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

Decision No. 16,906

(May 16, 2016)

Cohen Schneider & O’Neill LLP, attorneys for petitioner, Susan R. Briggs, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent

ELIA, Commissioner.--Petitioner, Dream Charter School (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it 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 in part.

Petitioner is a charter school authorized by the Chancellor of the City School District of the City of New York (“Chancellor”) to serve students in kindergarten through grade 12 and is currently located in private space in Community School District (“CSD”) 4.  Petitioner’s initial charter was issued in January 2008 for a five-year term.  In 2013, it was extended first for a term up through and including June 30, 2013, and then for a term up through and including June 30, 2018.

Petitioner commenced instruction in the 2008-2009 school year serving students in kindergarten and grade 1.  It added one grade in each succeeding school year and is currently serving students in kindergarten through grade 8.  In January 2016, the Chancellor approved petitioner’s request to revise its charter to add grades 9 through 12.[1]  Petitioner intends to expand to serve students in grade 9 in the 2017-2018 school year, the final year of its current charter term.[2]

By letter to DOE dated November 11, 2015, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its planned expansion.  By letter dated March 22, 2016, DOE acknowledged petitioner’s November 11, 2015 request for co-location space, but stated that “[w]e will not be extending an offer of space at this time.”[3]  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, at no cost to petitioner, within the statutorily prescribed five-month period and in violation of its statutory obligation to do so.  It seeks an order directing DOE to comply with its statutory obligation under Education Law §2853(3)(e)(5).

Respondent requests that the appeal be dismissed in its entirety.[4]

Preliminarily, I will address a procedural issue.  Petitioner objects to respondent’s late answer.[5]  An answer in a charter school co-location appeal must be served within ten business days of service of the petition (8 NYCRR §276.11[e][1]).  If an answer is not served and filed in accordance with the provisions of the Commissioner’s regulations, the statements contained in the petition will be deemed to be true statements, and a decision will be rendered thereon by the Commissioner (8 NYCRR §276.11[c][2]).  A late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (8 NYCRR §276.11[e][1]).

The petition was served upon respondent on April 13, 2016.  Respondent was required to serve its answer by April 27, 2016 by personal delivery or next day delivery by express mail or a private delivery service (see 8 NYCRR §276.11[e][2]).  Respondent submitted an affirmation of service indicating that its answer was served upon petitioner on April 26, 2016 “by sending true copies thereof, enclosed in a securely sealed, postage paid envelope, addressed to ... counsel to petitioner ...”  However, according to an affirmation by petitioner’s attorney, in the nature of a reply,[6] the verified answer was sent to her via regular mail and the envelope containing the verified answer and submitted with the affirmation was meter stamped on April 27, 2016, but not postmarked until April 28, 2016.  Petitioner’s attorney stated that, to the best of her knowledge, the verified answer was received on Saturday April 30, 2016.  Respondent does not dispute these contentions.[7]  Under 8 NYCRR §276.11(e), petitioner only has two business days from the date of service to submit a reply, so even such a short delay can be prejudicial.  Accordingly, I find that respondent’s answer is untimely and will not accept it for consideration.

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, petitioner made a written request for co-location space in a public school building on November 11, 2015.  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 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 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 petitioner currently serves students in kindergarten through grade 8.  The record further indicates that in January 2016, petitioner’s request to expand to serve students in grades 9 through 12 was approved by its charter entity.  Petitioner will expand to serve students in grade 9 in the 2017-2018 school year, an expansion for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level, with its expansion to grade 9 in the 2017-2018 school year, that was approved by its charter entity in January 2016.  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 such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner for the 2017-2018 school year, the final year of the current charter term, rental assistance based on student enrollment in the newly-added grade 9 for which petitioner has been approved to provide instruction.  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 an amount attributable to its grade 9 expansion for the 2017-2018 school year, the final year of its charter term, 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.  As noted above, for the 2017-2018 school year, the final year of the current charter term, DOE is obligated to pay for the facilities for the charter school’s ninth grade (Education Law §2853[3][e][5]).

In this instance, petitioner also has not been afforded the opportunity to 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 in the future.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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 its ninth-grade expansion in the 2017-2018 school year, 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 petitioner’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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