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Summary of the Provisions of §276.11 of the Commissioner’s Regulations Pertaining to Appeals Involving New York City Charter School Location/Co-location and Building Usage Plans.

Please note:   Special procedures for appeals relating to New York City charter school location/co-location and building usage plans brought pursuant to Education Law  §§ 2853(3)(a-5) or 2853(3)(e) have been established in Section 276.11 of the Commissioner’s Regulations because of the short time frames within which appeals must be decided.  Otherwise, the procedures contained in Parts 275 and 276 of the Commissioner’s Regulations for section §310 appeals will apply, unless there is an explicit exception in the regulation.  For example, the regulations explicitly provide that a stay order is not available in such an appeal because a final decision can be rendered within a few days of the earliest date on which a stay order could be issued.  An example of a provision that does apply to appeals relating to New York City charter school location/co-location and building usage plans is §275.16, which requires that petitioners commence appeals within 30 days of the decision or action being challenged. (Return to Education Law and Regulations of the Commissioner of Education Relating to Appeals and Other Proceedings Before the Commissioner for complete text of the regulations).

Applicability (§276.11[b][1]):

The provisions of this section only apply to appeals from:

  • final determinations to locate or co-locate a charter school within a public school building;
  • implementation of or compliance with a building usage plan; and/or revisions of a building usage plan in a building that has been identified by the NYC Chancellor for location or co-location of a charter school
  • the offer or failure to offer, upon written request of new or expanding charter school, a co-location site in a public school building or reasonable, appropriate and comparable space in a privately or publicly owned facility in the community school district served by the charter school

Because of the abbreviated timeframes for these appeals, §276.11 provides for special procedures as follows:

Petition (§276.11[c]):

  • The petition must include a special Notice of Petition identifying the appeal as a NYC Charter School Location/Co-location appeal (Notice).  A petition that does not include this special notice will be considered a non-expedited appeal  under Education Law section 310 and  the procedures in §276.11 will not apply.
  • The petition may not include any claims challenging actions of the New York City Department of Education, or any other respondent,  other than claims relating to the Location/ Co-location of a charter school, as described above in the “Applicability” section (§276.11[b][1]).   If such other claims are raised, they will be dismissed without prejudice to commencing a regular non-expedited §310 appeal.
  • A memorandum of law is not required.  However, if one is filed, it must be served with the petition.
  • The petition cannot include a Stay request.
  • The petition must be served by personal delivery in accordance with §275.8 upon both the New York City Department of Education and each charter school that would be affected by the decision in the appeal.

Filing (§276.11[d]):

After service on the other parties, the petition and all subsequent pleadings and supporting papers discussed below, must be filed with the State Education Department’s Office of Counsel by:

  • personal delivery;
  • express mail delivery: or
  • equivalent means reasonably calculated to assure receipt of such pleading or paper within one business day of service.

Subsequent pleadings and supporting papers (§276.11[e]):

  • An answer must be served within 10 business days of service of the petition;
  • A reply must be served within 2 business days of service of the answer;
  • The Commissioner may excuse late service of answer or reply for good cause beyond the control of the requesting party. 
  • Service of the answer and reply must be made by personal delivery or next day delivery by express mail or a private express delivery service, in accordance with the provisions of §275.8(b) of the Commissioner’s regulations;
  • With the consent of the receiving party, service of the answer or reply may be made by electronic mail (e-mail) communication; 

Memoranda of Law (§276.11[f]) :

  • Memoranda of law, consisting of the parties' arguments of law, are not required but may be submitted by any party to an appeal.
  • Petitioner’s memorandum of law must be served and filed with the petition;
  • Respondents’ memorandum of law must be served and filed with the answer;
  • Petitioner’s reply memorandum of law must be served and filed with the reply.

Additional pleadings, affidavits, exhibits and other supporting papers (§276.11[g]): 

  • The Commissioner may require the submission of these additional documents.