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Decision No. 17,727

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

Decision No. 17,727

(August 9, 2019)

Cohen Schneider Law, P.C., attorneys for petitioner, Susan R. Briggs, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Rosemary C. Yogiaveetil, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Dream Charter School, an existing education corporation with authority to operate Dream Charter School Mott Haven (“Dream Mott Haven” 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 the school, 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 multiple charter schools, including Dream Mott Haven.  Dream Mott Haven is authorized to serve students in kindergarten through grade 4 and grades 6 through 8.  It is scheduled to commence instruction in the 2019-2020 school year.[1]  According to petitioner, in its first year of operation, Dream Mott Haven will serve students in kindergarten.[2]  In the 2020-2021 school year, the school will serve students in kindergarten through grade 1, as well as grade 6.  In the 2021-2022 school year, it will serve students in kindergarten through grade 2, as well as grades 6 through 7.  In the 2022-2023 school year, Dream Mott Haven will serve students in kindergarten through grade 3, as well as grades 6 through 8.  In the 2023-2024 school year, it will serve students in kindergarten through grade 4, as well as grades 6 through 8.

By letter dated June 5, 2019, a written request for co-location was submitted for the school’s kindergarten through grade 4 and grades 6 through 8, pursuant to Education Law §2853(3)(e).  By letter dated June 21, 2019, DOE acknowledged the request, 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 it a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for Dream Mott Haven, at no cost to the school, in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay petitioner, commencing with the 2020-2021 school year and continuing thereafter,[3] rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent admits that it failed to offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the school, at no cost to 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 a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for Dream Mott Haven, at no cost to the school, beginning in the 2020-2021 school year, 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 cost to the charter school (Education Law §2853[3][e][1]).

Here, DOE admits that it responded to the co-location request dated June 5, 2019, which sought space beginning in the 2020-2021 school year, and that it did not offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for Dream Mott Haven, at no cost to the school.  However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space for Dream Mott Haven in a privately-owned or publicly owned facility at the expense of the city school district and at no cost to the school.  As DOE has not offered any facilities for the school at the expense of the city school district and at no cost to the school, 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.

In accordance with Education Law §2853(3)(e)(5), DOE is, therefore, required to pay petitioner, beginning in the 2020-2021 school year, rental assistance for Dream Mott Haven based on student enrollment in kindergarten through grade 4, as well as grades 6 through 8 - the grades for which the school has been approved to provide instruction and for which space was requested - during its 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[4] (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment, not the enrollment projections set forth in the charter, for each year of the charter term.  Specifically, with respect to a new charter school, “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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

The record in this case indicates that Dream Mott Haven will first commence instruction in the 2019-2020 school year, serving students in kindergarten.[5]  In the 2020-2021 school year, the school will serve students in kindergarten through grade 1, as well as grade 6.  In the 2021-2022 school year, it will serve students in kindergarten through grade 2, as well as grades 6 through 7.  In the 2022-2023 school year, Dream Mott Haven will serve students in kindergarten through grade 3, as well as grades 6 through 8.  In the 2023-2024 school year, it will serve students in kindergarten through grade 4, as well as grades 6 through 8.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner for the requested kindergarten through grade 4 and grades 6 through 8, commencing in the 2020-2021 school year and in each remaining year of Dream Mott Haven’s 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 the formation of the new charter school that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).  As noted above, DOE is obligated to pay for kindergarten through grade 4 and grades 6 through 8, in the newly-opened charter school, commencing in the 2020-2021 school year and in each remaining year of the initial 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; the amount payable must be based on the charter school’s actual current year enrollment (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).

In this instance, there is no evidence in the record that petitioner has 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 for the school, 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 the school in the future.

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 an amount attributable to the formation of the new charter school that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

END OF FILE

 

[1] 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 regarding petitioner and the school.

 

[2] Petitioner asserts, and respondent admits, that DOE approved a temporary co-location space for the school’s kindergarten for the 2019-2020 school year.

 

[3] Petitioner does not seek rental assistance for the school’s kindergarten for the 2019-2020 school year, as respondent has provided temporary co-located space for said kindergarten for that year.

 

[4] 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).

 

[5] See footnotes 2 and 3.