e)(5), beginning in the 2016-2017 school year through each remaining year of the charter term.
Respondent contends that petitioner is estopped from asserting that its current space is and has always been inadequate and that petitioner’s claims are barred by the doctrine of laches. Respondent further contends that the provisions of Education Law §2853(3)(e) do not apply where a charter school desires to increase its enrollment in grades for which co-location space has already been provided. In addition, respondent asserts that, to the extent petitioner is seeking additional space to accommodate a pre-kindergarten program, petitioner is not entitled to space for a universal pre-kindergarten program under Education Law §2853(3)(e). It requests that the appeal be dismissed in its entirety.
Petitioner filed a reply asserting that it is entitled to relief under Education Law §2853(3)(e) as a school that commenced instruction in the 2014-2015 school year, that it is not precluded from relief despite its prior co-location, that it seeks rental assistance, not rental assistance in addition to co-location space and that the laches doctrine does not apply.
Initially, I will address the procedural issues. Petitioner claims that the space it is currently allocated in Building X107 is and has always been insufficient to accommodate its three-section-per-grade model. It asserts that it had no choice but to accept the co-location space in 2013 because there was no alternative space or legal remedy, but that it now is entitled to relief under Education Law §2853(3)(e). To the extent petitioner attempts to challenge the PEP’s 2013 co-location determination, the appeal is untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Petitioner could have challenged the PEP’s approval of co-location space in 2013, but instead chose to accept the space. Its determination not to pursue administrative recourse or to otherwise challenge the sufficiency of the co-located space does not extend its time to appeal.
I find no merit to DOE’s assertion that petitioner should be estopped from challenging the sufficiency of space provided to it, beginning with the 2014-2015 school year, in the BUP approved by the PEP in 2013. Education Law §2853(3)(e) was enacted in 2014 and provides an additional mechanism for charter schools to request co-location space. At the time petitioner accepted the offered co-location space in 2013, it could not have known that Part BB of Chapter 56 of the Laws of 2014 would be enacted and would provide charter schools in respondent’s school district with greater access to co-located space. Therefore, I find no evidence of fraudulent or inequitable conduct on petitioner’s part that would warrant application of equitable estoppel to bar petitioner’s claim (see Appeal of Hollister, 39 Ed Dept Rep 109, Decision No. 14,188).
Nor are petitioner’s claims barred by the doctrine of laches as respondent asserts. Petitioner requested additional space in October 2015, commenced this appeal within 30 days of the denial of its request and seeks relief commencing in the 2016-2017 school year.
Turning to the merits, 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 October 20, 2015 request for space with an offer of “reasonable, appropriate and comparable” facilities 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 are approved by their charter entity to first commence instruction 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[e]).
Petitioner asserts that it is eligible for space under Education Law §2853(3)(e) “as a charter school that commenced instruction in the 2014-2015 school year.” It argues that the statute makes clear that relief is afforded to charter schools that commence instruction in the 2014-2015 school year or charter schools that require additional space due to grade expansion, and that it is seeking relief under Education Law §2853(3)(e) as a charter school that commenced instruction in the 2014-2015 school year.
Respondent asserts based on an unconsolidated law that was added by section 2 of Part BB of Chapter 56 of the Laws of 2014 that it is precluded from withdrawing, altering or revoking petitioner’s current co-location in Building X107. That provision provides as follows:
Notwithstanding any provision of law to the contrary, any approval prior to January 1, 2014, ... of a significant change in school utilization relating to the co-location of a school authorized pursuant to article 56 of the education law ... shall not, on or after the effective date of this act, be altered, revised, amended, revoked, overturned, or withdrawn ... without the consent of the charter school approved for co-location....
Respondent’s reliance on such provision is misplaced. In this instance, petitioner requested space, thereby effectively providing consent to a change in its existing co-location. Thus, DOE is not restricted by such provision and the provisions of Education Law §2852(3)(e) apply. I note that in its reply, petitioner indicated that if it were awarded rental assistance through the 2018-2019 school year, it would vacate its current co-location space.
Here, the record indicates that petitioner first commenced instruction in the 2014-2015 school year, and I agree with petitioner that it is therefore eligible for space under Education Law §2853(3)(e).
The record also indicates that DOE has provided co-location space to petitioner at no cost commencing in the 2014-2015 school year. The record further indicates that, by letter to DOE dated October 20, 2015, petitioner stated that it was entitled to an adequate facility. It also requested additional space due to grade expansion, which DOE denied. However, while DOE denied petitioner’s request for additional space due to grade expansion, it continued to provide co-location space to petitioner in Building X107. Pursuant to Education Law §2853(3)(e)(1), the space provided must be reasonable, appropriate and comparable.
Petitioner asserts that the space it is currently allocated in Building X107 is insufficient to accommodate its three-section-per-grade model and is not reasonable, appropriate and comparable. It claims that in the 2016-2017 school year, when it will serve students in kindergarten through grade three, it will need a minimum of 20 rooms to serve three sections per grade according to DOE’s Instructional Footprint, but that it is allocated only 14 and 3/4 rooms because the BUP assumes it will have only 7 sections. Petitioner further claims that in the 2017-2018 school year, it will require at least 23 rooms to meet its three-section-per-grade model.
The BUP provides that the Footprint sets forth the baseline number of rooms that should be allocated to a school based on the grade levels served and number of classes per grade. According to the BUP, the Footprint allocates one full-size classroom for each general education or integrated co-teaching section. In addition, the Footprint allocates rooms for student support services, resource rooms and administrative services. The record indicates that the space allocated to petitioner in Building X107 does not meet the requirements of the Footprint, DOE’s standard for the usage of space in DOE’s buildings. Therefore, the space provided to petitioner is not comparable to the space offered to other public schools in a co-located space. Accordingly, I find that petitioner has met its burden of demonstrating that the space it is allocated in Building X107 is not comparable.
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.
In accordance with Education Law §2853(3)(e)(5), DOE is therefore required to pay rental assistance based on student enrollment in all grades for which petitioner has been approved to provide instruction during the remaining term of its charter (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690). I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment. Specifically, with respect to a new charter school whose charter is granted 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 formation of the new charter school 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 (i) for a new charter school that first commences instruction on or after July first, , the charter school’s current year enrollment ... ” (Education Law §2853[e]).
While the record in this case indicates that petitioner first commenced instruction in the 2014–2015 school year serving students in kindergarten and grade one and added grade two in the 2015-2016 school year, petitioner seeks relief commencing in the 2016-2017 school year through each remaining year of the charter term. In the 2017-2018 school year, petitioner will begin serving students in grade four and, in the 2018-2019 school year, students in grade five. Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner commencing in the 2016-2017 school year and in each remaining year of the 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 petitioner’s basic tuition for the then-current school year (e.g., the 2016-2017 school year in the first year) and petitioner’s enrollment for the then-current school year (e.g., the 2016-2017 school year in the first year). As noted above, DOE is obligated to pay for all the grades in the newly-opened charter school in each remaining year of the charter term; the amount payable must be based on the charter school’s actual current year enrollment (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).
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.
In light of the above disposition, I need not address the parties’ remaining contentions.
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 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 then-current school year and petitioner’s then-current year enrollment.
END OF FILE
 Although the school is referred to as “Boys Preparatory Charter School of the Bronx” in the caption of petitioner’s pleadings, pursuant to §276.6 of the Commissioner’s regulations, I take administrative notice of records on file with the State Education Department indicating that the name of the school is “Boys Preparatory Charter School of New York.”
 This is petitioner’s second appeal challenging DOE’s failure to offer it access to facilities pursuant to Education Law §2853(3)(e) (see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,788). In that appeal, I found that petitioner failed to establish that it required additional space due to an expansion of grade level. In its petition, petitioner claims that the appeal was dismissed “based on a factual error with regards to the renewal of Boys Prep’s charter on June 1, 2015.” I note that while the Commissioner’s regulations governing the reopening of prior decisions do not apply to charter school co-location appeals pursuant to Commissioner’s regulations §276.11 (see 8 NYCRR §276.8[f]), petitioner did not file an Article 78 proceeding challenging the prior decision.
 Although not entirely clear, the petition also contains language that the school is expanding grade levels.
 To the extent petitioner is requesting space for its pre-kindergarten program, I have previously decided that pre-kindergarten is a program not a grade and, accordingly, an expansion of grade level under Education Law §2853(3)(e) does not include a charter school’s provision of a pre-kindergarten program pursuant to Education Law §3602-ee (see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,788).
 According to DOE, the Instructional Footprint is used as a tool to assist in the analysis and assessment of space usage in DOE buildings.
 Unlike petitioner’s prior appeal, in which petitioner sought relief based only on a grade expansion, in this appeal, petitioner asserts that it is a charter school that first commenced instruction in the 2014-2015 school year.