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

Decision No. 16,930

(July 21, 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, Neil Giovanatti, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Bronx Community 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 authorized by the Chancellor of the City School District of the City of New York (“Chancellor”) to serve students in kindergarten through grade eight and is currently located in private space in Community School District (“CSD”) 10.  Petitioner’s initial charter was issued in January 2008 for a five-year term.  In 2013, it was extended first for a term up through and including June 30, 2013, and then for a term up through and including June 30, 2015.  In 2015, the school’s charter was further extended for a term up through and including June 30, 2020.

Petitioner commenced instruction in the 2008-2009 school year serving students in kindergarten and grade one. It added one grade level in each succeeding school year and in the 2014-2015 school year it served students in kindergarten through grade five.  In May 2015, the Chancellor approved petitioner’s request to revise its charter to add grades six through eight.[1]  In the 2015-2016 school year, petitioner expanded to serve grade six.  Petitioner intends to expand to serve students in grade seven in the 2016-2017 school year and grade eight in the 2017-2018 school year.

By letter to DOE dated February 11, 2016, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its grade six through eight expansion.  By letter dated May 23, 2016, DOE acknowledged petitioner’s February 11, 2016 request for co-location space, but stated that “[w]e will not be extending an offer of space for the 2016-2017 school year at this time.”[2]  This appeal ensued.

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, within the statutorily prescribed five-month period and in violation of its statutory obligation to do so.  It seeks an order directing DOE to comply with its statutory obligation under Education Law §2853(3)(e)(5) beginning with the 2015-2016 school year and continuing thereafter.

Respondent contends that petitioner’s request for space for the 2015-2016 school year should be denied under the doctrine of laches.  Respondent requests that the appeal be dismissed in its entirety.

In its reply, petitioner contends that its claims are not barred by the doctrine of laches.

Initially, I will address the procedural issue.  Respondent raises as an affirmative defense that the appeal must be dismissed under the doctrine of laches.  Respondent argues that petitioner “unreasonably sat on its rights” to request funding for the 2015-2016 school year until months after the school year began and that it failed to make its demand for space within a reasonable time after the right to make the request occurred.  Respondent contends that petitioner’s unreasonable delay prejudiced it from having sufficient time to co-locate and offer space prior to the start of the 2015-2016 school year. 

The equitable doctrine of laches bars the enforcement of a right where there has been unreasonable and inexcusable delay that results in prejudice to a party (Skrodelis v. Norbergs, 272 AD2d 316).  The legal doctrine of laches precludes a party from unreasonably sitting on its rights, irrespective of any corresponding prejudice to the adverse party (Matter of Central School District No. 2 of Towns of Coeymans, et al., v. New York State Teachers’ Retirement System, et al., 27 AD2d 265, 268; see also Devens v. Gokey, et al., 12 AD2d 135, 137; Appeal of the Board of Education of the Manhasset Union Free School District, 49 Ed Dept Rep 428, Decision No. 16,072).  Respondent appears to be asserting laches under both doctrines.  However, for the reasons set forth below, I find that dismissal for laches is not warranted. 

Pursuant to Education Law §2853(3)(e)(5)(1), in addition to the option of offering co-located space in a public school building, DOE also had the option of offering the school space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no cost to the school.  While respondent asserts that the timing of petitioner’s request for space prohibited it from offering co-located space, respondent does not address why the timing of petitioner’s request for space precluded it from offering petitioner space in a privately-owned or other publicly-owned facility.  I note that DOE could have responded to petitioner’s February 2016 request for space at that time with an offer of space in a privately-owned or other publicly-owned facility.  Instead, DOE not only failed to respond until May 2016, but failed to extend any offer of space at all.  Given that a request for space is not required to be made prior to or at the beginning of a school year and that DOE had options available other than co-location in a public school, I find that respondent has not demonstrated on these facts that petitioner’s request was unreasonably delayed or that it was prejudiced by receipt of the request for space in February 2016.  Under the circumstances of the case, I decline to apply either doctrine of laches.

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 offer it 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 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 cost to the charter school (Education Law §2853[3][e][1]).

Here, by letter dated February 11, 2016, petitioner requested co-location space in a public school building for its sixth through eighth grade expansion commencing in the 2015-2016 school year.  The record indicates that, in its May 23, 2016 response, DOE stated that it would “not be extending an offer of space for the 2016-2017 school year 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 cost to petitioner.  Instead, DOE indicated in its 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 cost 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 in May 2015 to expand to serve students in grades six through eight.  Petitioner expanded to serve students in grade six in the 2015-2016 school year, and will expand to serve students in grade seven in the 2016-2017 school year and grade eight 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 with its expansion to grade six in the 2015-2016 school year.  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 current charter term, commencing with 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, “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 ... 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, 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 (i.e. the 2015-2016 school year in the first year) and the positive difference of the charter school’s enrollment in the current school year (i.e. the 2015-2016 school year in the first 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 (Education Law §2853[3][e][5]).

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 lesser 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 then-current school year and the positive difference of the charter school’s enrollment in the then-current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

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