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Decision No. 17,526

Appeal of BRILLA COLLEGE PREPARATORY CHARTER SCHOOLS from action of the New York City Department of Education regarding school utilization.

Decision No. 17,526

(October 17, 2018)

Barton Gilman LLP, attorneys for petitioner, Lisa J. Holtzmuller and Paul O’Neill, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Mark G. Toews, Esq., of counsel

ELIA, Commissioner.--Petitioner, Brilla College Preparatory Charter Schools, an existing education corporation with authority to operate Brilla College Preparatory Charter School (“BCPCS” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner a co-location site for the school in a public school building or space in a privately-owned or other 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 two charter schools, including BCPCS.[1]  BCPCS was initially authorized to serve students in kindergarten through grade 5.[2]  In 2017, SUNY approved petitioner’s request to renew and revise the school’s charter, authorizing the school to expand to serve students in kindergarten through grade 8.  The school expanded to serve students in grade 6 in the 2018-2019 school year and will expand to serve students in grade 7 in the 2019-2020 school year and grade 8 in the 2020-2021 school year.

Initially, by letter to DOE dated August 7, 2018, petitioner requested space for the school’s grades 6 through 8, pursuant to Education Law §2853(3)(e).  Subsequently, on or about August 20, 2018, petitioner submitted a written request for co-location for BCPCS’s grades 6 through 8 using DOE’s online “Portal.”[3]  By letter dated August 22, 2018, DOE acknowledged the request for space for the school, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for BCPCS, at no cost to the school, in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay, beginning with the 2018-2019[4] school year and continuing thereafter, an amount attributable to the school’s grade level expansion, in accordance with Education Law §2853(3)(e)(5).

In its answer, respondent admits that it has not offered petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the school and that petitioner is eligible for a finding in its favor.

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner asserts that DOE failed to offer BCPCS a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, 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 August 7, 2018, and August 20, 2018, petitioner requested co-location space for the school’s expansion to serve grades 6 through 8.  The record indicates that, in its August 22, 2018 response to petitioner’s request for co-location space, 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 BCPCS in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space for the school in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to petitioner.  As DOE did not offer petitioner any facilities at the expense of the city school district and at no cost to petitioner, it 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, in 2017, BCPCS was approved by its charter entity to expand to serve students in grades 6 through 8.  The school expanded to serve students in grade 6 in the 2018-2019 school year, and it will expand to serve students in grade 7 in the 2019-2020 school year and grade 8 in the 2020-2021 school year, expansions for which it requires additional space.[5]  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 that was approved by its charter entity for the 2014-2015 school year or thereafter.  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 for the school (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, commencing with the 2018-2019 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 grades 6 through 8 for which the school has been approved to provide instruction.[6]  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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

Therefore, DOE must pay petitioner for the school’s newly-added grade 6 commencing in the 2018-2019 school year, grade 7 commencing in the 2019-2020 school year, and grade 8 commencing in the 2020-2021 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, an amount attributable to its expansion to grades 6 through 8 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

Petitioner’s superintendent avers that the school plans to house its grade expansion in a facility located in Community School District 7.  To the extent petitioner secures a privately-owned site to accommodate its grade expansion, 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 for BCPCS 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 for each remaining year of the current 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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

END OF FILE

 

[1] Prior to its merger with petitioner, BCPCS — at the time, a separate education corporation initially chartered in 2012 — was authorized to serve students in kindergarten through grade 5.  In 2017, BCPCS was merged with Brilla College Preparatory Charter School at Highbridge (“Highbridge”), with Highbridge as the surviving education corporation, under the amended name of “Brilla College Preparatory Charter Schools.”  BCPCS’s charter was subsequently renewed through 2023.  Pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of the records on file with the New York State Education Department in this regard.

 

[2] Prior to its merger with petitioner, BCPCS appealed DOE’s failure to respond to its September 8, 2014 request for co-location space for grades 3 through 5.  On April 6, 2015, a decision was issued ordering DOE to comply with the requirements of Education Law §2853(3)(e)(5) with respect to such expansion (see Appeal of Brilla College Preparatory Charter School, 54 Ed Dept Rep, Decision No. 16,735). 

 

[3] Request for Charter School Co-location in DOE Facilities, Item 2(11).

 

[4] In an apparent typographical error, the Verified Petition recites “2019-2019” in its wherefore clause.

 

[5] According to petitioner’s superintendent, as a result of DOE’s failure to offer space, the school will incur rental costs and expenses.

 

[6] To be eligible for an apportionment pursuant to Education Law §3602(6-g) where the charter school has prevailed in an appeal to the Commissioner pursuant to Education Law §2853(3)(e), DOE must document all expenses incurred pursuant to Education Law §2853(3)(e)(5) for each such charter school for the term of the charter indicated in the Commissioner’s decision, including any renewals pursuant to Education Law §2851(4), provided that the charter school serves the grades encompassed by the charter that was the subject of the Commissioner’s decision (see New York State Education Department, Update on Facilities Assistance Guidance for NYC Charter Schools, dated November 3, 2016).