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Questions and Answers Concerning Appeals to the Commissioner Involving New York City Charter School Location/Co-Location and Building Usage Plans

1. Is there a statute of limitations for bringing an appeal involving New York City charter school location/co-location and building usage plans?

Yes.  You must serve your papers no more than thirty (30) days after the action you are challenging has taken place.

2. Must an affected charter school be served with the petition and be made part of the appeal?

Yes. A charter school, whose rights would be adversely affected by a determination of an appeal in favor of a petitioner, is a necessary party and must be joined as a respondent in the appeal. Accordingly, you must name the charter school, along with the New York City Department of Education, in the caption as a respondent.  You must also serve a copy of the Notice of Petition, Verified Petition and, if included, Memorandum of Law on the charter school.

3. What is the consequence if the charter school is not served with the petition and joined as a party to the appeal?

The appeal may be dismissed for failure to join a necessary party.

4. May the Notice of Petition and Petition be served by mail? 

No.  To establish jurisdiction, the Notice of Petition, Petition and any supporting papers must be personally served upon both the New York City Department of Education and the charter school by personal delivery by a person over the age of 18 who is not a party to the appeal. See, §275.8

5. Must I be represented by an attorney?

No.  You are not required to have an attorney, though it may be to your advantage to do so.

6. Must I submit a Memorandum of Law?

No.  A Memorandum of Law is not required.  However, if you choose to submit one, it must be served and filed with the petition.

7. Will extensions be granted from the time periods prescribed in § 276.11 of the Commissioners’ Regulations?

Generally, no. Appeals from actions relating to New York City charter school location/co-location or building usage plans must be finally determined within 10 business days of receipt of the answer by the New York City Department of Education. A failure to serve an answer or a reply within the prescribed time periods may be excused by the Commissioner for good cause beyond the control of the party requesting such relief.

8. Can I apply for a stay order while my appeal is pending?

No.  The time frame for rendering a final decision in an expedited New York City charter school location/co-location appeal is so short that the appeal should be finally determined within at most a few days of the earliest date on which a stay order could be issued. 

9. Do I use the same forms for petitions, replies, verifications, affidavits of service and other papers as in other section 310 appeals?

Generally, the forms are the same.  However, the Notice of Petition is different.  Please refer to Notice.

10. What will the Commissioner consider in making a determination?

The Commissioner will consider only documents that are properly submitted as part of the record before him (i.e., verified pleadings, affidavits, or reports or records of the State Education Department).  Copies of every challenged Educational Impact Statement (EIS) and/or Building Utilization Plan (BUP) must be provided with the petition.

11. If I have questions about my appeal or the procedures in appeals involving New York City charter school location/co-location or building usage plans, who should I contact? 

You should contact the Office of Counsel of the New York State Education Department at 518-474-6400.