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Decision No. 18,397

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

Decision No. 18,397

(April 2, 2024)

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

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorney for respondent, Jeffrey S. Dantowitz, Esq., of counsel

ROSA., Commissioner.--Petitioner, Pharos Academy Charter School (“the school” or “Pharos”), 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 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 respondent’s Chancellor to serve students in kindergarten through grade 12.  According to petitioner, its initial charter was issued in May 2004, under the name of “Bronx Lighthouse Charter School.”  Petitioner’s charter was subsequently renewed in 2009, 2014, 2016, 2019, and 2022.  According to petitioner, as part of its 2014 renewal, the school’s charter, in pertinent part, was revised to authorize petitioner to serve students in grade 12.  Petitioner further asserts that the school expanded to serve students in grade 12 during the 2014-2015 school year.[1]

On February 26, 2024, petitioner submitted a written request for co-location for petitioner’s grade 12 pursuant to Education Law § 2853 (3) (e).  By letter dated March 1, 2024, DOE acknowledged the request for space 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, at no cost to the school, in violation of Education Law § 2853 (3) (e).  As relief, it seeks an order directing DOE to pay rental assistance, commencing with the 2023-2024 school year, for its grade 12 in accordance with Education Law § 2853 (3) (e) (5).

Respondent alleges that petitioner’s request for rental assistance is barred by the doctrine of laches since the school did not make its request for approximately ten years after it was first authorized to operate the requested grade in the 2014-2015 school year.  Respondent otherwise admits 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 at no cost to the school.

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.  This provision requires DOE to offer co-location to a qualified charter school within five months after a school’s written request for co-location or 30 days after the school’s charter is approved by its charter entity, whichever is later (Education Law § 2853 [3] [e] [1]).  It also “allow[s] New York City charter schools to rent private facilities at public expense so long as they requested, and were denied, co-location within a public-school building” (Appeal of Hellenic Classical Charter School – Staten Island, 63 Ed Dept Rep, Decision No. 18,352).  A denial of an “offer or failure to offer a co-location site” may be appealed “through ... an expedited appeal to the commissioner” pursuant to Education Law § 310 and the procedures described in Education Law § 2853 (3) (a-5).

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).

The record reflects that respondent, petitioner’s charter entity, authorized it to expand to serve students in grade 12 in the 2014-2015 school year, an expansion for which the school requires additional space or rental assistance.[2]  Petitioner requested co-location in February 2024, which DOE subsequently denied.  Petitioner has, thus, met all the statutory criteria and is entitled either to co-location or an offer of private or other publicly-owned space (see Education Law § 2853 [3] [e]).

DOE nevertheless argues that the appeal should be dismissed because petitioner waited an unreasonably long amount of time to request co-location.[3]  Education Law § 2853 (3), however, does not contain a deadline by which a charter school must submit a request for space.  Moreover, there is no harm to respondent as petitioner only seeks co-location or rental assistance on a prospective basis.  Thus, respondent has failed to establish the applicability of the defense of laches (Appeal of Gehl, et al., 42 Ed Dept Rep 287, Decision No. 14,857; see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,889). 

Accordingly, DOE must pay petitioner, commencing with the 2023-2024 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, rental assistance based on student enrollment in the requested grade.[4]  Petitioner must present DOE with evidence of the amount of the actual rental cost of an alternative privately-owned site attributable to the grade-level expansion so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law § 2853 (3) (e) (5) (B).

I understand DOE’s concern that Pharos is obtaining relief on a request for co-location of a single grade that is ten years old.[5]  Nevertheless, I am constrained by the language of Education Law § 2853 (3) (e) to award relief to petitioner.

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.


IT IS ORDERED that respondent comply with the requirements of Education Law § 2853 (3) (e) (5) in accordance with this decision and pay for the school’s grade 12 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 grade 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).



[1] Pursuant to 8 NYCRR 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.


[2] According to petitioner, as a result of DOE’s failure to offer space or rental assistance, petitioner will incur rental costs and expenses.


[3] Specifically, DOE argues for the applicability of the affirmative defense of laches, a legal doctrine that bars “the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party” (Markell v. Markell, 91 AD3d 832, 834 [3d Dept 2012] [quoting Skrodelis v. Norbergs, 272 AD2d 316 (2d Dept 2000)]).


[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] Neither party has explained how petitioner’s grade 12, as opposed to the rest of its high school, would be co-located within a public school.