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

Decision No. 17,059

(March 8, 2017)

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

Zachary W. Carter, Corporation Counsel, attorney for respondent, Evan Schnittman, 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 – Union Square (“Union Square” 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 four.[1]  The school was initially approved to serve kindergarten through grade five and opened for instruction in the 2013-2014 school year.  The school will add fifth grade in the 2017-2018 school year, the final year of its current charter term.  According to the parties, SUNY approved a renewal of the school’s charter on October 20, 2016,[2] with authority to provide instruction to students in kindergarten through grade 10.[3]

By letter to DOE dated November 23, 2016, SACS – NYC requested co-location space in a public school building, pursuant to Education Law §2853(3)(e), for the school’s middle school grades, grades five through eight, commencing in the 2017-2018 school year.  By letter dated January 6, 2017, DOE acknowledged petitioner’s November 23, 2016 request for co-location 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 it space in violation of its statutory obligation to do so.  It seeks an order directing DOE to provide rental assistance in accordance with Education Law §2853(3)(e)(5) beginning with the 2017-2018 school year.

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 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, on November 23, 2016, petitioner made a written request, on behalf of the school, for co-location space in a public school building.  The record indicates that in its 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 for the school 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 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 currently serves students in kindergarten through grade four.  The school has been approved by SUNY to serve grades five through eight for which petitioner has requested space.  The school will expand to serve students in grade five in the 2017-2018 school year, and students in grades six through eight in the subsequent three years, expansions for which it requires additional space.  Therefore, on the record before me, petitioner has established that the school requires additional space due to an expansion of grade level that was approved by its charter entity for the 2014-2015 school year or thereafter.  Petitioner has, thus, met all the statutory criteria and I am constrained to find that petitioner is entitled either to a co-location space 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 rental assistance based on student enrollment in the newly-added grade level(s) for which the school has been approved to provide instruction.[4]  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 grade(s), commencing in the 2017-2018 school year, an amount attributable to its expansion for grades five through eight 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 then-current school year (i.e. the 2017-2018 school year) and the positive difference of the charter school’s enrollment in the then-current school year (i.e. the 2017-2018 school 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, petitioner requested co-location space for grades five through eight.  Therefore, its entitlement to any rental assistance is limited accordingly to those grades (see Appeal of Brilla College Preparatory Charter School, 54 Ed Dept Rep, Decision No. 16,735; Appeal of Metropolitan Lighthouse Charter School, 54 id., Decision No. 16,770).

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately-owned site for the school 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 five through eight 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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