Appeal of SUCCESS ACADEMY CHARTER SCHOOLS – NYC on behalf of SUCCESS ACADEMY CHARTER SCHOOOL – COBBLE HILL from action of the New York City Department of Education regarding school utilization.

Decision No. 17,053

(February 28, 2017)

Emily A. Kim, Jessie M. Ferguson and Aaron M. Safane, Esqs., attorneys for petitioner

Zachary W. Carter, Corporation Counsel, attorney for respondent, Joshua C. Wertheimer, Esq., of counsel

ELIA, Commissioner.--Petitioner, Success Academy Charter Schools – NYC (“SACS – NYC”), an existing education corporation with authority to operate Success Academy Charter School – Cobble Hill (“Cobble Hill” or “the school”) challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer the school 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 authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate the school, which currently serves students in kindergarten through grade five.[1]  On October 20, 2016, SUNY approved petitioner’s application to renew the school’s charter and petitioner’s request to revise the school’s charter to expand to serve students through grade ten.[2] The school plans to expand its middle school[3] by adding one grade each year beginning with sixth grade in the 2017-2018 school year.  It will complete its middle school expansion in the 2019-2020 school year when it will serve students through grade eight.

By letter to DOE dated May 20, 2016, SACS – NYC requested co-location space in a public school building for the school’s middle school expansion in accordance with Education Law §2853(3)(e).[4]  By letter dated November 1, 2016, DOE responded summarizing the status of petitioner’s request for space and indicating that it planned to post proposals in November 2016 for two co-location sites to serve as middle school hubs for students in grades five through eight.  DOE further indicated that it planned that the Panel for Educational Policy (“PEP”) would vote on the proposals on January 18, 2017.  By letter dated November 14, 2016, petitioner advised DOE that the proposals were insufficient to accommodate the planned middle school enrollment.  By letter dated November 28, 2016, DOE confirmed its plan to proceed with two proposals to open two co-location sites for middle schools to be voted on by the PEP on January 18, 2017.  This appeal ensued.

Petitioner asserts that DOE failed to offer it, on behalf of the school, 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 time period and in violation of its statutory obligation to do so.  Although petitioner originally raised two additional claims, by joint letter dated December 29, 2016, the attorneys for both parties agreed that such claims need not be addressed herein and petitioner withdrew such claims.  It seeks an order directing DOE to pay petitioner rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent 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 offer it any 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 May 20, 2016, petitioner requested co-location space in a public school building for the school’s middle school grades commencing in the 2017-2018 school year.  The record indicates that DOE advised petitioner that it would be proposing two co-location sites to be voted on by the PEP on January 18, 2017.  However, DOE was required by Education Law §2853(3)(e)(1) to offer, within the later of five months after the charter school’s written request for co-location and 30 days after the charter school’s charter was approved by the charter entity, either a co-location site in a public school building approved by the board of education as provided by law or 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 be proposing co-location space to be voted on by the PEP on January 18, 2017, well after the expiration of the statutorily-prescribed offer period.  As DOE did not timely offer petitioner a co-location site for the school in a public school building approved by the board of education as provided by law or space for the school 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 the school was approved by its charter entity on October 20, 2016 to expand to serve students in grades six through ten.  The school will expand to serve students in grade six in the 2017-2018 school year, grade seven in the 2018-2019 school year and grade eight in the 2019-2020 school year, expansions for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that the school requires additional space due to an expansion of grade level commencing with its expansion to grade six in the 2017-2018 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 a timely offer of space in response to petitioner’s request, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner commencing with the 2017-2018 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grade level(s) for which the school has been approved to provide instruction.[5]  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 the school’s newly-added grades commencing with the 2017-2018 school year and for each remaining year of the current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, 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 2017-2018 school year in the first year) and the positive difference of the charter school’s enrollment in the current school year (i.e. the 2017-2018 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 2016-2017 school year).  As noted above, commencing with the 2017-2018 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 and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein (Education Law §2853[3][e][5]).

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately-owned site and respondent must afford petitioner 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 respondent from offering petitioner co-location space for the school in the future.

THE APPEAL IS SUSTAINED.

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 the school’s newly-added grades commencing with the 2017-2018 school year and for each remaining year of the charter term, and for any subsequent renewal term provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, 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 the charter school’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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